Declaration of Joshua S. Levy — Oto Analytics, LLC v. Benworth Capital Partners LLC (Dkt. 35-1, N.D. Cal. No. 3:24-cv-03975)

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U.S. District Court for the Northern District of California · No. 4:24-cv-03975-AMO · Doc. 35-1 · 2024-07-26 · Docket on CourtListener

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DECLARATION OF JOSHUA S. LEVY 
Case No. 3:24-cv-03975-AMO 
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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
SAN FRANCISCO DIVISION 
 
 
WILLKIE FARR & GALLAGHER LLP 
Joshua S. Levy (admitted pro hac vice) 
jlevy@willkie.com 
1875 K Street, N.W. 
Washington, DC 200066-1238 
Telephone: 
(202) 303-1147 
Attorney for Petitioner 
Oto Analytics, LLC 
OTO ANALYTICS, LLC, 
Petitioner, 
v. 
BENWORTH CAPITAL PARTNERS LLC, 
Respondent. 
Case No. 3:24-cv-03975-AMO 
DECLARATION OF JOSHUA S. LEVY 
Hon. Araceli Martínez-Olguín 
Case 4:24-cv-03975-AMO     Document 35-1     Filed 07/26/24     Page 1 of 4

 
 
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DECLARATION OF JOSHUA S. LEVY 
Case No. 3:24-cv-03975-AMO 
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I, Joshua S. Levy, pursuant to 28 U.S.C. § 1746, declare as follows: 
1. 
I am a member in good standing of the bars of Washington, D.C. and New York, 
am admitted pro hac vice in the United States District Court for the Northern District of 
California, and am an attorney at Willkie Farr & Gallagher LLP (“Willkie Farr”), counsel for 
Petitioner Oto Analytics, LLC (“Womply”).  
2. 
I respectfully submit this declaration to provide this Court with certain materials 
cited in Womply’s Opposition to Benworth Capital Partners LLC’s (“Benworth”) Administrative 
Motion for Clarification of Deadline and/or for Extension of Time to Respond to Womply’s 
Petition to Confirm Arbitration Award and Entry for Judgment (“Motion”; ECF No. 26) and, 
pursuant to Civil Local Rule 6-3(b), to set forth the basis for Womply’s Opposition to Benworth’s 
Motion.  This declaration is based on my personal knowledge or information provided to me.   
3. 
On July 1, 2024, Womply filed in this Court a Petition to Confirm Arbitration 
Award and for Entry of Judgment (“Petition”; ECF No. 1).  That same day, I emailed Benworth’s 
counsel the Petition and accompanying filings.  Willkie Farr also emailed Benworth’s counsel a 
File Transfer Protocol (“FTP”) link to download the Petition and accompanying filings.  Willkie 
Farr’s records show that, on July 2, 2024, Farola Saint-Remy, a paralegal employed by 
Benworth’s counsel, accessed and downloaded the Petition and accompanying filings from the 
FTP link.  Attached hereto as Exhibit 1 is a true and correct copy of the email thread between 
Womply’s counsel and Benworth’s counsel, dated July 1, 2024 to July 8, 2024, and 
accompanying attachment. 
4. 
On July 1 and July 3, 2024, I emailed Benworth’s counsel to ask whether they 
would accept service of the Petition on behalf of Benworth.  I attached to my emails a copy of 
form AO 339 (019/09) Waiver of the Service of Summons (the “Form”), which Willkie Farr 
downloaded from this Court’s public website.  The Form contains certain fillable text boxes for 
party and counsel identifying information and the date of service, which Willkie Farr filled in.  
The remainder of the Form is not editable, and Willkie Farr did not edit it.  Attached hereto as 
Exhibit 2 is a true and correct copy of the email thread between Womply’s counsel and 
Benworth’s counsel, dated July 1, 2024 to July 3, 2024, and accompanying attachment. 
Case 4:24-cv-03975-AMO     Document 35-1     Filed 07/26/24     Page 2 of 4

 
 
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DECLARATION OF JOSHUA S. LEVY 
Case No. 3:24-cv-03975-AMO 
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5. 
On July 2, 2024, Willkie Farr mailed paper copies of the Petition and 
accompanying filings via Federal Express to Benworth’s counsel’s office and to Benworth’s 
registered agent.   
6. 
On July 3, 2024, Benworth’s counsel emailed me asking whether I “agree to accept 
service on our petition to vacate the award.”  (Ex. 1.)  I responded that “[w]e will agree to accept 
service of Benworth’s petition to vacate the arbitration award if you will accept service of 
Womply’s petition to confirm the arbitration award.”  (Id.)  Benworth’s counsel replied:  “Change 
it to my name, date it for Friday, July 5 and I will sign and return.”  (Id.)  Willkie Farr did so and, 
on July 8, 2024, Benworth’s counsel emailed me the executed Form.  (Id.) 
7. 
On July 12, 2024, Willkie Farr emailed Benworth’s counsel certain filings, orders, 
and forms in this action, including Womply’s Notice of Hearing.  On July 16, 2024, Willkie Farr 
emailed Benworth’s counsel additional filings in this action, including this Court’s text orders 
and notices.  Attached hereto as Exhibit 3 is a true and correct copy of the email thread between 
Womply’s counsel and Benworth’s counsel, dated July 12, 2024 to July 19, 2024. 
8. 
 On July 17, 2024 Benworth’s counsel emailed me that “[w]e noticed that you all 
filed a notice of hearing for August 8th on Womply’s petition to confirm.  We are requesting that 
this hearing is postponed.  As you know, the time to submit our answer to the petition is not due 
until after the hearing: on September 3rd.”  (Ex. 3.)  On July 18, 2024, I responded that “the case 
was reassigned to a different judge and all hearing dates ‘are vacated’ and ‘must be renoticed for 
hearing’ before the new judge, so no need to worry about the hearing date.  The Court noted that 
the ‘due date for any opposition or reply papers not yet filed shall be calculated in accordance 
with Civil Local Rule 7-3.’  I’ve re-attached the Court’s Order and Notice for your convenience, 
which we sent you on Tuesday.”  (Id. (citations omitted).)  Two minutes later, Benworth’s 
counsel acknowledged receipt of my email.  (Id.) 
9. 
Later on July 18, 2024, I emailed Benworth’s counsel stating that “[t]o ensure 
there’s no confusion, our Petition is a motion so, as the Court noted, the ‘due date for any 
opposition or reply papers not yet filed shall be calculated in accordance with Civil Local Rule 
7-3,’ which provides 14 days to file any opposition.  Because Benworth accepted service effective 
Case 4:24-cv-03975-AMO     Document 35-1     Filed 07/26/24     Page 3 of 4

 
 
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DECLARATION OF JOSHUA S. LEVY 
Case No. 3:24-cv-03975-AMO 
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July 5, your opposition is due tomorrow.”  (Ex. 3.)  Benworth’s counsel responded that “[y]es, I 
think there is confusion.  Will you agree to an enlargement, assuming that you are correct?”  (Id.)  
When Benworth asked for an extension until September 3rd, I responded that “[w]e do not agree 
to the more than 6-week delay that you are requesting.  As I am sure you know, proceedings to 
confirm an arbitration award are summary in nature, and Womply has been litigating against 
Benworth for more than three years.  There is no reason to further delay these proceedings.  
Benworth has had ample time to draft papers seeking to vacate the award.  Indeed, it has had the 
interim award for more than seven months.  Nevertheless, as a courtesy, we will agree to an 
extension to Tuesday, July 23, for you to put in a response to our petition, but we cannot agree 
to further delay.”  (Id.)  Benworth’s counsel and I then negotiated a stipulation to extend 
Benworth’s deadline to respond to the Petition to July 23, 2024.  (Id.) 
I declare under penalty of perjury under the laws of the United States that the foregoing 
is true and correct.  
 
Executed this 26th day of July 2024 in New York, New York. 
 
 
 
 
By: /s/ Joshua S. Levy 
 
Joshua S. Levy 
 
 
Case 4:24-cv-03975-AMO     Document 35-1     Filed 07/26/24     Page 4 of 4

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