Landry-Bell v. Various Inc et al

Filing 30

AFFIDAVIT re 29 Memorandum in Opposition to Motion - Declaration of Ira P. Rothken by Various Inc. (aty,Rothken, Ira)

Download PDF

Landry-Bell v. Various Inc et al Doc. 30 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 1 of 28 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION SHELLY LANDRY-BELL, Plaintiff, vs. VARIOUS, INC. and ZACH WILHELM, Defendants. DECLARATION OF IRA P. ROTHKEN I, Ira P. Rothken, declare: 1. I am an attorney at law licensed to appear before all the courts of the State of Civil Action No. CV05-1526 S Judge Stagg Magistrate Judge Hornsby DECLARATION OF IRA P. ROTHKEN IN SUPPORT OF DEFENDANT VARIOUS, INC.'S OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE ANSWER AND DEFENSES [Fed.R.Civ.P. 12(f)] California and admitted pro hac vice to practice before this court in the above-captioned case. I represent defendant Various, Inc. ("Various"), and am lead counsel for Various, in the abovecaptioned case. I make this declaration in support of defendant Various, Inc.'s opposition to plaintiff's motion to strike Various' answer and affirmative defenses filed in this case. All statements made herein are on personal knowledge. If called as a witness, I could competently testify as to the matters stated herein. 2. Various filed its answer in this case on or about February 21, 2006. On or about Thursday, March 2, 2006, I received for the first time a communication from counsel for plaintiff regarding Various' answer, in the form of a facsimile letter. In this letter, plaintiff's counsel stated that he planned to file the within motion to strike the next day, March 3, 2006, unless the answer was withdrawn and its claimed defects cured. A true and correct copy of plaintiff's counsel's facsimile letter is attached hereto as Exhibit A. 3. Prior to sending the facsimile letter attached hereto as Exhibit A, plaintiff's counsel did not discuss his planned motion to strike, or his complaints about Various' answer, 1 Dockets.Justia.com Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 2 of 28 with myself. On information, plaintiff's counsel spoke with local counsel for defendant, Bernard L. Politz, Esq. the day prior to sending this letter to me, and local counsel advised him to communicate with me directly about the matter. 4. Because I was out of my office on March 2, 2006, I was not able to actually read the facsimile sent by plaintiff's counsel (attached as Exhibit A) until approximately 10:00 p.m. that evening. That same night, I caused a letter to be sent by facsimile to plaintiff's counsel, advising him that I would be in court the next day, Friday, March 3, 2006, on a class action matter, and would be busy the following Monday, as my office was being moved. I requested a brief extension of the one day deadline to meet and confer regarding plaintiff's planned Motion To Strike, and proposed that the parties speak about it the following Tuesday or Wednesday. A true and correct copy of this letter is attached hereto as Exhibit B. 5. On Monday, March 6, 2006, plaintiff's counsel communicated to me, by e-mail, his refusal to meet and confer on the matter, and his determination to file the motion without any discussion between the parties. A true and correct copy of this e-mail from plaintiff's counsel is attached hereto as Exhibit C. I again attempted, in an e-mail I sent to plaintiff's counsel, to prevail upon plaintiff's counsel to meet and confer, and proposed a stipulation permitting defendant to file an amended answer. A true and correct copy of this email is contained in Exhibit C, attached hereto. Plaintiff's counsel continue to refuse to meet and confer, and filed the within motion to strike without affording the parties an opportunity to informally resolve the matter. 6. Various' answer refers to its Terms of Use (see Answer, Affirmative Defense No. 24), which regulate the use of its web sites and which are displayed and available on its web sites, including the web sites at issue in this case. Various' Terms of Use, in substantially the same form and containing the same material terms as they existed at all times relevant to this case, can be found on the Internet at the following Internet address (URL): http://friendfinder.com/go/page/terms_of_use.html. A true and correct copy of these Terms of Use is attached hereto as Exhibit D. Various requests that this court take judicial notice of its Terms of Use, pursuant to Federal Rules of Evidence, Rule 201. 2 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 3 of 28 I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct and that I executed this declaration in San Rafael, California on March 22, 2006. By: ____________/S/_____________ Ira P. Rothken, Esq. 3 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 4 of 28 CERTIFICATE OF SERVICE I hereby certify that on March 22, 2006, a copy of the foregoing DECLARATION OF IRA P. ROTHKEN IN SUPPORT OF DEFENDANT VARIOUS, INC.'S OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE ANSWER AND DEFENSES was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to Ira P. Rothken and Bennett L. Politz by operation of the court's electronic filing system. I also certify that I have faxed and mailed by United States Postal Service, postage prepaid, this filing to the following non-CM/ECF participants: David A Szwak Bodenheimer Jones & Szwak 509 Market St Ste 730 Shreveport, LA 71101 Tel: 318-221-6444 Fax: 318-221-6555 Dated: March 22, 2006 __________/s/_______________ Ira P. Rothken (T.A. - Pro Hac Vice, Cal. Bar 160029) ROTHKEN LAW FIRM 3 Hamilton Landing, Suite 224 Novato, CA 94949 Tel: (415) 924-4250 Fax: (415) 924-2905 Email: ira@techfirm.com 4 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 5 of 28 EXHIBIT A Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 6 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 7 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 8 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 9 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 10 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 11 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 12 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 13 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 14 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 15 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 16 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 17 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 18 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 19 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 20 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 21 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 22 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 23 of 28 Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 24 of 28 EXHIBIT B Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 25 of 28 Rothken Law Firm 1050 Northgate Drive Suite 520 San Rafael, California 94903 Phone: (415) 924-4250 Fax: (415) 924-2905 E-mail: ira@techfirm.com Web: www.techfirm.com March 2, 2006 VIA FACSIMILE David A Szwak Bodenheimer Jones & Szwak 509 Market St Ste 730 Shreveport, LA 71101 Tel: 318-221-6444 Fax: 318-221-6555 Re: SHELLY LANDRY-BELL vs. VARIOUS, INC. and ZACH WILHELM, U.S. District Court, W. Dist. of Louisiana, Shreveport Div., No. CV05-1526 S Meet and Confer Regarding Affirmative Defenses Dear Mr. Szwak, We are in reciept of your letter faxed to us today giving us one day to meet and confer with you on affirmative defenses raised in our client's answer or you will bring a motion to strike. We frankly believe that such a "one day deadline" approach lacks basic civility. Please withdraw your "one day deadline" and confirm the same in a return fax to us on Friday and let us meet and confer via telephone on the issues raised in your letter at the beginning of next week and restore basic civility to this case. We do not think that his honor will take kindly to your tactics to not engage in a good faith meet and confer with us to narrow the issues before involving the Court. Indeed, we were only able to read your letter for the first time at 10 pm PST on Thursday evening, have not discussed the matter with our local counsel, and, as a practical matter, we did not and do not even have time to draft a responsive letter with our views and seeing if we can reach a compromise with you (by your self imposed deadline) or narrow the issues for the Court to decide - the core of a proper meet and confer. In reading through your proposed motion we have some important threshold questions we would like to discuss with you to help narrow the issues for the Court on any such motion to strike. If, after speaking with you, we determine that we are wrong or mistaken in pleading any of the affirmative defenses, we will be more than happy to correct them. Where we disagree with you, we will let a Court decide. There will likely be significantly fewer issues for the Court to decide after we engage in a "real" meet and confer in good faith. Case 5:05-cv-01526-TS-MLH Letter to Counsel March 2, 2006 Page - 2 - Document 30 Filed 03/22/2006 Page 26 of 28 Frankly, our experience is that Courts will err on the side of allowing the pleading of affirmative defenses this early in the litigation out of caution and to protect client rights as discovery evolves. In other words - there is nothing that would constitute an emergency for your client to file such a motion to strike affirmative defenses (especially before engaging in discovery) with only one day warning and no time for us to meet and confer. Kindly provide for us when you are available on Tuesday and Wednesday of next week (after 10 am PST each day) for a call to properly meet and confer on such issues. I will be in Court on a class action matter Friday and unavailable on Monday as we are moving into a new office building. We look forward to hearing back from you and getting some dose of civility and practicality injected back into this case. Very truly yours, ROTHKEN LAW FIRM Ira P. Rothken Cc: Bennett Politz, local counsel Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 27 of 28 EXHIBIT C Case 5:05-cv-01526-TS-MLH Document 30 Filed 03/22/2006 Page 1 of 1 Page 28 of 28 Hal Blacker From: Sent: To: Cc: Ira P. Rothken [ira@techfirm.com] Tuesday, March 07, 2006 12:43 AM BJKS1507@aol.com blp@blpld.com; 'Ira P. Rothken (Techfirm.org)'; jared@techfirm.com; hal@techfirm.com Subject: RE: Shelly Landry-Bell v. Various, et al David, We told you we were unavailable last Friday and this Monday (today) and we expected to meet and confer with you on Tuesday or Wednesday but you did not give us times for such a call - you seem dying to file this motion to strike the answer even though we already stipulated to filing an amended answer. We find your conduct bizarre and likely the result of trying to justify the cost of preparing such motion to your client. In any event, please advise if you will stipulate to not filing your motion and to allowing us to file and serve an amended answer by Friday of this week. We are hopeful that if you stipulate to the above that you will still meet and confer with us on Wednesday after 10 am PST so we can attempt to narrow our disagreements for his honor. Otherwise we will advise the Court that you refused to meet and confer with us and filed a motion to strike even though we stipulated to filing an amended answer and therefore you wasted the Court's time. I cannot imagine any clear minded Judge thinking that your behavior, as it stands now, is proper, civil, or judicially efficient. Ira P. Rothken From: BJKS1507@aol.com [mailto:BJKS1507@aol.com] Sent: Monday, March 06, 2006 10:42 PM To: ira@techfirm.com Cc: blp@blpld.com Subject: Shelly Landry-Bell v. Various, et al Ira, I read your proposal. I am going to timely file my motion. If you decide to amend your answer voluntarily then that is fine and the motion will be pared. The alternative is to further drag this out. I provided you an advance copy of the motion last week so you all had Thursday, Friday, the weekend and now Monday to mull it over. I think the simplest thing to do is for you to seek leave to withdraw the answer and re-plead it. David A. Szwak Bodenheimer, Jones & Szwak 509 Market Street, 7th Floor P.O. Box 1015 United Mercantile Bank Building Shreveport, Louisiana 71101 318-221-6444 Fax 221-6555 www.bjslaw.com www.MyFairCredit.com ** ** Check out the Dispute Forum www.maxedoutmovie.com/index1.html ** Check Out "Maxed Out," the movie/documentary by Trueworks Premieres March 11, 2006, at the South By Southwest Film Festival 3/21/2006

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?