Public.Resource.org v. Sheet Metal and Air Conditioning Contractors' National Association, Inc.

Filing 18

Declaration of Corynne McSherry in Support of 17 MOTION for Default Judgment by the Clerk as to Sheet Metal and Air Conditioning Contractors' National Association, Inc. filed byPublic.Resource.org. (Related document(s) 17 ) (Varellas, James) (Filed on 5/6/2013)

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MATTHEW ZIMMERMAN (CSB No. 212423)
[e-mail]
CORYNNE MCSHERRY (CSB No. 221504)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
DAVID HALPERIN (Admitted Pro Hac Vice)
[e-mail]
3333 14th Street NW, Suite 205
Washington, DC 20010

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LAW
AT

MOUNTAI N VI EW

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ATTO RNEY S

F ENWICK & W ES T LLP

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ANDREW P. BRIDGES (CSB No. 122761)
[e-mail]
JAMES J. VARELLAS III (CSB No. 253633)
[e-mail]
KATHLEEN LU (CSB No. 267032)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104

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Attorneys for Plaintiff
PUBLIC.RESOURCE.ORG

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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PUBLIC.RESOURCE.ORG,
Plaintiff,

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Case No.: 3:13-cv-00815 SC
DECLARATION OF CORYNNE
MCSHERRY IN SUPPORT OF
PUBLIC.RESOURCE.ORG’S
REQUEST FOR CLERK’S ENTRY OF
DEFAULT

v.

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SHEET METAL AND AIR CONDITIONING
CONTRACTORS’ NATIONAL
ASSOCIATION, INC.,

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Defendant.

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CORYNNE MCSHERRY DECLARATION
IN SUPPORT OF REQUEST FOR DEFAULT
CASE NO.: 3:13-CV-00815 SC

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I, Corynne McSherry, declare pursuant to 28 U.S.C. § 1746 as follows:

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1.

I am an attorney licensed to practice in California and before this Court. I am

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Intellectual Property Director at the Electronic Frontier Foundation and counsel for Plaintiff

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Public.Resource.Org (“Plaintiff”). I submit this declaration in support of Plaintiff’s Request for

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Clerk’s Entry of Default with personal knowledge of the facts I state.

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2.

On March 1, 2013, I sent a Notice of a Lawsuit and Request to Waive Service of a

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Summons (the “Notice”) to Jon L. Farnsworth of the law firm of Felhaber, Larson, Fenlon &

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Vogt P.A., counsel for Defendant Sheet Metal and Air Conditioning Contractors’ National

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Association, Inc. (Dkt. No. 11.)

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3.

Mr. Farnsworth returned to me a signed Waiver of the Service of Summons, dated

LAW
AT

MOUNTAI N VI EW

March 14, 2013 (the “Waiver”), which included the statement that “I also understand that I, or the

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ATTO RNEY S

F ENWICK & W ES T LLP

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entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from

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March 1, 2013, the date when this request was sent.” (Dkt. No. 11.)

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4.

On March 20, 2013, I filed with the Court copies of the following documents: (1)

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the Waiver signed by Mr. Farnsworth; (2) the Notice I sent Mr. Farnsworth; (3) the notarized

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Affidavit of Mailing for Mr. Farnsworth’s signed Waiver, dated March 14, 2013; and (4) the

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Certificate of Service for my service on Mr. Farnsworth of the Clerk’s Notice Scheduling Case

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Management Conference on Reassignment, the Order Reassigning Case to Judge Samuel Conti,

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the Notice of Impending Reassignment to a United States District Court Judge and a printout of

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Judge Conti’s court webpage, dated March 19, 2013. (Dkt. No. 11.)

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5.

Under Rule 12 of the Federal Rules of Civil Procedure, and as noted in the Waiver

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signed by Mr. Farnsworth, Defendant was required to respond to Public.Resource.Org’s

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Complaint for Declaratory and Injunctive Relief (the “Complaint”) within 60 days of March 1,

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2013. Accordingly, Defendant’s deadline to respond to the Complaint was April 30, 2013. As of

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May 6, 2013, Defendant has not responded to the Complaint.

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6.

On May 2, 2013, I emailed Mr. Farnsworth to inquire as to whether his client

intended to respond to the Complaint. On May 3, 2013, Mr. Farnsworth replied to my email and

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CORYNNE MCSHERRY DECLARATION
IN SUPPORT OF REQUEST FOR DEFAULT
CASE NO.: 3:13-CV-00815 SC

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advised me that'oour client is not intending on filing a responsive pleading." A copy of this email

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exchange is

Exhibit 1 to this Declaration.

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I declare under penalty of perjury

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EXECUTED this 6th dav of Mav. 2013.

that the foregoing is true and correct.

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CORYNNE MCSI{ERRY DECLARATION
IN SUPPORT OF REQUEST FOR DEFAULT
CASE NO.: 3:13-CV-00815 SC

CORYNNE MCSHERRY

EXHIBIT 1

From:
Subject:
Date:
To:

"Jon L. Farnsworth" <[e-mail]>ê
RE: PRO v. SMACNA [FELHABER-worksite.FlD377165]
May 3,2013 11:17:28 AM PDT
Corynne McSherry <[e-mail]>
1

Attachment,

.10

KB

Corynne,

I appreciate your email; however, our client is not intending on filing a responsive pleading.
Jon L. Farnsworth

Attorney
Felhaber, Larson, Fenlon & Vogt P.A.
ifarnsworth @fel ha ber.com
Direct: [phone]
Fax: (65L) 222-8905
Main: (65t1222-632L
444 Cedar Street
Suite 2L00
St. Paul, MN 55101-2136
www.felhaber.com
Twitter: http ://twitter. co m /# ! /Jo n Fa rn swo rth
Li n ked I n : http ://www. li n ked i n. co m/i n /jo nfa rnsworth

NOTICE OF PRIVILEGE AND CONFIDENTIALITY:This e-mail message contains confidential information
and may be a privileged attorney-client communication and/or attorney work product. lf you are not
the intended recipient, any dissemination, distribution, copying or action taken or omitted in reliance on
it is strictly prohibited. lf you received this communication in error, please immediately notify us by
telephone, and delete the original and destroy any copies of the message. Thank you.

this communication concerns negotiation of a contract or
agreement, this communication does not indicate agreement to conduct transactions by electronic
means under Minn. Statute S 3251.05 or other applicable electronic transactions law.
ELECTRONIC TRANSACTION DISCLAIMER: lf

From : Corynne McSherry [mailto : corynne@eff. org]
Sent: Thursday, May 02,2013 1:35 PM
To: Jon L. Farnswofth

Cc: Andrew Bridges; Kathleen Lu; James Varellas; David Halperin
Subject: PRO v. SMACNA

Dear Jon,
We were surprised that your client did not file a response to Public.Resource.Org's Complaint in
the above mãtter on April 30 (the f,rling deadline noted in the docket.) We assumed there had been
some logistical problem on your end, but note that there is still no response as of this morning.
Please let me know as soon as possible whether your client intends to respond and, if so, the
reason for the delay. As you can imagine, my client is eager to resolve this matter promptly.
Please also meet my co-counsel for this matter, Andrew Bridges, Kathleen Lu, and James Varellas
(of Fenwick & West, LLP), and David Halperin, all cc'd. I can remain your primary point of
contact but if I am unavailable please feel free to reach out to them.

If your firm is no longer lead on this matter, please let me know.
Best regards,
Corynne

*********************************

Corynne McSherry
Intellectual Property Director, EFF
815 Eddy Street, San Francisco, CA 94109
415-436-9333 x 122
Help EFF protect your rights! www.eff.org/join