Goldsmith, Esq. v. Cooper et al

Filing 17

MOTION to Dismiss Amended Complaint by Defendant Facebook, Inc.. Responses due by 12/2/2010. (Attachments: # 1 Affidavit Declaration of Theresa Sutton, # 2 Exhibit A-D to the Declaration of Theresa Sutton)(Sutton, Theresa)

Goldsmith, Esq. v. Cooper et al

Doc. 17 Att. 1

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JOSEPH R. GANLEY (5643) [e-mail] CHRISTIAN M. ORME (10175) [e-mail] HUTCHISON & STEFFEN, LLC 10080 West Alta, Suite 200 Las Vegas, NV 89145 Telephone: [phone] Fax: [phone] I. NEEL CHATTERJEE (admitted Pro Hac Vice) [e-mail] THERESA A. SUTTON (admitted Pro Hac Vice) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

JONATHAN B. GOLDSMITH, Plaintiff, v. JORDAN R. COOPER, an Individual; CHERYL COOPER DRISCOLL, an Individual; FACEBOOK, INC., a foreign corporation, Defendants.

Case No. 2:10-cv-01845-RLH-PAL DECLARATION OF THERESA A. SUTTON IN SUPPORT OF FACEBOOK, INC.'S MOTION TO DISMISS AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6) AND 12(B)(3)

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SUTTON DECL. ISO MOTION TO DISMISS PURSUANT TO RULES 12(B)(6), (3) 2:10-CV-01845-RLH-PAL

Dockets.Justia.com

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I, Theresa A. Sutton, declare as follows: 1. I am an associate with Orrick, Herrington & Sutcliffe LLP, counsel of record to

Facebook, Inc. I make this declaration in support of Facebook's Motion to Dismiss pursuant to Federal Rules of Civil Procedure Sections 12(b)(6) and 12(b)(3). I have personal knowledge of the facts stated herein, unless otherwise noted. If called as a witness, I could and would testify competently to these facts. 2. I am informed and believe that Facebook's business records show that

Mr. Goldsmith was a Facebook member from January 2, 2005 until October 7, 2010. Mr. Goldsmith, as a Facebook member, agreed to Facebook's Terms of Use, a true and correct copy of which is attached hereto as Exhibit A. 3. Attached hereto as Exhibit B is a true and correct copy of the September 16, 2009

Order in Finkel v. Facebook, Inc., et al, No. 102578/09, Supreme Court of the State of New York ­ New York County. 4. Attached hereto as Exhibit C is a true and correct copy of the January 15, 2009

Order in Miller v. Facebook, Inc., et al, Case No. 1:09-CV-2810-RLV, Docket No. 17, United States District Court, Northern District of Georgia, Atlanta Division. 5. On October 15, 2010, I spoke to Mr. Goldsmith by telephone. At the time I spoke

with him, only the slander and libel claims had been asserted against Facebook. I asked Mr. Goldsmith to consider dismissing Facebook from this action because it is immune from liability under the Communications Decency Act ("CDA"). Mr. Goldsmith said he was "aware of those cases" and "disagreed with them." I offered to send the cases to him for his consideration. I sent several cases to him, including Zeran v. AOL, Batzel v. Smith, Blumenthal v. Drudge, and Carafano v. Metrosplash. I also attached the New York Supreme Court ordered attached hereto as Exhibit B. Within 30 minutes, Mr. Goldsmith responded to my email demanding a payment of $25,000. He offered no explanation as to why the CDA did not provide complete immunity to Facebook for the state law claims. Attached hereto as Exhibit D is a true and correct copy of a string of emails between Mr. Goldsmith and me, dated October 15 through October 18, 2010. After defendants removed this action, Mr. Goldsmith amended his complaint and added Facebook
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SUTTON DECL. ISO MOTION TO DISMISS PURSUANT TO RULES 12(B)(6), (3) 2:10-CV-01845-RLH-PAL

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as a defendant to the already existing Wiretap Act claims. I declare under penalty of perjury under the law of the State of Nevada that the foregoing is true and correct. Executed this 15th day of November 2010, at Menlo Park, California.

/s/ Theresa A. Sutton THERESA A. SUTTON

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SUTTON DECL. ISO MOTION TO DISMISS PURSUANT TO RULES 12(B)(6), (3) 2:10-CV-01845-RLH-PAL

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CERTIFICATE OF SERVICE On the 15th day of November 2010, I electronically submitted the foregoing document with the Clerk of the Court for the U.S. District Court, District of Nevada, using the electronic case filing system of the Court. I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2).

/s/ Theresa A. Sutton THERESA A. SUTTON

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SUTTON DECL. ISO MOTION TO DISMISS PURSUANT TO RULES 12(B)(6), (3) 2:10-CV-01845-RLH-PAL