eBay Inc. v. Digital Point Solutions, Inc. et al

Filing 76

MOTION to Dismiss Plaintiff's Second Amended Complaint filed by Digital Point Solutions, Inc., Shawn Hogan. Motion Hearing set for 6/26/2009 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Declaration of Ross M. Campbell, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Proposed Order, # 5 Certificate of Service)(Kouretchian, Seyamack) (Filed on 4/27/2009)

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

Seyamack Kouretchian (State Bar No. 171741) [e-mail] Ross Campbell (State Bar No. 234827) Rcampbell@Coast LawGroup.com COAST LAW GROUP, LLP 169 Saxony Road, Suite 204 Encinitas, California 92024 Tel: [phone] Fax: [phone] Attorneys for Defendants, SHAWN HOGAN and DIGITAL POINT SOLUTIONS, INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION EBAY, INC., ) ) Plaintiff, ) ) v. ) DIGITAL POINT SOLUTIONS, INC., SHAWN ) ) HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD ) ) DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, BRIANDUNNING.COM, ) ) and Does 1-20, ) ) Defendants. ) ) Case No. CV 08-04052 JF PVT DECLARATION OF ROSS M. CAMPBELL IN SUPPORT OF DEFENDANTS DIGITAL POINT SOLUTIONS, INC. AND SHAWN HOGAN'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM; [FRCP RULE 12(b)(6)] Date: June 26, 2009 Time: 9:00 a.m. Dept.: Courtroom 3

I, Ross M. Campbell, declare: 1. I am an attorney at law duly authorized to practice law before the United States District

Court for the Northern District of California and am an attorney with Coast Law Group, LLP, attorneys of record for Defendants DIGITAL POINT SOLUTIONS, INC. and SHAWN HOGAN (the "DPS Defendants"). If called upon as a witness I could and would competently testify to the following facts based upon my own personal knowledge, except as to those matters set forth on information and belief. /././
D e c la ra tio n of Ross M. Campbell in Support of D e fe n d a n ts ' Motion to Dismiss Plaintiff's SAC 1 Case No. CV 08-04052 JF PVT

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.

Attached as Exhibit "1" hereto is a true and correct copy of the "Commission Junction

Publisher Service Agreement" previously filed in conjunction with the defendants' Motions to Dismiss Plaintiff's First Amended Complaint. 3. Attached as Exhibit "2" hereto is a true and correct copy of the "Special Terms &

Conditions >> eBay Affiliate Global Ts&Cs Oct.1, 2005 / eBay Affiliate Program - Supplemental Terms and Conditions" previously filed in conjunction with the defendants' Motions to Dismiss Plaintiff's First Amended Complaint. 4. The foregoing documents are submitted for consideration in conjunction with the DPS

Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint pursuant to the authorities set forth in Section III of the accompanying Memorandum of Points & Authorities, as Plaintiff's Second Amended Complaint expressly refers to both documents and their validity was not challenged with respect to the prior Motions to Dismiss. 5. I declare under penalty of perjury under the laws of the United States of America and the

State of California that the foregoing is true and correct. DATED: April 27, 2009 s/Ross M. Campbell COAST LAW GROUP, LLP 169 Saxony Road, Suite 204 Encinitas, CA 92024 Telephone: [phone] FAX: [phone] E-mail: [e-mail] Attorney for Defendants, Shawn Hogan and Digital Point Solutions, Inc.

D e c la ra tio n of Ross M. Campbell in Support of D e fe n d a n ts ' Motion to Dismiss Plaintiff's SAC

2

Case No. CV 08-04052 JF PVT