Facebook, Inc. v. Studivz, Ltd et al

Filing 32

Declaration of Julio C. Avalos in Support of 29 Reply to Opposition filed byFacebook, Inc.. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I)(Related document(s) 29 ) (Avalos, Julio) (Filed on 9/30/2008)

Facebook, Inc. v. Studivz, Ltd et al

Doc. 32

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

GARY E. WEISS (State Bar No. 122962) [e-mail] I. NEEL CHATTERJEE (State Bar No. 173985) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 WARRINGTON S. PARKER (State Bar No. 148003) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 405 Howard Street San Francisco, CA 94105 Telephone: [phone] Facsimile: 415-773-5759 Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., Plaintiff, v. STUDIVZ LTD., VERLAGSGRUPPE GEORG VON HOLTZBRINCK GmbH, HOLTZBRINCK NETWORKS GmbH, HOLTZBRINCK VENTURES GmbH AND DOES 1-25, Defendants.

Case No. 5:08-cv-03468 JF SUPPLEMENTAL DECLARATION OF JULIO C. AVALOS IN SUPPORT OF REPLY TO DEFENDANTS' OPPOSITION TO FACEBOOK'S MOTION FOR EXPEDITED PERSONAL JURISDICTION DISCOVERY Date: October 14, 2008 Time: 10:00 a.m. Room: Courtroom 2, 5th Floor Judge: Honorable Magistrate Judge Howard R. Lloyd, for Discovery Purposes

REDACTED

OHS West:260522885.1

DECLARATION OF JULIO C. AVALOS IN SUPPORT OF MOTION FOR EXPEDITED PERSONAL JURISDICTION DISCOVERY

Dockets.Justia.com

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

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. I make this Declaration in support of Facebook's Motion for Expedited Personal Jurisdiction Discovery. 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. Defendant StudiVZ Ltd. ("StudiVZ") operates the German-language social

networking sites www.studivz.net, www.meinvz.net and www.schuelervz.net, as well as the French-language site www.studiqg.net, the Spanish-language site www.estudiln.net, the Polishlanguage site, www.studiln.pl and the Italian-language, www.studiln.it. 3. According to news reports, StudiVZ was initially developed by Dennis Bemmann,

a German citizen. (http://www.iht.com/articles/2008/08/07/technology/social.php) 4. According to news reports and his own StudiVZ.net profile page, following his

graduation from the Humboldt University of Berlin in 1999, Mr. Bemmann lived for an unknown period of time in the United States. Id. 5. Mr. Bemmann worked as a computer programmer in both Colorado and California

some time between 1999 and 2005. Id. 6. According to news reports, the Facebook website and service launched on

February 4, 2004. 7. As evidenced by Mr. Bemmann's profile page on www.facebook.com, Mr.

Bemmann accessed and became a registered user of Facebook. 8. According to news reports, the StudiVZ service launched in October 2005 with

www.studivz.net. (http://en.wikipedia.org/wiki/StudiVZ). Since that date, StudiVZ has expanded into most of western Europe, including the launching of websites in Spain, France, Italy and Poland. During the months of August and September 2008, StudiVZ has also begun implementing a new "chat" feature on its StudiVZ.net and meinvz.net sites. According to news reports, Facebook introduced a similar chat feature into its service the first week of April 2008. (http://www.insidefacebook.com/2008/04/06/facebook-chat-launches-tour-first-impressions/)
OHS West:260522885.1

-1-

DECLARATION OF JULIO C. AVALOS IN SUPPORT OF MOTION FOR EXPEDITED PERSONAL JURISDICTION DISCOVERY

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

9.

The StudiVZ websites actively interact with, support and rely on support from

users located in California. 10. A true and correct copy of a screenshot captured on July 30, 2008 of a StudiVZ.net

"search result" for registered California users is attached hereto as Exhibit B. 11. On July 18, 2008, plaintiff Facebook, Inc. ("Facebook") brought suit against

StudiVZ, Ltd., Verlagsgruppe Georg von Holtzbrinck GmbH ("VGH"), Holtzbrinck Networks GmbH ("HNG"), Holtzbrinck Ventures GmbH ("HVG") and as yet unidentified Does 1-25. 12. Also on July 18, 2008, StudiVZ Ltd. brought an action for declaratory relief

against Facebook in German civil court. A true and correct copy of a certified English translation of StudiVZ's declaratory action is attached hereto as Exhibit C. 13. On July 18, 2008, Facebook emailed Defendants' counsel a copy of the Complaint

filed against Defendants and also asked whether he was authorized to accept service on behalf of Defendants. Defendants' counsel refused. 14. On August 1, 2008, service packages including the complaint, exhibits and

miscellaneous standing and scheduling orders and German translations of same, were mailed to German local authorities pursuant to the Hague Convention procedures on the service of process abroad. 15. On July 24, 2008 Facebook requested that Defendants waive service. Defendants

ignored Facebook's request. 16. On August 21, 2008, defendant VGH was served pursuant to the Hague

Convention. A true and correct copy of the proof of service on VGH is attached hereto as Exhibit D. Facebook did not learn of the effected service until September 17, 2008. 17. On August 25, 2008, Defendants' counsel responded for the first time to

Facebook's request for a waiver of service. Defendants' counsel returned Facebook's waiver of service, purportedly as to all four named Defendants. 18. Two of the three remaining Defendants were served pursuant to the Hague

Convention on August 27, 2008 (HNG) and August 29, 2008 (HVG). 19. True and correct copies of the proofs of service on HNG and HVG are attached -2DECLARATION OF JULIO C. AVALOS IN SUPPORT OF MOTION FOR EXPEDITED PERSONAL JURISDICTION DISCOVERY

OHS West:260522885.1

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

hereto as Exhibits E and F, respectively. 20. A true and correct copy of a screenshot of HNG's website describing its interest in

StudiVZ is attached hereto as Exhibit G. 21. A true and correct copy of a screenshot of HVG's website describing its interest in

StudiVZ is attached hereto as Exhibit H. 22. A true and correct copy of a Nondisclosure Agreement entered into between

Facebook, VGH, HVG and HNG on May 9, 2008 is attached hereto as Exhibit I. Paragraph 4 of the Agreement, entitled "Non-Disclosure of the Circumstances," precludes the parties to the Agreement from revealing the existence of the Agreement or the circumstances surrounding the negotiations for which the Agreement was drafted and executed. I declare the foregoing is true and correct to the best of my knowledge. Executed this 30th day of September, at Menlo Park, California.

Julio C. Avalos

OHS West:260522885.1

-3-

DECLARATION OF JULIO C. AVALOS IN SUPPORT OF MOTION FOR EXPEDITED PERSONAL JURISDICTION DISCOVERY