Free Declaration in Support - District Court of California - California

Case 3:07-cv-05115-JSW

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PILLSBURY WINTHROP SHAW PITTMAN LLP SHERI FLAME EISNER #162776 [email protected] DAVID L. STANTON # 208079 [email protected] 725 South Figueroa Street, Suite 2800 Los Angeles, CA 90017-5406 Telephone: (213) 488-7100 Facsimile: (213) 629-1033 PILLSBURY WINTHROP SHAW PITTMAN LLP JOHN M. GRENFELL #88500 [email protected] 50 Fremont Street Post Office Box 7880 San Francisco, CA 94120-7880 Telephone: (415) 983-1000 Facsimile: (415) 983-1200 Attorneys for Defendant NETWORK SOLUTIONS, LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

DOE, Individually And On Behalf Of All Others Similarly Situated, Plaintiff,

No. C 07-5115 JSW DECLARATION OF SHERI EISNER IN SUPPORT OF DEFENDANT NETWORK SOLUTIONS, LLC'S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(3), OR IN THE ALTERNATIVE TO TRANSFER PURSUANT TO 28 USC § 1406(a), FOR IMPROPER VENUE Judge: Date: Time: CrtRm: Hon. Jeffrey S. White January 25, 2008 9:00 a.m. 2

18 vs. 19 NETWORK SOLUTIONS, LLC, 20 Defendant. 21 22 23 24 25 26 27 28
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DECLARATION OF SHERI FLAME EISNER I, Sheri Flame Eisner, declare as follows: 1. I am an attorney licensed to practice before all courts in the State of

California, and am a partner with the firm of Pillsbury Winthrop Shaw Pittman LLP, attorneys of record for defendant Network Solutions LLC ("Network Solutions") in this action ("Action"). I am familiar with the files and pleadings in this Action. I have personal knowledge of the following facts, and, if called as a witness, I could and would testify competently hereto. 2. Prior to this Action being filed, Network Solutions was contacted by

attorney Seth Safier of Gutride Safier LLP who indicated in correspondence that he represented Brett Gottlieb ("Gottlieb"). (As explained in the concurrently filed Declaration of Natalie Sterling, Network Solutions has a customer named "Nexus Holdings", for which Gottlieb is listed as the contact on the account.). I have reviewed the correspondence sent by Mr. Safier to Network Solutions. In this correspondence, Gottlieb's counsel alleged similar, if not virtually identical, facts and claims against Network Solutions as those presently alleged in the complaint in this Action by plaintiff "Doe" ("Plaintiff"); in particular, that Gottlieb's emails were captured, cached and published on internet search engines. Gottlieb, through his counsel, also alleged that Network Solutions violated the same statutes at issue in this Action, specifically the Electronic Communications Privacy Act, 18 U.S.C. § 2702; the California Consumers Legal Remedies Act, Cal. Civ. Code § 1740, et seq.; the California Customer Records Act, Cal. Civ. Code § 1798.80, et seq.; and the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. In his communications, Gottlieb's counsel threatened to file a lawsuit in California, rather than Virginia, as required by the "Governing Law" provision of the Service Agreement between Network Solutions and its customers. 3. On September 21, 2007, due to Gottlieb's threats, Network Solution filed a

declaratory relief action in the Circuit Court of Fairfax County, Virginia against Gottlieb and his company, Nexus Holdings (the "Virginia Action"). In the Virginia Action,
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Network Solutions seeks a declaratory judgment that (1) the Service Agreement governs any claims by Gottlieb and Nexus Holdings' against Network Solutions, including but not limited to any claims related to a search engine's capture, publication and cache of emails; and (2) pursuant to the Governing Law provision of the Service Agreement, any claims related to Gottlieb's web-based email account are governed by Virginia law and can be prosecuted only in Virginia. Attached hereto as Exhibit A is a true and correct copy of the complaint in the Virginia Action. 4. After the Virginia Action was filed, I spoke with Gottlieb's counsel, Mr.

Safier, who notified me that Gottlieb still planned to file an action against Network Solutions in the Northern District of California. Mr. Safier did not mention that he was representing any new clients in this matter, nor did he request that Gottlieb's identity be concealed. 5. On October 4, 2007, Gutride Safier LLP filed the complaint in this Action

against Network Solutions in the Northern District of California. It alleges the same facts and claims Gottlieb asserted against Network Solutions in the correspondence from Mr. Safier. However, the plaintiff in the present action is only identified as "Doe." 6. On November 27, 2007, Gottlieb filed a Memorandum in Support of Plea in

Bar, Motion to Quash Service and/or Dismiss for Lack of Personal Jurisdiction in the Virginia Action. I was served with a copy of this Memorandum as Network Solutions' counsel of record in the Virginia Action. In this Memorandum, Gottlieb specifically admits that he is the party who filed the present Action in the Northern District of California. Specifically, Gottlieb argues: This case has nothing to do with Defendant's [Gottlieb] alleged actions in the Commonwealth but rather with Plaintiff's [Network Solutions'] publication of private email and/or the search engine's `capture' of such email. This suit asks the Court to determine the proper venue for any cause of action that Defendant [Gottlieb] may file against Plaintiff [Network Solutions]. That analysis is properly conducted in the case Defendant [Gottlieb] actually filed. (Emphasis added.)
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