Free Declaration in Support - District Court of California - California

Case 3:07-cv-04755-JSW

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Filed 03/05/2008

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

BIRNBERG & ASSOCIATES CORY A. BIRNBERG (SBN 105468) JOSEPH SALAMA, ESQ. (SBN 212225) 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 NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION JOHN GIDDING, PIVOTAL, INC. ) ) Plaintiffs, ) ) v. ) ) DEREK ANDERSON, et al., ) ) Defendants. ) ) ) ) ) ) ) ______________________________________ ) I, Cory Birnberg, declare as follows: 1. I am an attorney at law licensed to practice in the state of California, and before all Case No. C-7-04755-JSW DECLARATION OF CORY A. BIRNBERG IN SUPPORT PLAINTIFFS' ADMINISTRATIVE MOTION FOR ORDER CONTINUING ALL MOTIONS TO DISMISS AND RESETTING BRIEFING SCHEDULE OR IN THE ALTERNATIVE FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT Civil L.R. 7-7, 7-11 [no hearing date requested]

federal district courts in the State of California. I make this declaration upon my own personal knowledge, and as to those facts stated upon information and belief, believe them to be true. 2. We substituted into this case today. Plaintiff JOHN GIDDING, a former client of

ours, brought the file to us for the first time this morning. The opposition to

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-1DECLARATION IN SUPPORT OF MOTION FOR ADMINISTRATIVE RELIEF Plantagenet's motion to dismiss is due today, and the opposition JSW

to Defendant Christophe

Case No. C-7-04755-

Case 3:07-cv-04755-JSW

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Filed 03/05/2008

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

Rapeneau, SA Champs Renier motion to dismiss, is due on March 23, 2008. 3. This is a case involving seventeen defendants, and involves allegations of violations

of RICO and conveyance fraud, and concerns events that took place in the Cayman Islands, Luxembourg, France, and here in the United States. There are well over three hundred pages of documents that establish the complete factual background of this case, and another fifty pages of documents, not yet translated into English, that have been considered by the prosecutor in France to be highly relevant to the scheme alleged in the complaint. There is insufficient time for us to prepare an opposition to either of the two pending motions. 4. Our firm is particularly suited to this type of case, and we regularly handle

complex litigation in Federal court concerning civil and admiralty matters. On March 5, 2008, Plaintiffs substituted our firm in place of Mr. Cohen as his counsel of record (docket no. 42). I immediately telephoned counsel for PLANTAGENET, Matthew Franklin Quint, and requested a stipulation continuing the date the opposition was due in order to permit Plaintiffs additional time to complete and file an opposition. The request was denied. Mr. Quint advised us that he will likely be seeking Rule 11 sanctions in this case, and just faxed us a copy of his draft motion. We have not yet had time to review and consider his client's arguments and discuss them with our client. It is important that this Court permit us sufficient time to consider these arguments before opposing the present motions. 5. On March 5, 2008, I telephoned David Cohen, former counsel for Plaintiffs.

He expressed to me that he would assist in every way with transitioning the file to our firm and provide us with the file forthwith. 6. Plaintiffs contend this case is meritorious. In fact four defendants have already

settled out of the case. I am informed and believe that JOHN GIDDING has been testifying in France before a Rogatory Commission convened before the Prosecutor for

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the French Republic. That prosecutor, based on the validity of GIDDING's testimony and the
DECLARATION IN SUPPORT OF MOTION FOR ADMINISTRATIVE RELIEF underlying documents offered in support, has sought the JSW -2-

equivalent of an indictment

Case No. C-7-04755-

Case 3:07-cv-04755-JSW

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Filed 03/05/2008

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

against the moving defendants herein. 7. After a cursory review of the first amended complaint and the motions to

dismiss, and after meeting and conferring with JOHN GIDDING, it appears that the first amended complaint needs to be amended. We are seeking leave of this Court to amend, in the alternative. If this Court chooses to continue the date for the hearing rather than grant leave to amend, Plaintiffs will oppose and also file a motion to amend. If the Court grants the motion for leave to file a second amended complaint, Plaintiff's respectfully request two weeks from the date of the Court's order to file the second amended complaint. I declare under penalty of perjury the foregoing is true under the laws of the United States and pursuant to 28 U.S.C. §1746. Executed this 5th day of March 2008 at San Francisco, California. By: _/s/Cory Birnberg_________ Cory A. Birnberg

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-3DECLARATION IN SUPPORT OF MOTION FOR ADMINISTRATIVE RELIEF JSW Case No. C-7-04755-