Kleiner v. Earthlink, Inc.

MOTION to DISMISS for LACK of JURISDICTION

E.D. Cal.September 26, 2016

1 NOTICE OF MOTION AND RULE 12(B)(1) MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 W. SCOTT CAMERON (State Bar No. 229828) KING & SPALDING LLP 621 Capitol Mall, Suite 1500 Sacramento, CA 95814 Telephone: (916) 321-4800 Facsimile: (916) 321-4900 Email: scameron@kslaw.com Attorneys for Defendant: EarthLink, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA LINDA KLEINER, Plaintiff v. EARTHLINK, INC., Defendant. Case No. 2:16-CV-01609-KJM-AC NOTICE OF MOTION AND RULE 12(b)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Date: Nov. 4, 2016 Time: 10:00 a.m. Presiding: Hon. Kimberly J. Muelle TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Defendant EarthLink, LLC (“EarthLink”), as successor to EarthLink, Inc., hereby files this Notice of Motion and Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction (“Notice and Motion”) along with the accompanying Memorandum in Support of Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Declaration of Jennifer Spindel. PLEASE TAKE NOTICE THAT on November 4, 2016 at 10:00 a.m., or as soon thereafter as the parties may be heard, in the Courtroom of the Honorable Kimberly J. Mueller, 501 I Street, Sacramento, California 95814, Courtroom 3, EarthLink will, and hereby does, move this Court to dismiss Plaintiff Linda Kleiner’s Class Action Complaint (“Complaint”) in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1) because Plaintiff lacks standing under Article III of the United States Constitution. / / / / / / Case 2:16-cv-01609-KJM-AC Document 9 Filed 09/26/16 Page 1 of 2 2 NOTICE OF MOTION AND RULE 12(B)(1) MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This motion is made following the conference of counsel by telephone on September 9, 2016, and their continued discussion on September 20-21, 2016. Despite the parties’ good-faith efforts, they have been unable to reach an agreement regarding Plaintiff’s standing. Accordingly, EarthLink moves to dismiss Plaintiff’s Complaint based upon the Notice and Motion, its Memorandum in Support of Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction attached hereto, and upon such other matters as may be presented to the Court at the time of the hearing. Dated this 26th day of September, 2016. KING & SPALDING LLP By: /s/ W. Scott Cameron W. Scott Cameron Attorneys for Defendant EarthLink, LLC Case 2:16-cv-01609-KJM-AC Document 9 Filed 09/26/16 Page 2 of 2 1 RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 W. SCOTT CAMERON (State Bar No. 229828) KING & SPALDING LLP 621 Capitol Mall, Suite 1500 Sacramento, CA 95814 Telephone: (916) 321-4800 Facsimile: (916) 321-4900 Email: scameron@kslaw.com Attorneys for Defendant: EarthLink, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA LINDA KLEINER, Plaintiff v. EARTHLINK, INC., Defendant. Case No. 2:16-CV-01609-KJM-AC RULE 12(b)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendant EarthLink, LLC (“EarthLink”), as successor to EarthLink, Inc., hereby moves to dismiss Plaintiff Linda Kleiner’s Class Action Complaint (“Complaint”) for lack of subject matter jurisdiction. INTRODUCTION Plaintiff Linda Kleiner alleges that she called EarthLink in December 2015, intending to purchase Internet services. Compl., ¶ 9. She claims that although she ultimately decided not to proceed with the purchase, EarthLink charged her bank account on a recurring basis for the services she had declined. Id., ¶¶ 10-12. According to Plaintiff, EarthLink violated the Electronic Funds Transfer Act (“EFTA”) by failing to provide her with a requisite written authorization form disclosing the terms of the recurring charges. Id., ¶¶ 45-46. The problem for Plaintiff, simply put, is that the core factual allegation of her Complaint is incorrect: the irrefutable documentary evidence shows that EarthLink has never created a customer Case 2:16-cv-01609-KJM-AC Document 9-1 Filed 09/26/16 Page 1 of 7 2 RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 account with Plaintiff, has never had a commercial relationship with Plaintiff, and has never charged Plaintiff for services arising out of her alleged December 2015 call. See Ex. 1 (“Spindel Decl.”), ¶¶ 8, 11-12. Plaintiff did not, as she claims, “call[] Defendant in order to purchase Defendant’s internet services” in December 2015 or at any other time. Compl., ¶ 11. While an individual named Dennis Kleiner called EarthLink in November 2015 to order services, Dennis is not named as the plaintiff and the Complaint makes no mention of him.1 The fact that Plaintiff did not “call[] Defendant in order to purchase Defendant’s internet services” undermines her entire claim. Plaintiff seeks to assert alleged statutory rights under EFTA to receive notices and disclosures. Those alleged statutory rights, however, would have only arguably applied to her if she were the party who entered into the transaction with EarthLink, which she was not. Plaintiff, accordingly, has no standing under Article III of the United States Constitution to pursue the EFTA claim asserted in the Complaint. First, EarthLink could not have deprived Plaintiff of a right provided by the EFTA to receive and review a written authorization of recurring bank charges because she was never entitled to any authorization or disclosure in the first place, given that she did not enter any transaction with EarthLink. Second, Plaintiff does not have an injury “fairly traceable” to EarthLink’s alleged violations of the EFTA because Plaintiff’s purported injuries have nothing to do with the statutory notice and authorizations she alleges are owed to a party entering into a transaction with EarthLink. Third, awarding damages, statutory penalties, and costs to Plaintiff would not redress any injury because, again, the alleged injury Plaintiff seeks to remedy through the EFTA—i.e., the alleged deprivation of the right to receive and review a written authorization prior to incurring recurring bank charges—could not have been suffered by her since she did not enter into any transaction with EarthLink. Given that Plaintiff does not have Article III standing to pursue the EFTA claim asserted in the Complaint, EarthLink respectfully requests that the Court grant its Motion to Dismiss for Lack of Subject Matter Jurisdiction. 1 Significantly, Dennis’s account with EarthLink would be governed by terms and conditions of service that include a binding arbitration clause that would require Dennis to arbitrate any claims he has against EarthLink and would preclude him from bringing such claims on a classwide basis, perhaps explaining his absence from Plaintiff’s Class Action Complaint. Case 2:16-cv-01609-KJM-AC Document 9-1 Filed 09/26/16 Page 2 of 7 3 RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FACTUAL BACKGROUND On November 10, 2015, an individual named Dennis Kleiner contacted an EarthLink call center and purchased dial-up Internet services for a monthly fee of $14.95. Spindel Decl., ¶ 5. Dennis provided a home address located in Rocklin, California. Id., ¶ 6. He also provided home and work phone numbers, the email address “dkleiner916@gmail.com,” and payment in the form of a Visa card with an expiration date of July 2019. Id., ¶ 7. EarthLink opened an account for Dennis on the day of his purchase, November 10, 2015. Id. It also issued him an EarthLink email address (“dkleiner@earthlink.net”) and sent various welcome and setup materials, both to his email and home address. Id. On December, 22, 2015, Plaintiff called EarthLink stating that she had never purchased any Internet services from EarthLink but was nonetheless being charged for them. Id., ¶ 8; see also Compl., ¶¶ 9-12. Although Plaintiff’s name was not associated with any customer account, she provided all of the digits of the VISA card Dennis had used a month earlier to open his account. Spindel Decl., ¶ 8. At Plaintiff’s request and based on her provision of the information about Dennis’s VISA card, an EarthLink call center representative cancelled Dennis’s account, rendering it inactive. Id. Plaintiff called EarthLink a second time on July 21, 2016, after having filed this lawsuit. Id., ¶ 9. During that call, Plaintiff claimed that EarthLink erroneously set up an account for her in December 2015, even though she had not wanted services, and provided the case number for this lawsuit. Id. Because Plaintiff’s name—Linda Kleiner—was not associated with any customer accounts, EarthLink’s call center representative was initially unable to find any relevant account, and Plaintiff hung up before the call center representative could obtain any additional information. Id. The call center representative subsequently conducted an Internet search for “Linda Kleiner” and found an individual with that name who resided in Roseville, California. Id., ¶ 10. Based on that information, the call center representative searched EarthLink’s records and eventually surmised that Plaintiff’s call had likely been in reference to the account opened by Dennis in November 2015. Id. To this day, EarthLink has no record of any account in Plaintiff’s name, and its records reflect that EarthLink simply charged Dennis for his November 2015 purchase using the payment information he provided. Id., ¶ 11. Case 2:16-cv-01609-KJM-AC Document 9-1 Filed 09/26/16 Page 3 of 7 4 RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff nonetheless claims in this lawsuit that EarthLink charged her for services based on a December 2015 transaction in which she “called Defendant in order to purchase Defendant’s internet services.” Compl., ¶¶ 11. She seeks to hold EarthLink liable for allegedly violating the EFTA by failing to: (1) obtain Plaintiff’s authorization for recurring charges; and (2) provide Plaintiff with “any written or electronic writing memorializing or authorizing the recurring or automatic payments.” Id., ¶¶ 13-15. Plaintiff seeks actual damages, statutory damages, and costs for the alleged violations. Id., ¶¶ 48-49. LEGAL STANDARD In this Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, EarthLink contests the factual veracity of Plaintiff’s allegations because the documentary evidence contradicts her allegations and plainly shows that she lacks Article III standing. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence.”); Owens v. Nuxoll, No. 2:12-cv- 01482 KJN, 2013 WL 5553897, at *3 (E.D. Cal. Oct. 8, 2013) (“[I]n a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.”). Because EarthLink challenges Plaintiff’s standing on factual grounds, “[t]he court need not presume the truthfulness of [] plaintiff’s allegations.” Owens, 2013 WL 5553897, at *3. To survive a factual challenge in a Rule 12(b)(1) motion to dismiss, “[o]nce the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). ARGUMENT To establish standing under Article III, Plaintiff must demonstrate: (1) that she “suffered an injury in fact,” (2) that the injury “is fairly traceable to the challenged conduct of the defendant,” and (3) that the injury “is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The Court should dismiss this case for lack of subject matter jurisdiction because Plaintiff cannot establish any of these elements. Case 2:16-cv-01609-KJM-AC Document 9-1 Filed 09/26/16 Page 4 of 7 5 RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. PLAINTIFF HAS NOT SUFFERED A LEGALLY COGNIZABLE INJURY-IN-FACT. The “[f]irst and foremost” element of Article III standing—injury-in-fact—requires Plaintiff to show that she “suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S.Ct. at 1548. Plaintiffs’ lawsuit alleges that EarthLink wrongfully deprived her of the opportunity to receive and review the written authorizations and disclosures required by EFTA, prior to imposing recurring bank account charges. But where, as here, a plaintiff alleges the deprivation of a statutory right, the plaintiff must at least establish that “the defendants violated her statutory rights.” Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109, 1115 (9th Cir. 2014) (emphasis in original); see also Spokeo, 136 S. Ct. at 1548. Plaintiff cannot even establish this threshold matter. The EFTA violations cited in the sole count of the Complaint relate to the need to obtain authorization from a “consumer” prior to initiating electronic fund transfers from a “consumer’s account.” Compl. ¶¶ 41-45. Because Plaintiff has never entered into any transaction with EarthLink and has never been an EarthLink customer (see Spindel Decl., ¶ 11), EarthLink’s alleged failure to provide the requisite authorizations and notices could not possibly have resulted in a violation of Plaintiff’s statutory rights—she had no such statutory rights because she did not enter into any transaction with EarthLink. Accordingly, Plaintiff has not suffered a legally cognizable injury-in-fact. 2. PLAINTIFF’S ALLEGED INJURY IS NOT FAIRLY TRACEABLE TO EARTHLINK’S ALLEGED FAILURE TO COMPLY WITH THE EFTA’S NOTICE AND DISCLOSURE REQUIREMENTS. To establish standing, Plaintiff must also show that the “injury is causally linked or ‘fairly traceable’ to the [Defendant’s] alleged misconduct, and not the result of misconduct of some third party not before the court.” Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1141 (9th Cir. 2013). “‘Although the ‘traceability’ of a plaintiff’s harm to the defendant’s actions need not rise to the level of proximate causation, Article III does require proof of a substantial likelihood that the defendant’s conduct caused plaintiff’s injury in fact.’” Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 878 (N.D. Cal. 2009) (quoting Habecker v. Town of Estes Park, Colo., 518 F.3d 1217, 1225 (10th Cir. 2008)). Thus, Plaintiff must “establish a ‘line of causation’ between [EarthLink’s] action and [Plaintiff’s] alleged harm that is more than ‘attenuated.’” Maya v. Centex Corp., 658 F.3d 1060, 1070 Case 2:16-cv-01609-KJM-AC Document 9-1 Filed 09/26/16 Page 5 of 7 6 RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (9th Cir. 2011) (quoting Allen v. Wright, 468 U.S. 737, 757 (1984)). Plaintiff cannot make this required showing in this case. Even apart from Plaintiff’s failure to properly establish an injury-in-fact, there is no allegation—let alone proof—that EarthLink’s purported violation of the EFTA caused any injury to Plaintiff. Any right to receive notice, disclosure, or authorizations required by the EFTA would belong to a party who entered into a transaction with EarthLink. Plaintiff—as a non-customer of EarthLink—cannot establish that EarthLink’s compliance or non-compliance with the EFTA impacts her in any way. Notably, Plaintiff has presented no allegations—let alone proof—regarding Dennis’s identity, relationship with Plaintiff, or role, if any, in purchasing EarthLink’s services. If anything, EarthLink’s record evidence suggests that any alleged injury to Plaintiff may be more traceable to Dennis than to EarthLink. Dennis agreed to purchase EarthLink’s Internet services. See Spindel Decl., ¶¶ 6-7, 11. Dennis provided the information contained in his account. Id., ¶¶ 4-7. And Dennis provided payment information in the form of the Visa card that purportedly resulted in charges for a service that Plaintiff allegedly did not want. Id., ¶ 7. The evidence and allegations thus, at most, suggest that any injury to Plaintiff was the “result of the misconduct of some third party not before the court,” which is fatal to Plaintiff’s chances of establishing standing to pursue this case. Wash. Envtl. Council, 732 F.3d at 1141. In any event, regardless of whether Dennis engaged in misconduct, Plaintiff clearly cannot show that she suffered a legally cognizable injury that is “fairly traceable” to EarthLink. 3. PLAINTIFF’S INJURY WOULD NOT BE REDRESSED BY A FAVORABLE JUDICIAL DECISION IN THIS CASE. Finally, to establish Article III standing, Plaintiff must demonstrate that her purported injury “is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547. But for a favorable judicial decision to redress an injury, the correct plaintiff must be named in the case: “if the wrong parties are before the court,” the court’s ability to redress the injury is compromised and “the plaintiff lacks standing.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982). Here, an award favorable to Plaintiff would not redress a legitimate injury resulting from the alleged EFTA violations since she never had a right to receive any of the statutory notices that she claims were due because she never entered into a transaction with EarthLink. Plaintiff, accordingly, lacks standing to pursue the EFTA Case 2:16-cv-01609-KJM-AC Document 9-1 Filed 09/26/16 Page 6 of 7 7 RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claim. CONCLUSION For the reasons set forth above, EarthLink respectfully requests that this Court grant its Motion to Dismiss in its entirety. Respectfully submitted, this 26th day of September, 2016. KING & SPALDING LLP By: W. Scott Cameron W. Scott Cameron Attorneys for EarthLink, LLC Case 2:16-cv-01609-KJM-AC Document 9-1 Filed 09/26/16 Page 7 of 7 DECLARATION OF JENNIFER SPINDEL IN SUPPORT OF RULE 12(B)(1) MOTION TO DISMISS CASE NO. 2:16-CV-01609-KJM-AC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 W. SCOTT CAMERON (State Bar No. 229828) KING & SPALDING LLP 621 Capitol Mall, Suite 1500 Sacramento, CA 95814 Telephone: (916) 321-4800 Facsimile: (916) 321-4900 Email: scameron@kslaw.com Attorneys for Defendant: EarthLink, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA LINDA KLEINER, Plaintiff v. EARTHLINK, INC., Defendant. Case No. 2:16-CV-01609-KJM-AC DECLARATION OF JENNIFER SPINDEL IN SUPPORT OF RULE 12(b)(1) MOTION TO DISMISS I, Jennifer Spindel, hereby make this Declaration under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows: 1. I am Senior Vice President and Managing Director of Consumer Products at EarthLink, LLC, successor to EarthLink, Inc. (“EarthLink”). I have been employed by EarthLink since November 2000. I have authority to submit this declaration on behalf of EarthLink in support of its motion to dismiss for lack of subject matter jurisdiction. 2. I am over the age of twenty-one and otherwise competent to testify to the matters stated herein. 3. I have personal knowledge of the facts stated herein based on my work experiences at EarthLink and on a review of documents and records kept by EarthLink in the ordinary course of its business. Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 1 of 10 DECLARATION OF JENNIFER SPINDEL IN SUPPORT OF RULE 12(B)(1) MOTION TO DISMISS CASE NO. 2:16-CV-01609-KJM-AC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. When an individual purchases an EarthLink product or service by contacting EarthLink’s call center, the EarthLink call center representative processing the transaction enters the individual’s name, contact information, address, and payment information into an interactive database system which then creates a customer account in our billing system called MIDAS. EarthLink call center representatives also have the ability to enter notes regarding customer interactions in an interactive database called Vantive. EarthLink’s call center representatives can subsequently pull and reference the customer’s account in MIDAS and in Vantive and can update the account’s information to reflect additional communications relating to the account. 5. According to EarthLink’s records in Vantive and MIDAS, an individual named Dennis Kleiner (“Dennis”) called an EarthLink’s call center on November 10, 2015, to purchase dial-up internet service from EarthLink. See Exs. A & B. 6. EarthLink’s Vantive and MIDAS records reflect that Dennis provided a home address in Rocklin, California; home and work phone numbers; an email address styled as “dkleiner916@gmail.com”; and payment information in the form of a “Visa” card. See Exs. A & B. 7. EarthLink opened an account for Dennis on the day of his purchase, November 10, 2015. See Exs. A & B. EarthLink provided Dennis with an EarthLink email address styled as: “dkleiner916@earthlink.net.” EarthLink sent information about Dennis’ account to Dennis: (a) by email to both the email address he provided and his new EarthLink email address; and (b) by mail to the street address he provided. Accordingly, based on EarthLink’s records, Dennis became an EarthLink subscriber on November 10, 2015, and was the owner of the account at all times. 8. EarthLink’s Vantive records indicate that an individual named Linda Kleiner (“Linda”) contacted an EarthLink call center on December 22, 2015, to complain that she was not aware of having an account with EarthLink. See Ex. A. Although Linda’s name Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 2 of 10 DECLARATION OF JENNIFER SPINDEL IN SUPPORT OF RULE 12(B)(1) MOTION TO DISMISS CASE NO. 2:16-CV-01609-KJM-AC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was not associated with any account, Linda provided information that matched information that Dennis had used to open his account. Id. The call center representative cancelled Dennis’s account, rendering it inactive. Id. 9. EarthLink’s Vantive records also indicate that Linda contacted EarthLink’s call center an additional time on July 21, 2016. Id. During that call, Linda accused EarthLink of setting up an account in December 2015, despite being told not to do so, and provided the case number for this lawsuit. Id. The call center representative could not locate any accounts under Linda’s name during the phone call. Id. Linda hung up before the call center representative was able to locate any relevant accounts. Id. 10. The notes provided in Vantive state that after Linda hung up, the call center representative conducted an internet search for “Linda Kleiner” and found an individual with that name who resided in Roseville, California. Id. Using that information, the call center representative searched EarthLink’s records for accounts for customers with the name “Kleiner” with addresses near Roseville. Id. The call center representative eventually located Dennis’s account, which he assumed was the account Linda intended to reference during the call. Id. 11. To my knowledge, EarthLink has no record of any account opened by Linda Kleiner. 12. To my knowledge, EarthLink’s direct communications with Linda Kleiner have been limited to the phone calls of December 22, 2015, and July 21, 2016, described above. Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 3 of 10 Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 4 of 10 EXHIBIT A Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 5 of 10 Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 6 of 10 Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 7 of 10 Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 8 of 10 EXHIBIT B Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 9 of 10 Case 2:16-cv-01609-KJM-AC Document 9-2 Filed 09/26/16 Page 10 of 10