Pacer-e.DIGITAL vs Newegg retailer -" creative Idea " how to resolve the matter
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Message: Pacer-e.DIGITAL vs Newegg retailer -" creative Idea " how to resolve the matter
Newegg should respond to this by July , 19 ,2013 .JMHO
ANTON HANDAL (Bar No. 113812)
anh@handal-law.com
PAMELA C. CHALK (Bar No. 216411)
pchalk@handal-law.com
GABRIEL HEDRICK (Bar No. 220649)
ghedrick@handal-law.com
HANDAL & ASSOCIATES
1200 Third Avenue, Suite 1321
San Diego, California 92101
Tel: 619.544.6400
Fax: 619.696.0323
Attorneys for Plaintiff and Counter-Defendant
e.Digital Corporation
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
e.Digital Corporation,
Plaintiff,
v.
Creative Labs, Inc.; Creative
Technology, Ltd., Buy.Com, Inc.; J & R
Electronics, Inc.; Newegg Inc.,
Defendants.
And Related Counterclaims.
Case No. 3:12-cv-2879-DMS-WVG
DECLARATION OF PAMELA C.
CHALK SUBMITTED IN
SUPPORT OF PLAINTIFF AND
COUNTER-DEFENDANT
E.DIGITAL CORPORATION’S
OPPOSITION TO DEFENDANT
NEWEGG INC.’S MOTION FOR
ATTORNEY’S FEES AND
ATTACHED EXHIBITS A-N
Assigned to the
Honorable Judge Dana M. Sabraw
Courtroom 13A (Annex)
Magistrate Judge: the Honorable
Judge William V. Gallo
Courtroom 1E (First Floor)
I, PAMELA C. CHALK, declare:
1. I have personal knowledge of the matters set forth herein, except for those
matters stated under information and belief. If called as a witness, I could and
would competently testify thereto.
2. I am an attorney licensed to practice law in the State of California and a
member of the California State Bar. I am an associate with the law firm of Handal
& Associates, attorneys of record in this matter for Plaintiff e.Digital Corporation
Case 3:12-cv-02879-DMS-WVG Document 48-1 Filed 07/12/13 Page 1 of 6
DECLARATION OF PAMELA C. CHALK Case No. 3:12-CV-2879-DMS-WVG
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
(“Plaintiff” or “e.Digital”).
3. My mother suffered a heart attack during May 2013. Because my mother resides out of the state, I had to fly out of town and attend to her while she was in the hospital/after she was released. I informed opposing counsel via email that I had a family emergency. At no time did opposing counsel indicate that this was an issue or that there was any “rush” with respect to filing the dismissal of Newegg.
4. On or about April 23, 2013, I contacted Newegg’s counsel to discuss
settlement.
5. On or about April 25, 2013, Newegg’s Chief Legal Counsel Mr. Lee Cheng
contacted my office to discuss this case. Mr. Cheng spoke directly to Mr. Handal, lead counsel of my office, but the conversation was on speakerphone and I heard the entire discussion while sitting in Mr. Handal’s office.
6. During the conversation, Mr. Cheng indicated that Newegg would never agree to settle the case or to a dismissal of the case. He indicated that Newegg wanted to teach a lesson to anyone that files a patent suit against it and to send the message that Newegg should never be sued. He stated words to the effect that even
if the case were resolved as to the other parties in the case, Newegg would drag out the case for as long as possible as Newegg wanted to “establish patent law that these type of cases should never be filed.”
7. During the ENE held in this matter, the Court expressed some concerns that Newegg had indicated in its ENE brief that it would agree to a “walkaway” settlement or mutual dismissal in this case with my client, yet indicated otherwise at the ENE.
8. After the ENE, I contacted Newegg’s counsel via email to set up a time to
meet and confer as to how procedurally to approach the dismissal issue with
respect to Newegg, among other things. I did not hear back from opposing counsel until on or about May 10, 2013. A time was set up to speak the following week.
9. On or about May 13, 2013, I spoke via telephone with Newegg’s counsel.
Case 3:12-cv-02879-DMS-WVG Document 48-1 Filed 07/12/13 Page 2 of 6
DECLARATION OF PAMELA C. CHALK Case No. 3:12-CV-2879-DMS-WVG
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
During that conversation, Newegg’s counsel indicated that her client might have some possible “creative ideas” on how to resolve the matter and I was led to believe that Newegg’s counsel was going to discuss the issue further with her client and mull it over. Accordingly, it was my belief that there was still an opportunity to resolve the matter without any need for a motion to dismiss.
10. Attached hereto as Exhibit A is a true and correct copy of a document
entitled “Order Denying Declaration Of Exceptional Case And Award Of
Attorneys’ Fees” which was filed in the case Site Update Solutions, LLC,
Plaintiffs v. Accor North America, Inc., et. al, U.S. District Court Northern District of California, Case Number 5:11-cv-03306-PSG, dated May 21, 2013.
11. Attached hereto as Exhibit B is a true and correct copy of relevant portions
of Newegg’s Initial Disclosures.
12. Attached hereto as Exhibit C is a true and correct copy of relevant portions
of an email string between counsel in this matter dated April 23, 2013 re:
settlement.
13. Attached hereto as Exhibit D is a true and correct copy of relevant portions
of an email string between counsel in this matter dated April 25, 2013 re:
Newegg’s Chief Legal Counsel calling Plaintiff’s counsel.
14. Attached hereto as Exhibit E is a true and correct copy of relevant portions
of an email string between counsel in this matter dated May 1, 2013 through May
10, 2013 re: discussion of case.
15. Attached hereto as Exhibit F is a true and correct copy of relevant portions of an email string between counsel in this matter dated May 17, 2013 wherein Newegg’s counsel indicates how it wishes the dismissal of Newegg/dismissal of the case to procedurally proceed.
16. Attached hereto as Exhibit G is a true and correct copy of relevant portions
of an email string between counsel in this matter dated May 21, 2013.
17. Attached hereto as Exhibit H is a true and correct copy of relevant portions
Case 3:12-cv-02879-DMS-WVG Document 48-1 Filed 07/12/13 Page 3 of 6
DECLARATION OF PAMELA C. CHALK Case No. 3:12-CV-2879-DMS-WVG
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
of an email string between counsel in this matter dated May 21, 2013 re: family
emergency.
18. Attached hereto as Exhibit I is a true and correct copy of relevant portions of an email string between counsel in this matter dated May 23, 2013.
19. Attached hereto as Exhibit J is a true and correct copy of relevant portions of the notice of settlement filed in the MITAC case.
20. Attached hereto as Exhibit K is a true and correct copy of relevant portions
of the “Declaration Of Adam Hoffman In Support Of Plaintiff SFA Systems,
LLC's Reply In Support Of SFA's Motion For Voluntary Dismissal With Prejudice Of Its Action Against Newegg, Inc. And Dismissal With Prejudice Of Newegg's Counterclaims For Declaratory Judgment For Lack Of Subject Matter Jurisdiction”
dated May 2, 2013 and filed in the case SFA Systems LLC v. 1-800-Flowers.Com, Inc., et al., United States District Court, Eastern District of Texas, Case Number 6:09-cv-00340-LED.
21. Attached hereto as Exhibit M is a true and correct copy of relevant portions
of “Plaintiff SFA Systems, LLC’s Motion For Voluntary Dismissal With Prejudice Of Its Action Against Newegg, Inc. And Dismissal With Prejudice Of Newegg’s Counterclaims For Declaratory Judgment For Lack Of Subject Matter Jurisdiction”
dated April 12, 2013 and filed in the case SFA Systems LLC v. 1-800-
Flowers.Com, Inc., et al., United States District Court, Eastern District of Texas, Case Number 6:09-cv-00340-LED.
22. Attached hereto as Exhibit M is a true and correct copy of relevant portions
of an article entitled, “Patent Trolls Beware” dated May 20, 2013.
23. Attached hereto as Exhibit N is a true and correct copy of relevant portions
of the docket in this case re: Attorneys (specifying which attorneys have appeared in this case to date).
///
///
Case 3:12-cv-02879-DMS-WVG Document 48-1 Filed 07/12/13 Page 4 of 6
DECLARATION OF PAMELA C. CHALK Case No. 3:12-CV-2879-DMS-WVG
-5-
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
I declare under penalty of perjury of the laws of the United States that the
foregoing is true and correct. Executed this 12th day of July, 2013.
Respectfully submitted,
Dated: July 12 2013
HANDAL & ASSOCIATES
By: /s/Pamela C. Chalk__________________
Anton N. Handal
Pamela C. Chalk
Gabriel G. Hedrick
Attorneys for Plaintiff
e.Digital Corporation
anh@handal-law.com
PAMELA C. CHALK (Bar No. 216411)
pchalk@handal-law.com
GABRIEL HEDRICK (Bar No. 220649)
ghedrick@handal-law.com
HANDAL & ASSOCIATES
1200 Third Avenue, Suite 1321
San Diego, California 92101
Tel: 619.544.6400
Fax: 619.696.0323
Attorneys for Plaintiff and Counter-Defendant
e.Digital Corporation
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
e.Digital Corporation,
Plaintiff,
v.
Creative Labs, Inc.; Creative
Technology, Ltd., Buy.Com, Inc.; J & R
Electronics, Inc.; Newegg Inc.,
Defendants.
And Related Counterclaims.
Case No. 3:12-cv-2879-DMS-WVG
DECLARATION OF PAMELA C.
CHALK SUBMITTED IN
SUPPORT OF PLAINTIFF AND
COUNTER-DEFENDANT
E.DIGITAL CORPORATION’S
OPPOSITION TO DEFENDANT
NEWEGG INC.’S MOTION FOR
ATTORNEY’S FEES AND
ATTACHED EXHIBITS A-N
Assigned to the
Honorable Judge Dana M. Sabraw
Courtroom 13A (Annex)
Magistrate Judge: the Honorable
Judge William V. Gallo
Courtroom 1E (First Floor)
I, PAMELA C. CHALK, declare:
1. I have personal knowledge of the matters set forth herein, except for those
matters stated under information and belief. If called as a witness, I could and
would competently testify thereto.
2. I am an attorney licensed to practice law in the State of California and a
member of the California State Bar. I am an associate with the law firm of Handal
& Associates, attorneys of record in this matter for Plaintiff e.Digital Corporation
Case 3:12-cv-02879-DMS-WVG Document 48-1 Filed 07/12/13 Page 1 of 6
DECLARATION OF PAMELA C. CHALK Case No. 3:12-CV-2879-DMS-WVG
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
(“Plaintiff” or “e.Digital”).
3. My mother suffered a heart attack during May 2013. Because my mother resides out of the state, I had to fly out of town and attend to her while she was in the hospital/after she was released. I informed opposing counsel via email that I had a family emergency. At no time did opposing counsel indicate that this was an issue or that there was any “rush” with respect to filing the dismissal of Newegg.
4. On or about April 23, 2013, I contacted Newegg’s counsel to discuss
settlement.
5. On or about April 25, 2013, Newegg’s Chief Legal Counsel Mr. Lee Cheng
contacted my office to discuss this case. Mr. Cheng spoke directly to Mr. Handal, lead counsel of my office, but the conversation was on speakerphone and I heard the entire discussion while sitting in Mr. Handal’s office.
6. During the conversation, Mr. Cheng indicated that Newegg would never agree to settle the case or to a dismissal of the case. He indicated that Newegg wanted to teach a lesson to anyone that files a patent suit against it and to send the message that Newegg should never be sued. He stated words to the effect that even
if the case were resolved as to the other parties in the case, Newegg would drag out the case for as long as possible as Newegg wanted to “establish patent law that these type of cases should never be filed.”
7. During the ENE held in this matter, the Court expressed some concerns that Newegg had indicated in its ENE brief that it would agree to a “walkaway” settlement or mutual dismissal in this case with my client, yet indicated otherwise at the ENE.
8. After the ENE, I contacted Newegg’s counsel via email to set up a time to
meet and confer as to how procedurally to approach the dismissal issue with
respect to Newegg, among other things. I did not hear back from opposing counsel until on or about May 10, 2013. A time was set up to speak the following week.
9. On or about May 13, 2013, I spoke via telephone with Newegg’s counsel.
Case 3:12-cv-02879-DMS-WVG Document 48-1 Filed 07/12/13 Page 2 of 6
DECLARATION OF PAMELA C. CHALK Case No. 3:12-CV-2879-DMS-WVG
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
During that conversation, Newegg’s counsel indicated that her client might have some possible “creative ideas” on how to resolve the matter and I was led to believe that Newegg’s counsel was going to discuss the issue further with her client and mull it over. Accordingly, it was my belief that there was still an opportunity to resolve the matter without any need for a motion to dismiss.
10. Attached hereto as Exhibit A is a true and correct copy of a document
entitled “Order Denying Declaration Of Exceptional Case And Award Of
Attorneys’ Fees” which was filed in the case Site Update Solutions, LLC,
Plaintiffs v. Accor North America, Inc., et. al, U.S. District Court Northern District of California, Case Number 5:11-cv-03306-PSG, dated May 21, 2013.
11. Attached hereto as Exhibit B is a true and correct copy of relevant portions
of Newegg’s Initial Disclosures.
12. Attached hereto as Exhibit C is a true and correct copy of relevant portions
of an email string between counsel in this matter dated April 23, 2013 re:
settlement.
13. Attached hereto as Exhibit D is a true and correct copy of relevant portions
of an email string between counsel in this matter dated April 25, 2013 re:
Newegg’s Chief Legal Counsel calling Plaintiff’s counsel.
14. Attached hereto as Exhibit E is a true and correct copy of relevant portions
of an email string between counsel in this matter dated May 1, 2013 through May
10, 2013 re: discussion of case.
15. Attached hereto as Exhibit F is a true and correct copy of relevant portions of an email string between counsel in this matter dated May 17, 2013 wherein Newegg’s counsel indicates how it wishes the dismissal of Newegg/dismissal of the case to procedurally proceed.
16. Attached hereto as Exhibit G is a true and correct copy of relevant portions
of an email string between counsel in this matter dated May 21, 2013.
17. Attached hereto as Exhibit H is a true and correct copy of relevant portions
Case 3:12-cv-02879-DMS-WVG Document 48-1 Filed 07/12/13 Page 3 of 6
DECLARATION OF PAMELA C. CHALK Case No. 3:12-CV-2879-DMS-WVG
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
of an email string between counsel in this matter dated May 21, 2013 re: family
emergency.
18. Attached hereto as Exhibit I is a true and correct copy of relevant portions of an email string between counsel in this matter dated May 23, 2013.
19. Attached hereto as Exhibit J is a true and correct copy of relevant portions of the notice of settlement filed in the MITAC case.
20. Attached hereto as Exhibit K is a true and correct copy of relevant portions
of the “Declaration Of Adam Hoffman In Support Of Plaintiff SFA Systems,
LLC's Reply In Support Of SFA's Motion For Voluntary Dismissal With Prejudice Of Its Action Against Newegg, Inc. And Dismissal With Prejudice Of Newegg's Counterclaims For Declaratory Judgment For Lack Of Subject Matter Jurisdiction”
dated May 2, 2013 and filed in the case SFA Systems LLC v. 1-800-Flowers.Com, Inc., et al., United States District Court, Eastern District of Texas, Case Number 6:09-cv-00340-LED.
21. Attached hereto as Exhibit M is a true and correct copy of relevant portions
of “Plaintiff SFA Systems, LLC’s Motion For Voluntary Dismissal With Prejudice Of Its Action Against Newegg, Inc. And Dismissal With Prejudice Of Newegg’s Counterclaims For Declaratory Judgment For Lack Of Subject Matter Jurisdiction”
dated April 12, 2013 and filed in the case SFA Systems LLC v. 1-800-
Flowers.Com, Inc., et al., United States District Court, Eastern District of Texas, Case Number 6:09-cv-00340-LED.
22. Attached hereto as Exhibit M is a true and correct copy of relevant portions
of an article entitled, “Patent Trolls Beware” dated May 20, 2013.
23. Attached hereto as Exhibit N is a true and correct copy of relevant portions
of the docket in this case re: Attorneys (specifying which attorneys have appeared in this case to date).
///
///
Case 3:12-cv-02879-DMS-WVG Document 48-1 Filed 07/12/13 Page 4 of 6
DECLARATION OF PAMELA C. CHALK Case No. 3:12-CV-2879-DMS-WVG
-5-
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
I declare under penalty of perjury of the laws of the United States that the
foregoing is true and correct. Executed this 12th day of July, 2013.
Respectfully submitted,
Dated: July 12 2013
HANDAL & ASSOCIATES
By: /s/Pamela C. Chalk__________________
Anton N. Handal
Pamela C. Chalk
Gabriel G. Hedrick
Attorneys for Plaintiff
e.Digital Corporation
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