Almeida v. Google, Inc.

Filing 36

Declaration of Michael V. Storti in Support of 35 Reply Memorandum, filed byDavid Almeida. (Related document(s) 35 ) (Storti, Michael) (Filed on 10/16/2009)

Almeida v. Google, Inc.

Doc. 36

Case5:08-cv-02088-RMW Document36

Filed10/16/09 Page1 of 11

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

BRIAN S. KABATECK, SBN 152054 ([e-mail]) RICHARD L. KELLNER, SBN 171416 ([e-mail]) ALFREDO TORRIJOS, SBN 222458 ([e-mail]) KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, California 90017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff David Almeida UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DAVID ALMEIDA, individually and on behalf of all others similarly situated, Plaintiff, vs. GOOGLE, INC., a Delaware Corporation; and DOES 1 through 10, inclusive, Defendants. CASE NO. CV 08-02088 RMW HON. RONALD M. WHYTE DECLARATION OF MICHAEL V. STORTI IN SUPPORT OF REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AND TO SET NEW CASE MANAGEMENT CONFERENCE Hearing Date: October 30, 2009 Time: 9:00 a.m. Courtroom: 6 DECLARATION OF MICHAEL V. STORTI I, Michael V. Storti, declare as follows: 1. I am over the age of 18 and a resident of California. I make this declaration of my personal and first-hand knowledge, and, if called and sworn as a witness, I would and could testify competently hereto.

DECLARATION OF MICHAEL V. STORTI IN SUPPORT OF REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT (CV 08-02088 RMW)
Dockets.Justia.com

Case5:08-cv-02088-RMW Document36

Filed10/16/09 Page2 of 11

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

2.

I am an attorney admitted to practice in the state California. I am an

associate at the law firm of Kabateck Brown Kellner LLP and I am one of the attorneys representing plaintiff David Almeida ("Plaintiff") in this action. 3. Attached hereto as Exhibit "A" is a true and correct copy of an email exchange between David Silbert, counsel for Google, and myself. On August 10, 2009, Mr. Silbert sent a revised stipulation of dismissal. The revised stipulation does not contain a provision waiving Google's claims against Plaintiff. It does, however, include language stating that Plaintiff lacks standing and that the claim must be dismissed pursuant to Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018 (9th Cir.). On August 11, 2009, I responded with Plaintiff's revisions to the proposed stipulation, which removed the provisions dealing with Plaintiff's standing and Lierboe. Plaintiff's revisions did not include any waiver of Google's claims against Plaintiff. 4. Attached hereto as Exhibit "B" is a true and correct copy of the attachment to the email the August 11, 2009 email that is Exhibit A to this declaration. Exhibit B shows Plaintiff's revisions to the stipulation of dismissal proposed by Google. 5. Attached hereto as Exhibit "C" is a true and correct copy of an email from Mr. Silbert, dated August 13, 2009, in which he does not agree to Plaintiff's revisions to the proposed stipulation of dismissal and suggests that Plaintiff file a motion. I declare under penalty of perjury that the foregoing is true and correct, executed on October 16, 2009 in Los Angeles, California. /s/ Michael V. Storti
2 DECLARATION OF MICHAEL V. STORTI IN SUPPORT OF REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT (CV 08-02088 RMW)

Case5:08-cv-02088-RMW Document36

Filed10/16/09 Page3 of 11

EXHIBIT A

Page 1 of 1 Case5:08-cv-02088-RMW Document36 Michael Storti
From: Sent: To: Subject: David, Attached are plaintiff's revisions to the stipulation. Let me know if these are acceptable. Thanks, Michael Storti
Kabateck Brown Kellner LLP 644 South Figueroa Street Los Angeles, CA 90017 [phone] (main) [phone] (direct) [phone] (fax) www.kbklawyers.com [e-mail]

Filed10/16/09 Page4 of 11

Michael Storti Tuesday, August 11, 2009 4:53 PM 'David Silbert' RE: Almeida v. Google

Attachments: Stipulation (KBK edits).DOC

From: David Silbert [mailto:[e-mail]] Sent: Monday, August 10, 2009 3:01 PM To: Michael Storti Subject: Almeida v. Google

Hi Michael: Heres a revised proposed stipulation, which I think youll be happy with. If so, you can sign for us and file. Give me a call if youd like to discuss.
David J. Silbert Keker & Van Nest, LLP 710 Sansome Street San Francisco, CA 94111 [phone] [e-mail] www.kvn.com
This message is intended only for the use of the people to whom it is addressed. The message is confidential, and may contain attorney-client information, attorney work product or other privileged information. If you are not the intended recipient, you are hereby notified that any use or dissemination of this message is prohibited. If you received this message in error, please notify the sender by hitting the "Reply" button, then delete the message.

10/13/2009

Case5:08-cv-02088-RMW Document36

Filed10/16/09 Page5 of 11

EXHIBIT B

Case5:08-cv-02088-RMW Document36

Filed10/16/09 Page6 of 11

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
448858.01

BRIAN S. KABATECK, SBN 152054 ([e-mail]) RICHARD L. KELLNER, SBN 171416 ([e-mail]) ALFREDO TORRIJOS, SBN 222458 ([e-mail]) KABATECK KELLNER LLP 644 South Figueroa Street Los Angeles, California 90017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff and the Proposed Class

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION DAVID ALMEIDA, individually and on behalf of all others similarly situated, Plaintiff, v. GOOGLE INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants. Case No. C 08-02088 RMW STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(a)(1) Judge: Hon. Ronald M. Whyte

STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(a)(1) CASE NO. C 08-02088 RMW

Case5:08-cv-02088-RMW Document36

Filed10/16/09 Page7 of 11

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
448858.01

Through this Stipulation, and for the reasons set forth below, plaintiff David Almeida ("Plaintiff") and defendant Google, Inc. ("Defendant") stipulate to the dismissal, with prejudice, of Plaintiff's claims against Defendant, pursuant to Federal Rule of Civil Procedure 41(a)(1): WHEREAS, on or about April 22, 2008, Plaintiff commenced the above captioned action on behalf of himself and a putative class; WHEREAS, on or about July 14, 2008, Defendant filed its answer; WHEREAS, the parties have determined that Plaintiff was never himself a member of the class that he seeks to represent; WHEREAS, the parties agree that under Lierboe v. State Farm Mutual Automobile Insurance Co., 350 F.3d 1018, 1023 (9th Cir. 2003), the appropriate course under these circumstances is dismissal of the action; WHEREAS, Fed. R. Civ. P. 41(a)(1)(A)(ii) allows for voluntary dismissal without court order by a stipulation signed by all parties who have appeared; and WHEREAS, the putative class has not been certified. IT IS HEREBY STIPULATED AND AGREED that Plaintiff dismisses his claims against Defendant, with prejudice. IT IS FURTHER STIPULATED AND AGREED that each party shall bear its own costs accrued or incurred in connection with the above captioned action. Dated: August ___, 2009 KABATECK BROWN KELLNER LLP

By: __________________________________ Alfredo Torrijos Attorneys for Plaintiff Dated: August ___, 2009 KEKER & VAN NEST, LLP

By: __________________________________ David J. Silbert Attorneys for Defendant 1
STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(a)(1) CASE NO. C 08-02088 RMW

Case5:08-cv-02088-RMW Document36

Filed10/16/09 Page8 of 11

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 2
448858.01

STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(a)(1) CASE NO. C 08-02088 RMW

Case5:08-cv-02088-RMW Document36

Filed10/16/09 Page9 of 11

EXHIBIT C

Page 1 of 2 Case5:08-cv-02088-RMW Document36 Michael Storti
From: Sent: To: Subject: David Silbert [[e-mail]] Thursday, August 13, 2009 9:52 AM Michael Storti FW: Almeida v. Google

Filed10/16/09 Page10 of 11

Attachments: Stipulation (KBK edits).DOC

Michael: We agreed to waive costs, but we think the recitals need to stay in the stipulation. The attached version adds them back (and also deletes the erroneous comma in the first paragraph). If we cant agree on this, its probably best that you file a motion, since weve been through several iterations at this point. Im around today, so give me a call if youd like to discuss. Thanks.

From: Michael Storti [mailto:[e-mail]] Sent: Tuesday, August 11, 2009 4:53 PM To: David Silbert Subject: RE: Almeida v. Google David, Attached are plaintiff's revisions to the stipulation. Let me know if these are acceptable. Thanks, Michael Storti
Kabateck Brown Kellner LLP 644 South Figueroa Street Los Angeles, CA 90017 [phone] (main) [phone] (direct) [phone] (fax) www.kbklawyers.com [e-mail]

From: David Silbert [mailto:[e-mail]] Sent: Monday, August 10, 2009 3:01 PM To: Michael Storti Subject: Almeida v. Google

Hi Michael: Heres a revised proposed stipulation, which I think youll be happy with. If

10/13/2009

Page 2 of 2 Case5:08-cv-02088-RMW Document36 Filed10/16/09 Page11 of 11

so, you can sign for us and file. Give me a call if youd like to discuss.
David J. Silbert Keker & Van Nest, LLP 710 Sansome Street San Francisco, CA 94111 [phone] [e-mail] www.kvn.com
This message is intended only for the use of the people to whom it is addressed. The message is confidential, and may contain attorney-client information, attorney work product or other privileged information. If you are not the intended recipient, you are hereby notified that any use or dissemination of this message is prohibited. If you received this message in error, please notify the sender by hitting the "Reply" button, then delete the message.

10/13/2009