Miller v. Facebook, Inc. et al

Filing 77

MOTION for Administrative Relief, Pursuant to Civil Local Rule 7-11, To Allow Supplementation of the Record Pertaining to Facebook, Inc.'s Motion to Dismiss Pursuant to Rule 41(B), F.R.C.P. filed by Daniel M. Miller. (Attachments: # 1 Affidavit Declaration of Brian D. Hancock In Support of Plaintiff's Motion for Administrative Relief, # 2 Exhibit Exhibit (MSA Second Page), # 3 Proposed Order Proposed Order Granting Plaintiff's Motion for Administrative Relief)(Hancock, Brian) (Filed on 9/9/2010)

Miller v. Facebook, Inc. et al

Doc. 77

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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, Alabama 35203 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Plaintiff, DANIEL M. MILLER UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: CV-10-264 (WHA)

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

PLAINTIFF DANIEL M. MILLER'S
MOTION FOR ADMINISTRATIVE RELIEF, PURSUANT TO CIVIL LOCAL RULE 7-11, TO ALLOW SUPPLEMENTATION OF THE RECORD PERTAINING TO FACEBOOK, INC.'S MOTION TO DISMISS PURSUANT TO RULE 41(B), F.R.C.P.

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PLAINTIFF'S MOTION FOR ADMINISTRATIVE RELIEF TO ALLOW SUPPLEMENTATION OF THE RECORD PERTAINING TO FACEBOOK, INC.'S MOTION TO DISMISS PURSUANT TO RULE 41(B), FRCP CV-10-264 (WHA)

Dockets.Justia.com

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COMES NOW Plaintiff Daniel M. Miller ("Plaintiff"), pursuant to Civil Local Rule 7-11, and moves this Honorable Court to allow for the supplementation of the record in this matter pertaining to Facebook, Inc.'s Motion to Dismiss Pursuant to Rule 41(b), F.R.C.P., ("Facebook's Motion") (Dkt. No. 70) by appending the second page of the Mailbox Services Agreement between Defendant Yao Wei Yeo ("Yeo") and UPS Store 5865 to Plaintiff's Response in Opposition to Facebook's Motion (Dkt. No. 72-1). In support thereof, Plaintiff states the following: 1. On June 10, 2010, the Plaintiff served a subpoena duces tecum on UPS Store 5865

in New York, New York, which was responded to by UPS on June 18th by providing a "Mailbox Service Agreement" ("MSA") and "Application for Delivery of Mail Through Agent" form evidencing Yeo's opening of Mailbox 246 at UPS Store 5865 on March 21, 2010. 2. These documents were attached as an exhibit to Plaintiff's Response in Opposition

to Facebook's Motion (Dkt. No. 72-1) that was filed with the Court on August 26, 2010. 3. The first page of the MSA was produced to undersigned counsel's office in

response to the Plaintiff's subpoena. Upon calling the UPS Store, shortly after this production, to inquire as to whether all responsive documents had been produced, undersigned counsel's office was informed by UPS that a full production had been made. 4. On September 7, 2010, undersigned counsel again contacted UPS Store 5865 to

inquire as to whether a full production had been made in response to the June 10th subpoena. As a result of this inquiry, the second page of the MSA previously overlooked by UPS (attached hereto as an exhibit) was faxed to undersigned counsel's office on that same date, September 7th, as is evident from the fax signature at the bottom of the page. On that same date, September 7th, a PDF copy of Page 2 of the MSA was forward to counsel for Facebook via electronic mail.
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PLAINTIFF'S MOTION FOR ADMINISTRATIVE RELIEF TO ALLOW SUPPLEMENTATION OF THE RECORD PERTAINING TO FACEBOOK, INC.'S MOTION TO DISMISS PURSUANT TO RULE 41(B), FRCP CV-10-264 (WHA)

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5.

Since the Plaintiff came into possession of Page 2 of the MSA after his Response in

Opposition to Facebook's Motion, and attached exhibits, had already been filed with the Court, and since Page 2 of the MSA is relevant and directly pertinent to the issues raised in Facebook's Motion, the Plaintiff would ask that the Court allow Page 2 of the MSA to be appended to, and incorporated with, the exhibits contained in Dkt. No. 72-1 that were filed with the Plaintiff's Response in Opposition to Facebook's Motion, on August 26th, so that Page 2 will be a part of the evidentiary record before the Court. 6. Plaintiff's counsel has conferred with counsel for Defendant Facebook, Inc.,

explaining the circumstances as set forth herein and seeking a stipulation as to the relief requested, but Facebook has failed to so stipulate. WHEREFORE PREMISES CONSIDERED, the Plaintiff respectfully seeks the administrative relief herein requested and all other relief deemed appropriate and just by the Court. Dated: September 9, 2010 Respectfully submitted, s/ Brian D. Hancock BRIAN D. HANCOCK (pro hac vice) HENINGER GARRISON DAVIS, LLC 2224 1st Avenue North Birmingham, Alabama, 35203 Telephone: [phone] Facsimile: [phone] Email: [e-mail] ATTORNEY FOR PLAINTIFF

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PLAINTIFF'S MOTION FOR ADMINISTRATIVE RELIEF TO ALLOW SUPPLEMENTATION OF THE RECORD PERTAINING TO FACEBOOK, INC.'S MOTION TO DISMISS PURSUANT TO RULE 41(B), FRCP CV-10-264 (WHA)