Internet Archive v. Shell

Filing 50

DECLARATION of Michael Rubin regarding MOTION to Dismiss for Lack of Jurisdiction49 by Third Party Defendants Brewster Kahle, Kathleen Burch, Rick Prelinger. (Rubin, Michael)

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Internet Archive v. Shell Doc. 50 Case 1:06-cv-01726-LTB-CBS Document 50 Filed 03/12/2007 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO LEWIS T. BABCOCK, CHIEF JUDGE Civil Action No.: 06-cv-01726-LTB-CBS INTERNET ARCHIVE, a California 501(c)(3) non-profit organization, Plaint iff and Counterclaim Defendant, v. SUZANNE SHELL, a Colorado resident, Defendant and Counterclaimant. v. BREWSTER KAHLE, an individual, RICK PRELINGER, an individual, and KATHLEEN BURCH, an individual Counterclaim Defendants DECLARATION OF MICHAEL RUBIN IN SUPPORT OF THE INDIVIDUAL DEFENDANTS' MOTION TO DISMISS I, Michael H. Rubin, declare as follows: 1. I am an attorney duly admitted to practice before this Court. I am an attorney at the law firm of Perkins Coie LLP in San Francisco, California, counsel for plaintiff and counterclaim defendant Internet Archive and Brewster Kahle, Richard Prelinger and Kathleen Burch, (collectively, the "Individual Defendants") in the above-captioned action. I make this declaration of my own personal knowledge, and, if called as a witness, I could and would testify competently to the facts set forth herein. 2. On February 22, 2007, I spoke with Suzanne Shell ("Ms. Shell") on the telephone following up on a colleague's email which explained that the Court cannot properly exercise jurisdiction over the Individual Defendants in Colorado and asked Ms. Shell to provide any information that might show otherwise. Ms. Shell did not provide any facts upon which jurisdiction in Colorado would be reasonable and refused to dismiss her claims against the Individual Defendants. 3. On January 20, 2006, Internet Archive filed its Declaratory relief action against Ms. Shell in the Northern District of California, where Internet Archive is located. DECLARATION OF MICHAEL H. RUBIN 06-cv-01726-LTB-CBS Dockets.Justia.com Case 1:06-cv-01726-LTB-CBS Document 50 Filed 03/12/2007 Page 2 of 2 4. Ms. Shell filed her Answer and Objection to Venue and Counterclaims on March 10, 2006. 5. Ms. Shell filed her First Amended Answer and Objection to Venue and Counterclaims on March 13, 2006. 6. On March 31, 2006, Internet Archive filed its Motion to Dismiss Shell's counterclaims. 7. On April 10, 2006, Ms. Shell filed her Motion to Transfer Case to U.S. District of Colorado Pursuant to 28 U.S.C. 1406(a) or alternatively, Motion to Dismiss pursuant to 12(b)(3). Ms. Shell asserted that the California court did not have personal jurisdiction over her. 8. Ms. Shell filed her Second Amended Answer and Objection to Venue and Counterclaims on April 13, 2006, purporting to add the Individual Defendants to the litigation. On the same day, Ms. Shell filed a Motion to Amend/Correct First Amended Answer and Objection to Venue and Counterclaims. 9. Internet Archive's Motion to Dismiss, along with Ms. Shell's Motion to Transfer and Motion to Amend were set for hearing on May 19, 2006. 10. On May 17, 2006, the California court vacated the hearing date and granted Internet Archive leave to take jurisdictional discovery of Ms. Shell. 11. On August 25, 2006, the parties entered into a joint stipulation to transfer the case the District of Co lorado. Paragraph 3 of the stipulation stated that "Internet Archive and Shell expressly preserve any objections to jurisdiction or venue in the United States District Court for the District of Colorado." 12. Ms. Shell served her Second Amended Answer and Counterclaim and Third Party Claim on the Individual Defendants on December 27, 2006. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. This declaration is executed this March 12, 2007, in San Francisco, California. __________s/_____________ Michael H. Rubin PERKINS COIE LLP 4 Embarcadero Center, Suite 2400 San Francisco, CA 94111 Tel: (415) 344-7000 Fax: (415) 344-7050 E-mail: mrubin@perkinscoie.com Attorney for Plaintiff and Counterclaim Defendant INTERNET ARCHIVE and Brewster Kahle, Richard Prelinger and Kathleen Burch, Counterclaim Defendants DECLARATION OF MICHAEL H. RUBIN 06-cv-01726-LTB-CBS

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