Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02121-BTM-CAB

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MELODY A. KRAMER, SBN 169984 KRAMER LAW OFFICE, INC. 9930 Mesa Rim Road, Suite 1600 San Diego, California 92121 Telephone (858) 362-3150 J. MICHAEL KALER, SBN 158296 KALER LAW OFFICES 9930 Mesa Rim Road, Suite 200 San Diego, California 92121 Telephone (858) 362-3151 Attorneys for Plaintiff JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST, Plaintiff, v. GIANT INTERNATIONAL (USA) LTD., a Delaware corporation, and DOES 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 07-CV-02121-BTM-CAB

DECLARATION OF MELODY A. KRAMER IN OPPOSITION TO DEFENDANT GIANT INTERNATIONAL (USA) LTD.'S EX PARTE APPLICATION TO CONTINUE EARLY NEUTRAL EVALUATION CONFERENCE Date: Time: Courtroom E ­ 1st Floor NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT PLAINTIFF RESPECTFULLY REQUESTS THAT THE COURT GRANT ORAL ARGUMENT ON THIS MATTER

And related counterclaims. .

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I, MELODY A. KRAMER, declare: 1. I am not a party to the present action. I am over the age of eighteen. I

have personal knowledge of the facts contained within the following paragraphs, and could and would competently testify thereto if called as a witness in a court of law. 2. At all times relevant herein I have been an attorney for Defendant

Sorensen Research and Development Trust ("SRDT"), Plaintiff in the abovecaptioned matter. 3. This Declaration is being submitted in conjunction with Plaintiff's

Opposition to Defendant Giant International (USA) Ltd.'s Ex Parte Application To Continue Early Neutral Evaluation Conference. 4. Defendant Giant is a Delaware corporation with its principal place of

business in Atlanta, Georgia. A true and correct copy of publicly available records reflecting this fact are attached hereto as Exhibit A. 5. Annual reports filed with the Georgia Secretary of State's office list

CEO Max Loong's address as being in Georgia. See Exhibit A. 6. Those same records identify Giant's CFO as Oscar Chung, also of

Atlanta, Georgia and make no reference to Gary Yam. See Exhibit A. 7. Upon receipt of Defendant Giant's motion, I "googled" Gary Yam and

located a Business Week article dated August 2007 identifying Yam Kwong Chun, Gary, as being the financial controller, not of Defendant Giant International (USA) Ltd., but of Giant Wireless Technology Ltd. See Exhibit B. 8. The Declaration of Giant's attorney Ms. Borland does not accurately

reflect the nature and extent of pre-litigation communication between the parties. 9. Pre-litigation SRDT and Giant had been communicating back and forth

regarding this matter since October 2004 with the exception to two periods of time when SRDT was unable to reach Giant's counsel because of changes in law firms. By letter dated April 27, 2006, Defendant's counsel asked for a response to another specific point, and SRDT's counsel responded by letter May 12, 2006.
2.

Then,

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inexplicably, Defendant's counsel again ceased communicating. SRDT attempted contact again by letter dated August 28, 2006 and queried whether SRDT had no other option but to file suit. No response was received. 10. Between August 2006 and September 2007, SRDT was actively

involved in litigating infringement with Black & Decker, as well as wrapping up litigation with ski boot manufacturers Head, Nordica, and Tecnica. 11. In October 2007, SRDT sent a final pre-litigation notice to Giant's

counsel (who had moved to yet another law firm), explaining why Giant had not yet been sued, asking Giant to sign a tolling agreement, and notifying Giant that suit would be filed if no tolling agreement was signed. 12. Giant's counsel emailed SRDT's counsel in response to the October

2007 letter asking for an extension of time which was given. No further response was made by Giant and thus suit was filed.

SWORN TO under penalty of perjury of the laws of the State of California and the United States, this 20th day of December, 2007.

/s/ Melody A. Kramer Melody A. Kramer, Esq. Attorney for Plaintiff [email protected]

3.

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Allison Goddard J. Christopher Jaczko Jaczko Goddard LLP 4401 Eastgate Mall San Diego, CA 92121 [email protected] [email protected] 858-225-3500 FAX Dale Lischer Elizabeth G. Borland Kerri A. Hochgesang Smith, Gambrell & Russell, LLP Promenade II, Suite 3100 1230 Peachtree St., N.E. Atlanta, GA 30309 404-685-6945 FAX PERSON(S) SERVED

PROOF OF SERVICE I, J. Michael Kaler declare: I am and was at the time of this service working within in the County of San Diego, California. I am over the age of 18 year and not a party to the within action. My business address is the Kaler Law Offices, 9930 Mesa Rim Road, Suite 200, San Diego, California, 92121. I am a member of the State Bar of California and the Bar of this Court. On December 20, 2007, I served on the parties to this action the following documents:

DECLARATION OF MELODY A. KRAMER IN OPPOSITION TO DEFENDANT GIANT INTERNATIONAL (USA) LTD.'S EX PARTE APPLICATION TO CONTINUE EARLY NEUTRAL EVALUATION CONFERENCE

PARTY(IES) SERVED

METHOD OF SERVICE Email ­ Pleadings Filed with the Court

Defendant Giant International (USA) Ltd.

Defendant Giant International (USA) Ltd.

Email ­ Pleadings Filed with the Court

(Personal Service) I caused to be personally served in a sealed envelope hand-delivered to the office of counsel during regular business hours. (Federal Express) I deposited or caused to be deposited today with Federal Express in a sealed envelope containing a true copy of the foregoing documents with fees fully prepaid addressed to the above noted addressee for overnight delivery. (Facsimile) I caused a true copy of the foregoing documents to be transmitted by facsimile machine to the above noted addressees. The facsimile transmissions were reported as complete and without error.

4.

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(Email) I emailed a true copy of the foregoing documents to an email address represented to be the correct email address for the above noted addressee. X (Email--Pleadings Filed with the Court) Pursuant to Local Rules, I electronically filed this document via the CM/ECF system for the United States District Court for the Southern District of California.

I declare that the foregoing is true and correct, and that this declaration was executed on Thursday, December 20, 2007, in San Diego, California. /s/ J. Michael Kaler __________________________ J. Michael Kaler

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EXHIBIT A

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EXHIBIT B

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