Facebook, Inc. v. Studivz, Ltd et al

Filing 185

Declaration in Support of 184 Memorandum in Opposition,,,,,,,,,,,, [Dr. of Dr. Siegfried H. Elsing] filed byFacebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B Part 1, # 3 Exhibit B Part 2)(Related document(s) 184 ) (Gray, Thomas) (Filed on 6/22/2009)

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) javalos @orrick.com ORRICK, HERR INGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 + 1-650-614-7400 Telephone: [phone] Facsimile: THOMAS J. GRAY (STATE BAR NO. 191411) tgray @ orrick. corn ORRICK, HERRINGTON & SUTCLIFFE LLP 4 Park Plaza Suite 1600 Irvine, CA 92614-2558 [phone] Telephone: Facsimile: 949-567 6710 Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
Dockets.Justia.com

FACEBOOK, INC., Plaintiff,
V.

Case No. 5:08-cv-03468 JF Assigned To: Hon. Jeremy Fogel

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

DECLARATION OF DR. SIEGFRIED H. ELSING IN SUPPORT OF FACEBOOK'S OPPOSITION TO DEFENDANTS' MOTION FOR STATUS CONFERENCE AND STAY OF PROCEEDINGS

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OHS GERMANY:540 169868,
DECLARATION OF I)R. SIEGRIED H. ELSING IN SUPPORT OF FACEBOOKS OPPOSITION TO MOT. TO STAY PROCEEDINGS Cae No 5:08-cv-0346X

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I, Dr. Siegfried H. Elsing, declare as follows: 1. I am an attorney and partner with the law firm of Orrick Hölters & Elsing,

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ImmermannstraBe 40, Düsseldorf 40210. Germany. Orrick Hölters & Elsing is the German operation of Orrick, Herrington & Sutcliffe LLP. I make this declaration in support of Facebook's Opposition to Defendant's Administrative Motion Requesting a Stay of Proceedings and a Status Conference. I am fully licensed to practice law in Germany and New York and am in good standing with my local bars. I earned my juris doctorate (Dr. jur.) from the University of Münster, Faculty of Law in 1976. In addition to my private practice, I am an honorary professor at Heinrich-Heine University, Faculty of Law, Düsseldorf, where I teach arbitration and international civil procedure. 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. I have reviewed the June 16, 2009 Judgment issued by the Cologne State Court in

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the matter of Facebook, Inc. v. StudiVZ Ltd., 33 0 374/08 (the "Cologne Judgment"). Attached as Exhibit A, is a true and correct copy of an English translation of the Cologne Judgment. 3. Under German Civil Procedural Code Sections 322, 325, 511, 517 and 705, the

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Judgment does not have res judicata effect under German law and is not final. Under these Code Sections, the Cologne Judgment could only be considered res judicata when there are no legal remedies remaining and the judgment cannot be appealed any more (See BGH, Judgment of May
12, 1992, VI ZR 118/91, NJW 1992, 2296; Adoif Baumbach/Wolfgang Lauterbach/Jan

Albers/Peter Hartmann, Zivilprozessordnung, 66th edition, 2008, Section 705, para. 3). Under

Section 511 Para. 2 No, 1 of the German Civil Procedural Code, an appeal is generally admissible when the amount in controversy exceeds a minimum sum of 600. The time for appeal, given in Section 517 of the German Civil Procedural Code, is one month, running from the day of service of the judgment to the appealing party. Further, under German law, res judicata applies only to the actual claims litigated, the so-called "dispositive" part of the judgment ("Urteilsjormel" or
"Tenor"). The relevant German Civil Procedural Code Sections 322, 325 and 705 do not

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recognize "issue preclusion" (collateral estoppel) with respect to the factual determinations on
DECLARATION OF DR. SIEGRIEI) H. ELSING IN SUPPORT OF FACEBOOKS OPPOSITION TO MOT. TO STAY PROCEEDINGS Case No 5OXcv-O3468

OHS GERMANY.540 169868.1

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which the judgment

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based (See BGH Judgement of Ju1 14 1995 V ZR 171/94 NJW 1995

2993; BGH, Judgment of January 30, 1985, IVb ZR 67/83, NJW 1985. 1340; RG. Judgement f 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I declare under the penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this ZZ'day of June 2009, at 19 March 19, 1928, VI 266/27, RGZ 120, 317; Dr. Hans-Joachim Musielak, Der rechtskraftig entschiedende Lebenssachverhalt, NJW 2000, 3593). Parties can, and frequently do, re-litigate factual issues that relate to subsequently litigated claims. 4. Attached as Exhibit B is a true and correct copy of the Notice of Appeal of the

Cologne Judgment, dated June 18, 2009, filed by Facebook on June 19, 2009, The Notice of Appeal has been filed within only three days after pronouncement of the Cologne Judgment and therefore within the time for appeal, provided by Section 517 of the Civil German Procedural Code. With an amount in controversy of 1,000,000 as stated in the Cologne Judgment, the minimum sum of 600, required by Section 511 Para. 2 No. 1 of the German Civil Procedural Code, is also exceeded. Hence, the appellate court has no discretion to decline to take this admissible appeal. Therefore, in my opinion and depending on the work load of the court, it likely will take one year or more before the appellate court issues a decision.

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Dr. Siegfried H. Elsing

DECLARATION OF DR. SIEGRIED H. ELSING IN SUPPORT OF FACEBOOKS OPPOSITION TO MOT. TO STAY

OHS GERMANY:5401 69868.1

Case No OX-cv-O346X

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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 June 22, 2009. Dated: June 22, 2009. Respectfully submitted, /s/ Thomas J. Gray Thomas J. Gray

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DECLARATION OF DR. SIEGRIED H. ELSING IN SUPPORT OF FACEBOOK'S OPPOSITION TO MOT. TO STAY PROCEEDINGS Case No. 5:08-cv-03468