Doe 1 et al v. Ciolli et al

Filing 71

AFFIDAVIT re 70 Memorandum in Opposition to Motion, 59 MOTION to Dismiss Pursuant to Rule 12(B)(6) or in the alternative for failure to prosecute, [RE IN SUPPORT OF PLAINTIFFS OPPOSITION TO A HORSE WALKS INTO A BARS A.K.A. RYAN MARINERS MOTION TO DISMISS] Signed By ROSE DARLING filed by Doe 1, Doe 2. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Ramani, Ashok) Modified on 10/6/2008 to remove special character text (Grady, B.).

Doe 1 et al v. Ciolli et al

Doc. 71

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DOE I, and DOE II, Plaintiffs, v. Matthew C. Ryan, a.k.a. ":D"; and individuals using the following pseudonyms: pauliewalnuts; neoprag; STANFORDtroll; lkjhgf; yalelaw; Spanky; ylsdooder; HI; David Carr; vincimus; Cheese Eating Surrender Monkey; A horse walks into a bar; The Ayatollah of Rock-n-Rollah; DRACULA; Sleazy Z; Whamo; Ari Gold; Ugly Women; playboytroll; Dean_Harold_Koh; kr0nz; reminderdood; r@ygold; who is; Joel Sche11hammer; Prof. Brian Leiter; hitlerhitlerhitler; lonelyvirgin; Patrick Zeke <[e-mail]>; Patrick Bateman <[e-mail]>; [DOE I] got a 157 LSAT; azn, azn, azn; Dirty Nigger; leaf; t14 gunner; kibitzer; yalels2009; AK47, Defendants.

Case No. 3:07CV00909(CFD)

DECLARATION OF ROSE DARLING IN SUPPORT OF PLAINTIFFS' OPPOSITION TO "A HORSE WALKS INTO A BAR"'S A.K.A. RYAN MARINER'S MOTION TO DISMISS I, Rose Darling, declare as follows: 1. I am duly licensed to practice law in the State of California and am an associate

with the law firm of Keker & Van Nest, LLP, counsel for plaintiffs DOE I and DOE II in the above-captioned proceeding. I am admitted pro hac vice to appear before this Court in this action. I have knowledge of the facts set forth herein, except where stated otherwise, and if called to testify as a witness thereto, could do so competently under oath. 2. I understand that in March 2008, Chip Vermette, an attorney at Litchfield Cavo

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LLP in Connecticut, contacted Ben Berkowitz, a colleague at my firm, to state that he was representing the defendant identified in the complaint as A Horse Walks Into a Bar. 3. In mid March 2008, Plaintiffs attempted to subpoena Mariner for documents and

deposition testimony. Mariner, however, evaded service, and after more than six attempts, Plaintiffs were unable to personally serve him. Attached hereto as Exhibit A is a true and correct copy of an Affidavit of Attempted Service, submitted to me by Jack Johnson on August 27, 2008, which describes his attempts to serve Mariner. 4. I understand that in April 2008, Mr. Berkowitz asked Mr. Vermette (the attorney

representing A Horse Walks Into a Bar) whether his client's real name was Ryan Mariner. I further understand that Mr. Vermette refused to confirm or deny his client's real identity. 5. I also understand that on June 11, 2008, Mr. Berkowitz told Mr. Vermette that

Plaintiffs planned to amend the complaint to identify the real identities of certain defendants and were evaluating what action to take as to A Horse Walks Into a Bar. It is my understanding that Mr. Berkowitz again asked Mr. Vermette whether Mariner was his client, and if so, whether he would agree to accept service of an amended complaint in the event that Plaintiffs decided to name Mariner as a defendant. I further understand that later that day, Anthony Collins, an attorney from Hoppe, Collins, & Ojeda LLC in Atlanta, Georgia, contacted Mr. Berkowitz to confirm that he and Mr. Vermette represented Ryan Mariner a.k.a. A Horse Walks Into a Bar. Attached hereto as Exhibits B and C are true and correct copies of emails between Mr. Berkowitz and Mariner's counsel, dated June 11, 2008, which document the discussions described above. 6. On August 5, 2008, Plaintiffs filed a Second Amended Complaint. Based on the

information available at that time, Plaintiffs thought it was prudent not to identify Mariner as the real person behind the pseudonym "A Horse Walks Into a Bar." There was no pecuniary motivation behind this decision. Thus, the amended complaint continued to name "A Horse Walks Into a Bar" as a defendant and did not identify that defendant by his real name, Ryan Mariner.

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7.

Shortly after filing the Complaint, Plaintiffs' counsel reached out to Mariner's

counsel to pursue settlement. Mariner's counsel ignored the overture, and responded with a motion to dismiss.

I declare under penalty of perjury that the foregoing is true and correct. I executed this Declaration this 10th day of September, 2008 in San Francisco, CA. /s/ Rose Darling_______________ ROSE DARLING

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