Free Declaration in Support - District Court of California - California

Case 3:08-cv-02533-PJH

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S HARTSIS F RIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111

SHARTSIS FRIESE LLP JAMES P. MARTIN (Bar #170044) JOSEPH V. MAUCH (Bar #253693) One Maritime Plaza, Eighteenth Floor San Francisco, CA 94111 Telephone: (415) 421-6500 Facsimile: (415) 421-2922 Email: [email protected], [email protected] Attorneys for Plaintiffs PH(X) GLASS, LLC and CHRISTOPHER CARSTENS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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PH(X) GLASS, LLC and CHRISTOPHER CARSTENS, Plaintiffs,

Case No. C 08-02533 PJH DECLARATION OF JAMES P. MARTIN IN SUPPORT OF PLAINTIFFS' EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER SETTING BRIEFING AND HEARING SCHEDULE FOR PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Date: X Time: X Judge: Hon. Phyllis J. Hamilton Location: Courtroom 3, 17th Floor Trial Date: Net Yet Set Amended Complaint Filed: June 12, 2008

13 v. 14 15 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 I, JAMES P. MARTIN, declare: 1. ROLAND CLARKE, PIC GLASSWARE, INC., JAMN EXACT, INC., and DOES 1 thorugh 10, inclusive,

I am a partner at Shartsis Friese LLP ("Shartsis Friese"), and represent Plaintiffs

PH(X) GLASS, LLC and CHRISTOPHER CARSTENS (collectively "Plaintiffs") in this case against Defendants ROLAND CLARKE, PIC GLASSWARE, INC., and JAMN EXACT, INC. (collectively "Defendants"). I have personal knowledge of the facts stated herein, except as to matters stated on the basis of information and belief, and I believe such matters to be true. I offer this Declaration in support of Plaintiffs' Ex Parte Motion for Temporary Restraining Order and Order Setting Briefing and Hearing Schedule for Plaintiffs' Motion for Preliminary Injunction. If called as a witness, I would testify as follows:
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S HARTSIS F RIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111

2.

On February 29, 2008, I sent a cease and desist letter on behalf of Plaintiffs to

Defendants Roland Clarke ("Clarke") and PIC Glassware, Inc ("PIC Glassware"). A true and correct copy of that letter, excluding attachments, is attached hereto as Exhibit A. Among other things, we requested that Defendants confirm in writing that they would immediately cease and desist from any further use of the "Patent Rights, Trademark Rights, Technology and Confidential Information," as each is defined in the Agreement. On March 3, 2008, Clarke and PIC Glassware sent a letter in response to our February 29 letter. A true and correct copy of that letter, excluding attachments, is attached hereto as Exhibit B. It is my belief that Clarke and PIC Glassware's letter may have been written without the assistance of legal counsel. Among other things, they refused to cease and desist from any further infringement. 3. On March 9, 2008, I sent another letter on behalf of Plaintiffs to Clarke and PIC

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Glassware that urged them to retain legal counsel and reiterated Plaintiffs' requests and legal position. A true and correct copy of that letter is attached hereto as Exhibit C. In response to Clarke and PIC Glassware's request, we also provided them with a signed copy of the Agreement. Clarke and PIC Glassware subsequently retained legal counsel, but the parties' efforts to avoid litigation were unsuccessful. On May 19, 2008, Plaintiffs filed a Complaint against Clarke and PIC Glassware in this Court (the "Complaint"). 4. When process servers hired by my law firm attempted to serve Clarke individually

and on behalf of PIC Glassware with the Complaint, Clarke evaded service. The process servers reported that between May 20, 2008, and June 11, 2008, they made sixteen (16) attempts to serve Clarke, individually and on behalf of PIC Glassware, at his only known residence. The process servers also reported that, among other things, Clarke refused to answer his door despite being present at his residence; and that later a handwritten sign was posted on the entrance to Clarke's residence stating that he had moved, and the residence was filled with moving boxes. A true and correct copy of the process servers' Declarations of Due Diligence are attached hereto as Exhibit D. In addition to these actions, Defendants have engaged in further extraordinary conduct to evade service of process. 5.
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In my efforts to execute service of process on Clarke and PIC Glassware, on
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S HARTSIS F RIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111

May 29, 2008, I sent an email to John C. Kirke ("Kirke") of Donahue Gallagher Woods LLP, who had represented Clarke during settlement negotiations, to inquire if Kirke still represented Clarke. I subsequently spoke with Kirke on May 29, and informed him that Clarke was

attempting to evade service of process. Kirke informed me that he would not be representing Clarke in the litigation, but Kirke agreed to speak with Clarke. On May 30, 2008, Kirke sent an email to me, stating that Clarke had denied evading service, and Kirke suggested that he could accept service on behalf of Clarke and PIC Glassware if Plaintiffs granted a thirty (30) day extension to respond. On May 30, 2008, I sent an email to Kirke in response, stating that Plaintiffs would be willing to grant a shorter extension of time. On June 1, 2008, Kirke sent an email to me in response, stating, "This should be acceptable, let me speak with Roland." A true and correct copy of this email correspondence is attached hereto as Exhibit E. On June 2, 2008, having not heard from Kirke, I sent another email to him. Kirke sent an email to me in response, stating, "I am not authorized to accept service on behalf of Roland Clarke or his company, and neither my firm nor I represents Mr. Clarke or his company." A true and correct copy of this email correspondence is attached hereto as Exhibit F. 6. In our efforts to execute service of process on Clarke and PIC Glassware, I

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conducted a further investigation and discovered the existence of Defendant Jamn Exact, Inc. ("Jamn Exact"). The California Secretary of State records identify Clarke as the President and only officer of Jamn Exact. Immediately after making this discovery, on June 12, 2008, Plaintiffs filed an Amended Complaint against all three Defendants (the "Amended Complaint"). A true and correct copy of the Amended Complaint is submitted herewith. The Amended Complaint reiterated the allegations and claims for relief in the Complaint and added new allegations against Jamn Exact. On the following day, June 13, 2008, a process server hired by my law firm served Jamn Exact by means of its registered agent for service of process. We have not yet effectuated service of process on Clarke or PIC Glassware as a result of their efforts to evade service of process. 7. I have made every effort to provide Defendants with advance notice of this ex

parte Motion. On June 17, 2008, my colleague, Joseph Mauch ("Mauch"), an associate at
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S HARTSIS F RIESE LLP ONE MARITIME PLAZA EIGHTEENTH FLOOR SAN FRANCISCO, CA 94111

Shartsis Friese, sent an email, copying me, to [email protected], the email address which Clarke had previously used to correspond with me. A true and correct copy of this email, excluding attachments, is attached hereto as Exhibit G. In the email we informed Clarke of Plaintiffs' intention to file an ex parte motion for a temporary restraining order enjoining him from passing himself off as a representative of PH(X) Glass, and enjoining the Defendants from selling, marketing or distributing all products that infringe on the Marks. We attached to the email copies of all documents that were served on Jamn Exact. Very soon thereafter, Mauch received an email in response that appeared to have been generated automatically and that purported that Clarke was "on extended vacation" and that he would "respond to [the] request as soon as possible." A true and correct copy of this email is attached hereto as Exhibit H. On June 20, 2008, Mauch sent another email, copying me, to Clarke, informing him that Plaintiffs intended to file their ex parte motion on Monday, June 23, 2008. A true and correct copy of this email is attached hereto as Exhibit I. Plaintiffs will provide Clarke and PIC Glassware with all papers filed with the Court in connection with this Motion by sending such documents to Clarke's email address and to his last known post office box, in addition to serving Jamn Exact through its registered agent for service of process. I declare under penalty of perjury that the foregoing is true and correct under the laws of the State of California. Executed this 24th day of June 2008, at San Francisco, California. /s/ James P. Martin JAMES P. MARTIN

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7583\004\JMAUCH\1516858.2

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