Free Transfer Document - District Court of California - California

Case 3:08-cv-01493-JM-BLM

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1 AMY WINTERSHEIMER FINDLEY (BAR NO. 163074) MICHAEL R. ADELE (BAR NO. 138339) 2 CHARLENE J. WILSON (BAR NO. 222497) ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP 3 501 West Broadway, 15th Floor 4 San Diego, California 92101-3541 Phone: (619) 233-1155 5 Fax: (619) 233-1158 E-Mail: [email protected] [email protected] 6 [email protected] 7 Attorneys for Defendant 8 BIORX, LLC 9 10 11 12 NUTRISHARE, INC., a California corporation, Case No. 2:08-cv-01252-WBS-EFB 13 14 v. Plaintiff, Complaint filed June 4, 2008 DECLARATION OF CHARLENE J. WILSON IN SUPPORT OF DEFENDANT'S EX PARTE APPLICATION FOR CONTINUANCE OF HEARING DATE ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

15 BIORX, LLC, an Ohio Limited Liability Company, 16 Defendant. 17 18 19 20 I, Charlene J. Wilson, declare: 1.

I am an attorney admitted to practice before the above-captioned court, and I am an

21 associate with the firm of Allen Matkins Leck Gamble Mallory & Natsis LLP, attorneys for 22 Defendant BioRx, LLC ("Defendant" or "BioRx") in the above-captioned action. I am one of the 23 attorneys responsible for handling this matter on behalf of Defendant. The following facts are 24 within my own personal knowledge and, if called upon to do so, I could and would competently 25 testify personally thereto under oath. 26 2. Plaintiff Nutrishare, Inc. ("Plaintiff" or "Nutrishare") filed the Complaint in this

27 matter on June 4, 2008. Thereafter, on June 24, 2008, Plaintiff filed a Motion for Preliminary 28 Injunction, which is currently scheduled for hearing on August 4, 2008 at 2:00 p.m.
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

701016.01/SD

DECLARATION OF CHARLENE J. WILSON IN SUPP. OF EX PARTE APPLICATION FOR CONTINUANCE OF HEARING DATE

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1

3.

Defendant was served with a copy of the Complaint, Motion for Preliminary

2 Injunction and declarations in support of the Motion for Preliminary Injunction on June 26, 2008. 3 4. On July 9, 2008, Defendant was served with Plaintiff's Request to File Newly

4 Evidence in Support of Motion for Preliminary Injunction. Attached to Plaintiff's Request were a 5 Declaration of Kerry Stone dated June 28, 2008, and a Supplemental Declaration of Rodney 6 Okamoto, dated July 8, 2008. 7 5. Lead defense counsel in this matter (the law firm of Keating, Muething &

8 Klekamp, PLL) is located in Cincinnati, Ohio, where Defendant is located. Because lead defense 9 counsel were not admitted to practice before the Eastern District of California, it was necessary to 10 retain local counsel. The law firm of Allen Matkins Leck Gamble Mallory & Natsis LLP was 11 retained as local counsel on July 11, 2008. 12 6. Defense counsel is in the process of finalizing, and will file on or before July 16,

13 2008, a motion to dismiss and/or transfer on the basis of lack of personal jurisdiction and improper 14 venue, which will be noticed for hearing on August 18, 2008. 15 7. Defendant's Opposition to Plaintiff's Motion for Preliminary Injunction is currently

16 due on or before July 21, 2008 and is scheduled for hearing on August 4, 2008, prior to the 17 hearing on Defendant's motion to dismiss and/or transfer. 18 8. In light of the recent retention of local defense counsel and the anticipated filing of

19 a motion to dismiss and/or transfer, I contacted Plaintiff's counsel, Michael Thomas, on the 20 morning of July 14, 2008. Mr. Thomas' secretary informed me that he was not in the office. I left 21 a voicemail for Mr. Thomas informing him of our firm's recent retention in this matter and that we 22 would be filing a motion to dismiss and/or transfer this matter for lack of personal jurisdiction and 23 improper venue. In my voicemail, I also requested that Plaintiff stipulate to continue the hearing 24 on Plaintiff's Motion for Preliminary Injunction until after the Court's ruling on Defendant's 25 motion to dismiss and/or transfer. I sent a letter by facsimile and e-mail to Mr. Thomas on the 26 afternoon of July 14, 2008 confirming our retention and request for stipulation and advising him 27 that, in the event Plaintiff did not agree to a stipulation, Defendant would be filing an ex parte 28
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

701016.01/SD

-2DECLARATION OF CHARLENE J. WILSON IN SUPP. OF EX PARTE APPLICATION FOR CONTINUANCE OF HEARING DATE

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1 application with the Court. A true and correct copy of my July 14, 2008 letter to Mr. Thomas is 2 attached hereto as Exhibit A. 3 9. On July 15, 2008 at approximately 11:45 a.m., I again attempted to reach Mr.

4 Thomas by telephone but was informed that he was out of the office and would be returning after 5 lunch. I left a voicemail requesting that he contact me to advise whether Plaintiff would be 6 agreeable to a stipulation to continue the hearing date on Plaintiff's Motion for Preliminary 7 Injunction. 8 10. At approximately 2:00 p.m., I contacted by telephone and spoke with Aparna

9 Rajagopal-Durbin, additional counsel for Plaintiff, who informed me that Plaintiff would not 10 stipulate to a continuance of the preliminary injunction hearing and would oppose an ex parte 11 application. Shortly thereafter, I received a letter from Mr. Thomas confirming Plaintiff's refusal 12 to stipulate to the requested continuance and intent to oppose Defendant's ex parte application. A 13 true and correct copy of the July 15, 2008 letter from Mr. Thomas to me is attached hereto as 14 Exhibit B. 15 16 11. No prior continuances or extensions have been requested in this matter.

I declare under penalty of perjury under the laws of the United States of America that the

17 foregoing is true and correct. Executed on July 15, 2008 at San Diego, California. 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES

/s/ Charlene J. Wilson CHARLENE J. WILSON

Allen Matkins Leck Gamble Mallory & Natsis LLP

701016.01/SD

-3DECLARATION OF CHARLENE J. WILSON IN SUPP. OF EX PARTE APPLICATION FOR CONTINUANCE OF HEARING DATE

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EXHIBIT "A"

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EXHIBIT "B"

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EXHIBIT "B"