Almeida v. Google, Inc.

Filing 44

Statement of Non-Opposition re 39 MOTION to Dismiss PLAINTIFFS NOTICE OF NONOPPOSITION TO DEFENDANT GOOGLE, INC.S MOTION TO DISMISS filed byDavid Almeida. (Attachments: # 1 Declaration of Michael V. Storti)(Related document(s) 39 ) (Storti, Michael) (Filed on 3/12/2010)

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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 PLAINTIFF'S NOTICE OF NON-OPPOSITION TO DEFENDANT GOOGLE, INC.'S MOTION TO DISMISS Hearing Date: April 2, 2010 Time: 9:00 a.m. Dept: 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 PLAINTIFF'S NOTICE OF NONOPPOSITION TO DEFENDANT GOOGLE, INC.'S MOTION TO DISMISS (CV 08-02088 RMW)

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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. On June 18, 2009, Plaintiff agreed to dismiss the action if Google would stipulate

to a dismissal. Google initially agreed to stipulate, but the parties were ultimately unable to agree on a stipulation because Google insisted that conclusions of law, not yet made by the Court, be included in the stipulation. 4. On March 3, 2010, I spoke with David Silbert, counsel for Google, about

attempting to stipulate to dismiss the case. I stated that I believed we could agree to a stipulation if Google did not insist on unnecessary recitals. I also sent Mr. Silbert a draft stipulation that day. 5. On March 11, 2010 I received Google's revisions to the draft stipulation. Google

sought to include numerous recitals that are irrelevant for the purposes of stipulating to a voluntary dismissal pursuant to FRCP 41(a)(1). 6. Attached hereto as Exhibit "A" is a true and correct copy of the Google's

proposed revisions to the draft stipulation of dismissal.

I declare under penalty of perjury that the foregoing is true and correct, executed on March 12, 2010 in Los Angeles, California. /s/ Michael V. Storti

2 DECLARATION OF MICHAEL V. STORTI IN SUPPORT OF PLAINTIFF'S NOTICE OF NONOPPOSITION TO DEFENDANT GOOGLE, INC.'S MOTION TO DISMISS (CV 08-02088 RMW)

EXHIBIT A

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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 FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CASE NO. CV 08-02088 RMW HON. RONALD M. WHYTE

DAVID ALMEIDA, individually and on behalf of all others similarly 14 situated,
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Plaintiff, vs. STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(a)(1)

GOOGLE, INC., a Delaware Corporation; and DOES 1 through 10, 18 inclusive,
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Defendants.

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; WHEREAS, on or about July 14, 2008, Defendant filed its answer;
1 STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(A)(1) (CV 08-02088 RMW)

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WHEREAS Plaintiff alleged in his Complaint that he "enrolled in AdWords in November 2006" and "left the CPC content bid input blank"; WHEREAS it was brought to Plaintiff's attention by Google in the course of discovery that Plaintiff enrolled in AdWords prior to deployment of the "CPC content bid input" described in the Complaint; WHEREAS on November 11, 2009 Plaintiff filed a motion for leave to amend the Complaint to substitute a new class representative into this action; WHEREAS on November 30, 2009 the Court denied Plaintiff's motion for leave to amend; WHEREAS the Court ordered Plaintiff to submit evidence sufficient to create an inference that he used the "CPC content bid input"; WHEREAS Plaintiff has not, to date, submitted evidence sufficient to show that he used the interface in question; WHEREAS counsel for Plaintiff never responded to Defendant's request that Plaintiff dismiss this action voluntarily in light of the foregoing circumstances, and consequently, Defendant filed a motion to dismiss on February 22, 2010; 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; WHEREAS, the putative class has not been certified. IT IS HEREBY STIPULATED AND AGREED that Plaintiff dismisses his claims against Defendant, with prejudice. , and that Google is the prevailing party in this action for all purposes.

2 STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(A)(1) (CV 08-02088 RMW)

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Dated: March __, 2010

KABATECK BROWN KELLNER LLP

By Alfredo Torrijos Attorneys for Plaintiff Dated: March __, 2010 KEKER & VAN NEST LLP By____________________________ David J. Silbert Attorneys for Defendant

3 STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(A)(1) (CV 08-02088 RMW)