The Facebook, Inc. v. Connectu, Inc et al

Filing 31

Declaration of Theresa A. Sutton in Support of Facebrook's MOTION to Enlarge Time to Respond to Motion to Dismiss Pursuant to Fed R Civ P 12(B)( 30 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 30 ) (Chatterjee, I.) (Filed on 4/4/2007) Modified on 4/5/2007 (bw, COURT STAFF).

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The Facebook, Inc. v. Connectu, LLC et al Doc. 3 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 26 27 28 G. HOPKINS GUY, III (State Bar No. 124811) I. NEEL CHATTERJEE (State Bar No. 173985) MONTE COOPER (State Bar No. 196746) THERESA A. SUTTON (State Bar No. 211857) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: 650-614-7400 Facsimile: 650-614-7401 Attorneys for Plaintiff The Facebook, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA THE FACEBOOK, INC., Plaint iff, v. CONNECTU LLC, PACIFIC NORTHWEST SOFTWARE and WINSTON WILLIAMS, Defendants. Case No. 5:07-CV-01389-RS DECLARATION OF THERESA A. SUTTON IN SUPPORT OF FACEBOOK'S MOTION TO ENLARGE TIME TO RESPOND TO MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(2) OHS West:260207433.1 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 26 27 28 I, Theresa A. Sutton, declare as follows: 1) I am an attorney with the law firm of Orrick, Herrington & Sutcliffe LLP, counsel for Plaintiff The Facebook, Inc. I make this Declaration in support of Facebook's Motion to Enlarge Time to Respond to Defendants' Motion to Dismiss Pursuant to Rule 12(b)(2). I am an active member in good standing of the California State Bar. I have personal knowledge of the facts stated herein and if called as a witness, could and would competently testify thereto. 2) Facebook seeks an order enlarging the time for it to respond to defendants Pacific Northwest Software and Winston Williams' Motion to Dismiss to enable Facebook to engage in limited discovery directed at this Court's exercise of personal jurisdiction over these defendants. Facebook will file a Motion for Expedited Discovery re Personal Jurisdiction in which it sets forth the basis for the discovery it seeks. In short, well-established Ninth Circuit law permits a plaintiff to engage in jurisdictional discovery when faced with a motion to dismiss for lack of personal jurisdiction. Based on the information currently within Facebook's possession, it is confident that the defendants, Pacific Northwest Software and Winston Williams, have sufficient contacts with California such that this Court may exercise jurisdiction over them. The discovery Facebook seeks will enable it to provide the Court with a full and complete record. Because Facebook's opposition is currently due on April 11, 2007, however, Facebook seeks an extension of time to accommodate its need for jurisdictional discovery. As a result, the current May 2, 2007 hearing date on defendants' motion also must be rescheduled. 3) On April 2, 2007, I sent an email to Scott Mosko, Defendants' counsel, asking him to agree to extend the time for Facebook to respond to Defendants' motion to dismiss and permit Facebook to engage in jurisdictional discovery. I also left Mr. Mosko a voice message to this effect on the same day. Attached hereto as Exhibit A is a true and correct copy of my email to Mr. Mosko. Mr. Mosko responded to my email and voicemail indicating an unwillingness to stipulate to the requested extension and discovery. He also stated that he was unavailable to further discuss Facebook's request until Friday, April 6, 2007 -- a day by which Facebook would be unable to obtain from the Court the relief it seeks if Mr. Mosko ultimately refuses to agree to an extension of time. Attached hereto as Exhibit B is a true and correct copy OHS West:260207433.1 -2- 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 26 27 28 of Mr. Mosko's email to me. In response, I indicated to Mr. Mosko that Facebook would file its Motion to Enlarge Time and Motion for Expedited Discovery but would agree to withdraw them if Mr. Mosko ultimately agreed to Facebook's requests. Attached hereto as Exhibit C is a true and correct copy of my email to Mr. Mosko. Mr. Mosko instructed me to call him at 4:45 p.m. on Friday, April 6. 4) If the Court were to deny Facebook's request to enlarge the time for Facebook to respond to the defendants' motion to dismiss, Facebook would be unable engage in limited jurisdictional discovery and, as a result, would be unable to provide a full and complete record in support of its response to said motion. 5) No other time modifications have been made in this case. The requested time modification will have no impact on the schedule of this matter (other than to the present motion) as none has been set at this time. I declare under penalty of perjury that the foregoing is true and correct. Executed this 4th day of April, 2007, at Cupertino, California. /s/ Theresa A. Sutton /s/ Theresa A. Sutton OHS West:260207433.1 -3-

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