Facebook, Inc. v. Studivz, Ltd et al

Filing 146

Declaration of Julio C. Avalos in Support of 145 Memorandum in Opposition filed byFacebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Related document(s) 145 ) (Gray, Thomas) (Filed on 4/6/2009)

Facebook, Inc. v. Studivz, Ltd et al

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I. NEEL CHATTERJEE (State Bar No. 173985) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) javalo [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] m ORRICK, HERRINGTON & SUTCLIFFE LLP 4 Park Plaza Suite 1600 Irvine, CA 92614-2558 Telephone: [phone] Facsimile: 949-567 6710 Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., Plaintiff, v. STUDIVZ LTD., HOLTZBRINCK NETWORKS GmbH, HOLTZBRINCK VENTURES GmbH, DENNIS BEMMANN, MICHAEL BREHM, AND DOES 1-25, Defendants.

Case No. 5:08-cv-03468 JF DECLARATION OF JULIO C. AVALOS IN SUPPORT OF FACEBOOK INC.'S SUPPLEMENTAL OPPOSITION TO MOTION DISMISS FOR FORUM NON CONVENIENS Judge: Hearing: Honorable Jeremy Fogel April 17, 20091 at 9:00 a.m.

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On April 3, 2009, the Parties filed a stipulation seeking continuance of the April 17 hearing until May 1, 2009.

Dockets.Justia.com

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I, Julio C. Avalos, declare as follows: 1. I am an attorney with the law firm of Orrick, Herrington & Sutcliffe LLP, counsel

for Plaintiff Facebook, Inc. ("Facebook"). I make this Declaration in support of Facebook's Opposition to Defendants' Motion for Administrative Relief seeking to stay the personal jurisdiction portion of their motions to dismiss. I am an active member in good standing of the California State Bar. Except as set forth herein, I have personal knowledge of the facts stated herein and if called as a witness, could and would competently testify thereto. 2. On March 31, 2009, I directed my internet browser to the website and webpage

located at http://www.intetics.com. I saved that webpage as a PDF image file, which accurately portrays the webpage as I saw it. I then directed my internet browser to the webpage located at http://www.intetics.com/contact.html. This webpage was accessible by clicking on the "Contact Us" link in the top toolbar of the www.intetics.com webpage. I saved this second webpage as a PDF image file, which accurately portrays the webpage as I saw it. Finally, I directed my internet browser to the webpage located at http://www.intetics.com/major-clients.html. I arrived at that page by first allowing my cursor to hover over the "Expertise" link in the top toolbar of the www.intetics.com ho mepage. Upon so doing, a new drop-down menu appeared containing two links: "Technology Expertise" and "Industry Expertise." I clicked on "Industry Expertise," which brought me to the "major-clients.html" webpage. I saved this third webpage as a PDF image file, which accurately portrays the webpage as I saw it. True and correct copies of each of these three PDF image files are attached hereto as Exhibit A. 3. On April 6, 2009, I directed my internet browser to the website located at

http://www.shoeboxed.com. I then scrolled down to the bottom of the page and clicked on the link "About Us" located under the heading "About Shoeboxed." This link brought my internet browser to the webpage located at http://www.shoeboxed.com/about-us.htm. Due to formatting issues related to how the webpage looked when saved as a PDF image file, I instead saved what I viewed on my computer screen as a Portable Network Graphics ("PNG") image file, which is the default screenshot image file format on Apple, Inc. computers. Because the www.shoeboxed.com/about-us.htm webpage requires scrolling in order to view the entire page -1DECLARATION OF JULIO C. AVALOS No. 5:08-CV-03468 JF

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and because the entire page does not fit on one 8-1/2" x 11" sheet of paper, I captured the webpage in three distinct screenshots, which, when viewed compositely and/or sequentially, accurately portray the webpage as I saw it. True and correct copies of these three image files are attached hereto as Exhibit B. 4. On March 31, 2009, I directed Amy Dalton, a Senior Paralegal at Orrick, to

capture the webpage located at http://www.linkedin.com/in/tobiaswalter, which she subsequently did as a PDF image file. I have reviewed that image file and found it to accurately portray the webpage as it appears online. A true and correct copy of that image file is attached hereto as Exhibit C. 5. On April 6, 2009, I directed my internet browser to the webpage located at

http://www.facebook.com/people/Taylor-Mingos/1308534. The webpage is a public version of the Facebook profile for Taylor Mingos. The profile lists Mr. Mingos as being a resident of "Raleigh/Durham, NC [North Carolina]." I captured the screenshot as a PNG image file. The PNG image file accurately portrays the website as it appeared on my computer. A true and correct copy o f this image file is attached hereto as Exhibit D. 6. On March 24, 2009, I directed my internet browser to the webpage located at

http://www.pantherexpress.net/news/25/. I then saved that webpage as a PDF image file, which

accurately portrays the website as I saw it. A true and correct copy of this file/webpage is attached hereto as Exhibit E. 7. On March 24, 2009, I opened Apple's iTunes program and navigated to the

"iTunes Store" link along the left navigation panel. I clicked on that link and was directed to the iTunes Store, an online store stocked with downloadable music, movies, television programs and a variety of applications and programs for the Apple iPhone. I performed a search in the iTunes store for "studivz" and was able to locate three different iPhone applications available for download. These applications correspond to three of Defendants' websites: meinVZ, schulerVZ and StudiVZ. According to the iTunes store, these applications have been available for download since March 3, 2009. Using my computer's screenshot feature, I was able to record my screenshot as an image file. This image file accurately portrays the iTunes store screenshot as I -2DECLARATION OF JULIO C. AVALOS No. 5:08-CV-03468 JF

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saw it. A true and correct copy of same is attached hereto as Exhibit F. 8. On March 24, 2009, I directed my internet browser to the website located at

http://developer.apple.com/iphone/terms/registered_iphone_developer.pdf. Located at that address is

PDF image file of Apple, Inc.'s "Registered iPhone Developer Agreement." I saved this website/PDF image file onto my computer. The saved image file accurately portrays the website as I viewed it online. A true and correct copy of same is attached hereto as Exhibit G. 9. On April 6, 2009, I directed my internet browser to the webpage located at

http://www.spiegel.de/international/0,1518,457766,00.html. The webpage features a news article discussing the acquisition of Defendant StudiVZ by the Holtzbrinck Defendants. I then saved the webpage as a PDF image file. I have reviewed the PDF image file and determined that it accurately portrays the webpage as I saw it on my computer. A true and correct copy of this image file is attached hereto as Exhibit H. I declare, under penalty of perjury, that the foregoing is true and correct to the best of my knowledge. Executed this 6th day of April, at Menlo Park, California.

/s/ Julio C. Avalos /s/ JULIO C. AVALOS

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DECLARATION OF JULIO C. AVALOS No. 5:08-CV-03468 JF

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OHS West:260639917.1

CERTIFICATE OF SERVICE I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on April 6, 2009. Dated: April 6, 2009 Respect fully submitted, /s/ Julio C. Avalos /s/ Julio C. Avalos

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DECLARATION OF JULIO C. AVALOS No. 5:08-CV-03468 JF