Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-04755-JSW

Document 110

Filed 08/07/2008

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BIRNBERG & ASSOCIATES CORY A. BIRNBERG (SBN 105468) BIRNBERG & ASSOCIATES 703 Market Street, Suite 600 San Francisco, CA 94103 Telephone: (415) 398-1040 Facsimile: (415) 398-2001 Attorneys for Plaintiffs JOHN GIDDING, PIVOTAL, INC.

UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

JOHN GIDDING, PIVOTAL, INC.

) ) Plaintiffs, ) ) v. ) ) DEREK ANDERSON, et al., ) ) Defendants. ) ) ) ) ) __________________________________ )

Case No. C-7-04755-JSW PLAINTIFFS' REPLY TO RESPONSE TO MOTION (SUR REPLY) OPPOSITION TO MOTION TO DISMISS RE SERVICE Date: August 29, 2008 Time: 9:00 a.m. Place: Ctrm. 2, 17th Floor

NOW COMES Plaintiffs JOHN GIDDING AND PIVOTAL, INC. ("Plaintiffs") and request leave of court to make this reply to response to motion (sur reply) regarding service of process on PPSA and PLB (by service on Derek Anderson). Plaintiffs have just obtained through further investigation, and through Mr. Yannick Sala Esq., a French lawyer they retained on July 15, 2008, a copy of the minutes of a meeting of the Directors on Plantagenet Partners SA ("PPSA") at 5PM on November 13,

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SUPPLEMENTAL OPPOSITION TO MOTION TO DISMISS RE SERVICE Case No. C-7-04755-JW -1-

Case 3:07-cv-04755-JSW

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2006. These minutes have been filed with the Clerk of the Court of Paris. Attach hereto marked Exhibit A and incorporated herein by reference is a true and correct copy of the minutes of the abovementioned meeting, including translations of the relevant parts as A-1. These minutes show that Derek Anderson resigned as a director of PPSA on November 13, 2006, and that, on the same day, Olliver Lemal was nominated to liquidate PPSA. There is no provision for an "agent for service" in these minutes and Mr. Sala has confirmed that a "liquidator" is not necessarily concerned with service of legal documents, whereas the beneficiaries (i.e. the stockholders) are. Mr. Sala has also confirmed that there is no French equivalent of an "agent for service," since a liquidator cannot make a decision unless he turns to the beneficiary owners. Derek Anderson is still a stock holder and "beneficiary owner." of PPSA. Under French law a beneficiary owner can receive service of process. As of November 13, 2006, the only PPSA officer left was Olliver Lemal; however, since he was a "liquidator" he could not accept service of process on PPSA's behalf. As a beneficiary owner, Mr. Anderson was in a capacity to accept service of process on behalf of PPSA, at least under French law. If the Court determines that, based on Plantagenet's motion to dismiss, that PLB and

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BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

PPSA have been improperly served, then Plaintiffs request that this Court refrain from dismissing these entities, and instead order that these entities be properly served. If a Rule 12(b)(5) motion is granted, the court may either dismiss the action or retain the action and simply quash the service. Montalbano v. Easco Hand Tools, Inc. (2nd Cir. 1985) 766 F2d 737, 740. Generally, if it appears that effective service can be made and there has been no prejudice to the defendants, the court will quash service rather than dismiss the

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SUPPLEMENTAL OPPOSITION TO MOTION TO DISMISS RE SERVICE Case No. C-7-04755-JW -2-

Case 3:07-cv-04755-JSW

Document 110

Filed 08/07/2008

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BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

action. Hill v. Sands (ND IL 1975) 403 F.Supp. 1368, 1370. Here, proper service may be additionally effected (other than Derek Anderson) on PLB and PPSA by service on Olliver Lemal in Paris, and therefore if the Court rules that service on PLB and PPSA by serving Mr. Anderson was not proper, but that proper service can still be made, then Plaintiffs request that this Court simply quash the service on PLB and PPSA, rather than dismissing these parties from the action.

BIRNBERG & ASSOCIATES Dated: 7 August 2008 By: _/s/ Cory A. Birnberg___ Cory A. Birnberg Attorneys for Plaintiffs

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SUPPLEMENTAL OPPOSITION TO MOTION TO DISMISS RE SERVICE Case No. C-7-04755-JW -3-