Miller v. Facebook, Inc. et al

Filing 70

MOTION to Dismiss Pursuant to Fed.R.Civ.P. 41(b) filed by Facebook, Inc.. Motion Hearing set for 9/16/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order, # 2 Affidavit)(Gray, Thomas) (Filed on 8/4/2010)

Miller v. Facebook, Inc. et al

Doc. 70 Att. 2

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL M. MILLER, Plaintiff, v. FACEBOOK, INC. and YAO WEI YEO, Defendants.

Case No. 5:10-CV-00264 (WHA) DECLARATION OF THOMAS J. GRAY IN SUPPORT OF FACEBOOK, INC.' MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 41(B) Date: Time: Court: Judge: September 16, 2010 8:00 A.M. Courtroom 9, 19th Floor Honorable William Alsup

OHS West:260965121.1

GRAY DECL ISO FACEBOOK'S MOTION TO DISMISS 5:10-CV-00264 (WHA)

Dockets.Justia.com

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I, Thomas J. Gray, declare as follows: 1. I am a partner with the law firm of Orrick, Herrington & Sutcliffe LLP, counsel for

defendant Facebook, Inc., in this matter. I make this declaration, based on my own personal knowledge, in support of Facebook, Inc's Motion to Dismiss Pursuant to Fed.R.Civ.P. 41(b). 2. Attached hereto as Exhibit A is a true and correct copy of the May 26, 2010,

Declaration of Douglas Bridges. 3. Attached hereto as Exhibit B is a true and correct copy of relevant excerpts of the

May 27, 2010, Reporter's Transcript of Hearings in this matter. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 4th day of August, 2010 at Orange County, California.

/s/ Thomas J. Gray /s/ Thomas J. Gray

OHS West:260965121.1

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GRAY DECL ISO FACEBOOK'S MOTION TO DISMISS 5:10-CV-00264 (WHA)

EXHIBIT A

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D. GILL SPERLEIN (172887) THE LAW OFFICE OF D. GILL SPERLEIN 584 Castro Street, Suite 879 San Francisco, California 94114 Telephone: [phone] Facsimile: [phone] [e-mail] DOUGLAS L. BRIDGES (pro hac vice) HENINGER GARRISON DAVIS LLC 1 Glenlake Parkway, Suite 700 Atlanta, Georgia 30328 Telephone: [phone] Facsimile: [phone] [e-mail] BRIAN D. HANCOCK (pro hac vice) HENINGER GARRISON DAVIS LLC 2224 1st Avenue North Birmingham, AL 35203 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Plaintiff, DANIEL M. MILLER

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION DANIEL M. MILLER, Plaintiff, vs. FACEBOOK, INC. and YAO WEI YEO, Defendants. ) ) CASE NO.: CV-10-264 (WHA) ) ) DECLARATION OF ) DOUGLAS L. BRIDGES ) ) ) ) ) )

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DECLARATION OF DOUGLAS L. BRIDGES C-10-264 (WHA)

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I, Douglas L. Bridges, declare as follows: 1. My name is Douglas L. Bridges. I am over eighteen years of age and am

competent to testify about the matters set forth herein. I have personal knowledge of the matters set forth herein. 2. I am an attorney at Heninger Garrison Davis, LLC, 1 Glenlake Parkway, Suite 700,

Atlanta, Georgia, 30328, the law firm representing Plaintiff Daniel M. Miller. 3. After filing the Complaint in the Northern District of Georgia, we performed a

diligent search to find Defendant Yao Wei Yeo so that we could serve the complaint upon Mr. Yeo. 4. We had previously communicated with Mr. Yeo through an address at a dormitory

at Cornell University in Ithaca, NY. 5. When attempting communication with that dormitory at a later date, we were told

that Mr. Yeo had graduated and was no longer living in New York. 6. Yeo. 7. Yeo. 8. In September, 2009, Mr. Yeo's company, Zwigglers, informed Apple Computer Attached hereto as Exhibit A is a complete corpus of information related to Mr. We performed a diligent search on the Internet for any information regarding Mr.

that it believed a third party, Aaron Ardiri, was infringing Zwigglers' common law "copyright" in ChainRxn. 9. As a result of Zwigglers' complaint to Apple, Apple sent an email to Aaron Ardiri

noticing him of the allegation of infringement and providing Mr. Ardiri a contact phone number to discuss the alleged infringement with Zwigglers.
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DECLARATION OF DOUGLAS L. BRIDGES C-10-264 (WHA)

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10.

Mr. Ardiri provided Plaintiff Miller with the Zwigglers contact phone number that

was provided to Mr. Ardiri. 11. Attached hereto as Exhibit B is a true and correct copy of the email from Mr. Ardiri

to Plaintiff Miller. 12. I attempted to contact Zwigglers through this contact phone number; however, no

person ever answered the phone number. 13. The voice mail system associated with the contact phone number was not

configured, so no message could be left at the contact phone number. 14. After receiving the phone number, I engaged Intelius, Inc. to perform a reverse

phone number look-up based upon the contact phone number and provide a report regarding the look-up ("the Intelius report"). 15. 16. A true and correct copy of the Intelius report is attached hereto as Exhibit C. The Intelius report provided a previous owner of the contact phone number and a

current owner of the phone number, neither of which were Mr. Yeo. 17. 18. Mr. Yeo. 19. MLQ Attorney Services searched the Internet for public information related to Mr. I also engaged MLQ Attorney Services to locate an address for Mr. Yeo. MLQ Attorney Services did not find any public addresses or telephone numbers for

Yeo and provided entirely duplicative information from the Internet as that included in Exhibit A. 20. After filing suit, I had discussions with Mr. Craig W. Clark, in-house IP counsel for

Defendant Facebook, Inc.

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DECLARATION OF DOUGLAS L. BRIDGES C-10-264 (WHA)

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21.

During my discussions with Mr. Clark, he represented that Facebook would not

oppose discovery efforts against Facebook regarding information on Mr. Yeo if Plaintiff Miller would dismiss his suit against Facebook. 22. After the Court in the Northern District of Georgia transferred the matter to the

Northern District of California, Mr. Clark again represented that Facebook, Inc. would not oppose discovery efforts against Facebook for information regarding Yeo if Plaintiff Miller would dismiss his suit against Facebook. I declare under penalty of perjury that the foregoing is true and correct.

May 26, 2010_________________ Date

_/s/ Douglas L. Bridges_________________ Douglas L. Bridges

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DECLARATION OF DOUGLAS L. BRIDGES C-10-264 (WHA)

EXHIBIT B

Pages 1 - 30 United States District Court Northern District of California Before The Honorable William Alsup Daniel M. Miller, ) ) Plaintiff, ) ) vs. ) ) Facebook, Incorporated, ) et al., ) ) Defendant. ) ____________________________)

No. C10-264 WHA

San Francisco, California Thursday, May 27, 2010

Reporter's Transcript Of Proceedings Appearances: For Plaintiff: By: For Defendant: By: The Law Office of D. Gill Sperlein 584 Castro Street, Suite 879 San Francisco, California 94114 D. Gill Sperlein, Esquire Orrick, Herrington & Sutcliffe 1000 Marsh Road Menlo Park, California 94025 Indra Neel Chatterjee, Esquire

Reported By:

Sahar McVickar, RPR, CSR No. 12963 Official Reporter, U.S. District Court For the Northern District of California (Computerized Transcription By Eclipse)

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things.

THE COURT:

I've given you a lot of time to get him

in the case, and you never got him in the case, and now you say, well, ask the lawyer in Georgia. MR. SPERLEIN: Well, let me just respond to two

First of all, I understand what you said.

I fully

tried to anticipate all of the questions that you would have. I spent an hour on the phone yesterday with co-counsel, followed up with e-mails, and really tried to get answers to any questions that you might ask. And I apologize that there I perhaps should have

were a few that I couldn't respond to.

been -- drilled them a little bit further. THE COURT: I want to know, did somebody get in

touch with Mr. Yeo by e-mail, say, in the last seven months? MR. SPERLEIN: I can say no to that. I know that

there was this earlier e-mail exchange through the plaintiff before counsel was in the case. I don't know if it was any

earlier, but certainly after they filed the case, my impression is that they were not able to contact him at all. Now, I think we can find him. Like I said earlier,

we can look at where his game currently resides and know where those servers are and go to that company that hosts those servers and say, who is -- who do these files belong to. Most

likely, he has some sort of payment with them, so -- and an address, and whatnot, but we can't just go to them and ask them

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]

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that, we need a subpoena. THE COURT: Why -- in other cases the plaintiff

comes to me right at the outset, I sign an order that gives them the right to go to the -- what is it called, IPO? MR. SPERLEIN: THE COURT: court order. You know, seems to me like that should have been done in this case a long time ago, and that there is an aura about this case that you are trying to just go after the deep pockets and make life miserable for them and make these grumbling noises about Mr. Yeo without doing anything to bring him into the case, and that has not such a good flavor to it. MR. SPERLEIN: THE COURT: I absolutely -ISP, sir.

And they turn that information over by

So if I allow this case to go forward, And maybe the

maybe it's going to go to the Court of Appeals.

guy from Georgia will get on an airplane and come out here and go to the Ninth Circuit. He is not spending the money

prosecuting this case if it's worth so much money. MR. SPERLEIN: Your Honor, irrespective of what

co-counsel has done to this point, I can give you my word that shall we go forward, we will take immediate steps to identify where Mr. Yao is and get him served. have him in this case. I certainly desire to

I think he is important to the factual

record, and I want him before the Court.

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31. subject.

THE COURT:

All right.

I'm going to change the

Without prejudice to possibly tossing the entire case I got

out, I'm going to give you your case management order. to get this at some point.

All initial disclosures have already been done, but I'm going to give you to June 4th to do them. Leave to add any

disclosures are just, you know, you list what -- you don't have to produce anything. You just have to disclose it. Like You

employment file on plaintiff or contract with Mr. Yeo. have to list what you are going to rely on.

Leave to add any new parties or pleading amendments and to serve Yeo is going to be July 30. MR. SPERLEIN: THE COURT: July 30? If he is not in the case by then,

Yes.

I may just throw the whole thing out. Expert -- I'm sorry, fact discovery cutoff, January Expert designations, January 31. Last date to file

summary judgment, March 3. March 18th.

Final pretrial conference,

Jury trial, March -- final pretrial conference, Jury trial on April 25. This case will

April 18th, next year.

be referred to Judge Bernard Zimmerman for mediation and settlement. Okay, anyone want to talk me out of those dates? MR. SPERLEIN: Just check one thing.

March 3rd deadline to file summary judgment motions,

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]

CERTIFICATE OF REPORTER

I, Sahar McVickar, Official Court Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings were reported by me, a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing. The validity of the reporter's

certification of said transcript may be void upon disassembly and/or removal from the court file.

/s/ Sahar McVickar Sahar McVickar, RPR, CSR No. 12963 Thursday, June 3, 2010

Sahar McVickar, C.S.R. No. 12963, RPR Official Court Reporter, U.S. District Court [phone]