Case 2 Document 80 Filed 09/08/18 Page 1 of 9 Page ID #22087 HARDER LLP CHARLES J. HARDER (CA Bar No. 184593) RYAN J. STONEROCK (CA Bar No. 247132) 132 S. Rodeo Drive, Fourth Floor Beverly Hills, California 90212 Telephone: (424) 203-1600 Facsimile: (424) 203-1601 Email: CHarder@HarderLLP.com RStonerock@HarderLLP.com Attorneys for Defendant DONALD J. TRUMP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA STEPHANIE CLIFFORD a.k.a. STORMY DANIELS a.k.a. PEGGY PETERSON, an individual, Plaintiff, V. DONALD J. TRUMP a.k.a. DAVID DENNISON, an individual, ESSENTIAL CONSULTANTS, LLC, a Delaware Limited Liability Company, MICHAEL COHEN, an individual, and DOES 1 through 10, inclusive, Defendants. {00094226;1} Case No. 2: 18-CV-02217 DEFENDANT DONALD J. SUPPLEMENTAL STATEMENT REGARDING JOINT RULE 26(1) DECLARATION OF CHARLES J. HARDER Scheduling Conference Date: September 24, 2018 Time: 2:00 pm. Assigned to the Hon. S. James Otero Action Filed: March 6, 2018 SUPPLEMENTAL STATEMENT RE: RULE 26(i) REPORT Case 2 Document 80 Filed 09/08/18 Page 2 of 9 Page ID #:2088 Defendant Donald J. Trump Trump?) submits the following supplemental statement regarding the parties? Joint Rule 26(f) Report. No. 75.] Plaintiff Stephanie Clifford?s Clifford?) ?rst cause of action for declaratory relief seeks a declaration that the Con?dential Settlement Agreement dated October 28, 2016 (the ?Settlement Agreement?) was never formed, or in the alternative, is void, invalid, or otherwise unenforceable. No. 14.] As set forth in the attached letter to Ms. Clifford?s counsel, the parties agree that Mr. Trump did not sign the Settlement Agreement. Moreover, Mr. Trump has never taken the position that he is a party to the Settlement Agreement, or af?rmatively sought to invoke any rights under the Settlement Agreement. Ms. Clifford con?rmed these facts in her separate defamation action against Mr. Trump, which has now been transferred to this Court, stating: Mr. Trump has never in fact taken the position that he is a party to the Settlement Agreement or af?rmatively sought to invoke any rights under the Settlement Agreement in any action now pending including those in California. Case No. Opposition to Motion to Transfer, ECF Nos. 13, 16-1.] Mr. Trump does not, and will not, contest Ms. Clifford?s assertion that the Settlement Agreement was never formed, or in the alternative, should be rescinded. [Harder Decl., EX. Moreover, Mr. Trump covenants that he will not bring any action, proceeding or claim against Ms. Clifford to enforce any of the terms of the Settlement Agreement. As a result, Ms. Clifford?s claim against Mr. Trump for declaratory relief is moot, and the Court therefore lacks subject matter jurisdiction to decide this claim. See Arizonansfor O?icial English v. Arizona, 520 US. 43, 67 (2009) (?An actual controversy must be extant at all states of review, not merely at the time the complaint is 10B Wright Miller, Federal Practice and Procedure, Civil 3d, ?2757 (?It {00094226g1} -2- SUPPLEMENTAL STATEMENT RE: RULE 26(f) REPORT Case 2 Document 80 Filed 09/08/18 Page 3 of 9 Page ID #22089 is not enough that there may have been a controversy when the action was commenced if subsequent events have put an end to the controversy, or if the opposing party disclaims the assertion of countervailing rights?); Fleming v. Coverstone, 2010 WL 11508869, at *5 (SD. Cal. June 17, 2010); Paramount Pictures Corp. v. RePlayT V, 298 F.Supp.2d 921, 924-927 (CD. Cal. 2002); City of Parma, Ohio v. Cingular Wireless, LLC, 278 636, 641?42 (6th Cir. 2008); Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1381?82 (10th Cir. 2011); Tire Rubber Co., v. Doublestar Dong Feng Tyre Co., Ltd, 2018 WL 1896310, at *6 (CD. Cal. Mar. 28, 2018); Wahlberg v. Benson Builders, LLC, 2012 WL 3027984, at *7 (W.D. Mich. July 24, 2012). Federal Rule of Civil Procedure 12(h)(3) states that the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.? A court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action. Snell v. Cleveland, Inc, 316 F.3d 822, 826 (9th Cir. 2002); Emrich v. Touche Ross Co., 846 F.2d 1190, 1194 n. 2 (9th Cir. 1988) is elementary that the subject matter jurisdiction of the district court is not a waivable matter and may be raised at anytime by one of the parties, by motion or in the responsive pleadings, or sua sponte by the trial or reviewing court?) {00094226g1} -3- SUPPLEMENTAL STATEMENT RE: RULE 26(f) REPORT Case 2 Document 80 Filed 09/08/18 Page 4 of 9 Page ID #:2090 Based on the foregoing, Mr. Trump respectfully requests that the Court dismiss, sua sponte, Ms. Clifford?s ?rst cause of action for declaratory relief against Mr. Trump. In the alternative, Mr. Trump respectfully requests that, at the September 24, 2018 scheduling conference, the Court set a brie?ng schedule for Mr. Trump?s forthcoming motion to dismiss Ms. Clifford?s ?rst cause of action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure on the grounds that no actual controversy exists between Ms. Clifford and Mr. Trump regarding the Settlement Agreement. Dated: September 8, 2018 HARDER LLP By: Charles J. Harder CHARLES J. HARDER Attorneys for Defendant DONALD J. TRUMP {00094226g1} -4- SUPPLEMENTAL STATEMENT RE: RULE 26(f) REPORT Case 2 Document 80 Filed 09/08/18 Page 5 of 9 Page ID #22091 DECLARATION OF CHARLES J. HARDER 1, Charles J. Harder, declare: l. I am an attorney duly licensed to practice before all courts of the State of California and in the US. District Court for the Central District of California, among other courts. I am a partner of the law ?rm Harder LLP, counsel of record for Defendant Donald J. Trump (?Mr Trump?). I make this declaration based on my own personal knowledge and, if called and sworn as a witness, I could and would competently testify hereto. 2. Attached hereto as Exhibit A is a true and correct copy of my letter to counsel for plaintiff Stephanie Clifford, Michael Avenatti, which was transmitted to Mr. Avenatti on September 8, 2018. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September 8, 2018, at Los Angeles, California. CHARLES J. HARDER {00094226g1} -5- SUPPLEMENTAL STATEMENT RE: RULE 26(f) REPORT Case Document 80 Filed 09/08/18 Page 6 of 9 Page ID #:2092 Exhibit A Case Document 80 Filed 09/08/18 Page 7 of 9 Page ID #22093 132 S. RODEO DRIVE, FOURTH FLOOR BEVERLY HILLS, CA 90212 - 424.203.1600 September 8, 2018 VIA EMAIL Mr. Michael J. Avenatti Avenatti Associates, APC 520 Newport Center Drive, Suite 1400 Newport Beach, California 92660 Email: mavenatti@eaganavenatti.com Re: Stephanie Clifford v. Donald J. Trump et al. Case No. 2:18-cv-02217 Dear Mr. Avenatti: We are writing to meet and confer pursuant to Local Rule 7-3 regarding defendant Donald J. Trump?s contemplated motion to dismiss Ms. Clifford?s declaratory relief claim for lack of subject matter jurisdiction. This motion will be made pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that no actual controversy exists between Ms. Clifford and Mr. Trump regarding the Con?dential Settlement Agreement dated October 28, 2016 (the ?Settlement Agreement?). The parties agree that Mr. Trump did not sign the Settlement Agreement. Moreover, Mr. Trump has never taken the position that he is a party to the Settlement Agreement, or af?rrnatively sought to invoke any rights under the Settlement Agreement. Ms. Clifford has con?rmed these facts in her defamation action against Mr. Trump, stating: Mr. Trump has never in fact taken the position that he is a party to the Settlement Agreement or af?rmatively sought to invoke any rights under the Settlement Agreement in any action now pending including those in California. Case No. Opposition to Motion to Transfer, ECF Nos. 13, 16-1.] Mr. Trump hereby stipulates that he does not, and will not, contest Ms. Clifford?s assertion that the Settlement Agreement was never formed, or in the alternative, should be rescinded. Moreover, Mr. Trump hereby covenants that he will not bring any action, proceeding or claim against Ms. Clifford to enforce any of the terms of the Settlement Agreement. In light of the foregoing, Ms. Clifford?s claim against Mr. Trump for declaratory relief is moot, and the Court therefore lacks subject matter jurisdiction to decide this claim. See 10B Wright Miller, Federal Practice and Procedure 2757 (?The presence of a controversy must be measured at the time the court acts. It is not enough that there may have been a controversy {00094194;1} Case Document 80 Filed 09/08/18 Page 8 of 9 Page ID #:2094 Mr. Michael J. Avenatti September 8, 2018 Page 2 when the action was commenced if subsequent events have put an end to the controversy, or if the opposing party disclaims the assertion of countervailing rights?) Numerous cases have relied upon Wright Miller, Federal Practice and Procedure 2757, to dispose of claims under the federal Declaratory Judgment Act (28 U.S.C. 2201) as moot. For example, in Fleming v. Coverstone, 2010 WL 11508869, at *5 (SD. Cal. June 17, 2010), the Court granted a motion to dismiss for lack of subject matter jurisdiction, holding: ?the opposing party disclaims the assertion of countervailing rights,? a claim for a declaratory judgment is moot. 10B Charles Alan Wright Arthur Miller, Federal Practice and Procedure 2757, citing Eccles v. Peoples Bank of Lakewood Village, 333 US. 426, 434-35 (1947). [Defendant?s] statements that she did not sign the contract and will not sue moot the declaratory judgment claim. In Paramount Pictures Corp. v. Replay TV, 298 F.Supp.2d 921, 926?27 (CD. Cal. 2004), the Court granted a motion to dismiss for lack of subject matter jurisdiction, holding: . is not enough that there may once have been a controversy at the time the suit was commenced if subsequent events have put an end to the controversy.? (Citation) (citing, inter alia, 10 C. Wright A. Miller, Federal Practice and Procedure, 2757 at 766? 67 (1973 (Citation) Such is the case here. As the Court held previously, the Newmark Plaintiffs had standing to maintain their claims for declaratory relief. However, a subsequent event, the dismissal of the RePlayTV actions, put an end to the controversy. In City ofParma, Ohio v. Cingular Wireless, LLC, 278 F. App?x 636, 641?42 (6th Cir. 2008), the Court granted a motion to dismiss for lack of subject matter jurisdiction, holding: At the time of the hearing on November 2, 2006, the parties did not dispute their interpretation of the Agreement. . .Thus, Parma seeks a declaratory judgment memorializing the parties? agreed?upon interpretation of the Agreement. In the absence of a real dispute, however, such relief would constitute an advisory opinion, forbidden under Article of the Constitution. (Citations) Even if a controversy existed when Parma ?led suit, Cingular?s contentions on November 2, 2006 demonstrate its subsequent absence. See 10B Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure 27 57 (3d ed. 1998) (?It is not enough that there may have been a controversy when the action was commenced if subsequent events have put an end to the controversy, or if the opposing party disclaims the assertion of countervailing rights?) {00094194;1} Case Document 80 Filed 09/08/18 Page 9 of 9 Page ID #:2095 Mr. Michael J. Avenatti September 8, 2018 Page 3 See also Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1381?82 (10th Cir. 2011); Tire Rubber Co., v. Doublestar Dong Feng Tyre Co., Ltd, 2018 WL 1896310, at *6 (CD. Cal. Mar. 28, 2018); Wablberg v. Benson Builders, LLC, 2012 WL 3027984, at *7 (W.D. Mich. July 24, 2012). The federal Declaratory Judgment Act should govern this case. See In re Adobe Sys., Inc. Privacy Litig, 66 F. Supp. 3d 1197, 1219 (NB. Cal. 2014). However, if the California Declaratory Relief Act (Cal. Civ. Proc. Code 1060) applies, the result will not change. Id. . .whether the state or federal statute applies makes little difference as a practical matter, as the two statutes are broadly equivalent?); see also Am. Zurich Ins. Co. 12. Country Villa Serv. Corp, 2015 WL 4163008, at *6 (CD. Cal. July 9, 2015). As with the federal Declaratory Judgment Act, under the California Declaratory Relief Act, question may be deemed moot when, although it initially presented an existing controversy, the passage of time or the acts of the parties. . .have deprived the controversy of its life.? Boccato v. City of Hermosa Beach, 158 Cal.App.3d 804, 808. Accordingly, Ms. Clifford should immediately dismiss Mr. Trump from this lawsuit. If Ms. Clifford will not voluntarily dismiss Mr. Trump, please let us know your availability to meet and confer pursuant to Local Rule 7?3 regarding Mr. Trump?s contemplated motion to dismiss. Sincerely, CHARLES J. HARDER Of HARDER LLP cc: Brent H. Blakely, Esq. {00094194;1}