CLASS ACTION. Attorneys for Defendants SALESFORCE.COM, INC., MARC R. BENIOFF, and STEVE CAKEBREA D UNITED STATES DISTRICT COUR T

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1 1 BORIS FELDMAN, State Bar No. NINA F. LOCKER, State Bar No. Professional Corporatio n 0 Page Mill Road Palo Alto, CA 0-0 Telephone: (0) -00 Facsimile : (0) - boris.feldman@ wsgr.com ; nlocker@wsgr.com JOHN P. STIGI III, State Bar No. 0 CLAUDIA N. MAIN, State Bar No. 00 Professional Corporation One Market Street, Spear Tower, Suite 00 San Francisco, CA Telephone : () -000 Facsimile : () -0 jstigi@wsgr.com ; cmain@wsgr.com Attorneys for Defendants SALESFORCE.COM, INC., MARC R. BENIOFF, and STEVE CAKEBREA D UNITED STATES DISTRICT COUR T NORTHERN DISTRICT OF CALIFORNI A SAN FRANCISCO DIVISION 0 In re : SALESFORCE.COM, INC. SECURITIES LITIGATIO N This document relates to : ALL ACTIONS. Master File No. C-0-00 JSW CLASS ACTION DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE AS UNTIMELY PLAINTIFFS' MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION ; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date : March, 00 Time: :00 a.m. Courtroom :, th Floor Judge: Hon. Jeffrey S. White DEFENDANTS' MOT. To STRIKE As UNTIMELY PLTFS' MOT. FOR LEAVE To FILE MOTION FOR RECONSIDERATION, CASE No. C-0-00 JSW 01_I.DOC

2 1 NOTICE OF MOTION AND MOTION TO PLAINTIFF AND HIS ATTORNEYS OF RECORD : NOTICE IS HEREBY GIVEN that on March, 00, at :00 a.m., in the courtroom of the Honorable Jeffrey S. White, United States District Court, San Francisco, California, Defendants salesforce.com, Marc R. Benioff and Steve Cakebread (collectively "defendants"), will and hereby do move to strike Plaintiff's Motion for Leave to File Motion for Reconsideration, pursuant to Federal Rule of Civil Procedure (f). The grounds for this Motion are that Plaintiff's Motion for Leave to File Motion for Reconsideration is barred by Local Rule -(a) and untimely under Fed. R. Civ. P. (e). This Motion is based on this Notice and Motion; the Memorandum of Points and Authorities i n Support; the [Proposed] Order ; all pleadings and papers filed herein; oral argument of counsel ; and any other matter which may be submitted at the hearing. ISSUES TO BE DECIDED (Local Rule -(A)()) Is Plaintiff' s Motion for Leave to File Motion for Reconsideration under Civil L.R. - barred (i) where the Court has dismissed the action without leave to amend and Ordered the clerk to close the file, and (ii) where Plaintiff has failed to file a motion to alter or amend judgment under Rule (e) within the -day deadline for doing so? 0 DEFENDANTS' MOT. To STRIKE As UNTIMELY PLTFS' MOT. FOR LEAVE To FILE MOTION FOR RECONSIDERATION, CASE No. C-0-00 JSW 01_1.DOC

3 MEMORANDUM OF POINTS AND AUTHORITIE S 1 Defendants salesforce.com, Marc R. Benioff and Steve Cakebread hereby move to strike Plaintiff's Motion for Leave to File a Motion for Reconsideration. Plaintiff filed his motion in an untimely manner. Local Rule -(a) permits a motion for leave to file a motion for reconsideration "[b]efore the entry of a judgment adjudicating all of the claims and the rights and liabilities of all the parties in a case." Here, the Court entered its Order terminating the action on December, 00. The Order dismissed the claims without leave to amend and stated : "The Clerk is directed to close the file." Order at. This is a judgment. It was a written filing that terminated the action in all respects. Therefore, a motion under Local Rule--(a) does not lie. Plaintiffs only recourse would have been to bring a motion to alter or amend judgment under Rule (e) ; but Plaintiff missed the -day deadline for doing so. In his papers, Plaintiff skirts over the relevant issue, asserting: "When a Court' s ruling has not resulted in a final judgment, as is the case with the Order, reconsideration of the order may be granted pursuant to Fed. R. Civ. P. (b)[.]" Pltf. Mem. at. But that is not the case with the Order. The Order itself served as the final judgment here. ' 0 I Although much judicial ink has been spilled on the issue of what constitutes a "separate document" under Rule (a), the precedents are clear that an Order such as that made by the Court here on December, 00 suffices. See, e.g., Casey v. Albertson's, Inc., F.d 1, (th Cir. 00) ("We have found no cases that apply Rule... as a sword to reopen a case in which the parties and the judge all have indicated that they treat a district court entry as a final, separate judgment.") ; Kirkland v. Legion Ins. Co., F.d 1, (th Cir. 00) (although no formal final judgment was entered, the order in question had all the characteristics of a final judgment as it ended the litigation on the merits and left the court nothing to do but execute the judgment) ; Trotter v. Regents of Univ. of New Mexico, F.d, 1 (th Cir. 000) ("because Rule was designed solely to eliminate uncertainty, `the separate document rule does not apply where there is no question about the finality of the court's decision."' (citation omitted)) ; Gross v. Burggraf Constr. Co., F.d 1, (th Cir. ) (since Rule applies where there is uncertainty regarding whether a final judgment has been entered, the absence of a separate Rule order did not prohibit appellate review where there was no question regarding the finality of the district court's order) ; Beaudry Motor Co. v. Abko Props. Inc., 0 F.d 1, - (th Cir ) (holding that a civil minute order satisfied Rule where it by its language it was clearly a decision of the Court and where it "put plaintiff's counsel on notice that an order had been entered against his client") ; Simmons v. Ghent, 0 F.d (th Cir ) (the failure to file a separate judgment order was not an issue as the court's intention to terminate the litigation was clear) ; Hummer v. Dalton, F.d (th Cir. 1) (where decisions of the district court were plainly intended to be "final (continued... ) DEFENDANTS' MOT. To STRIKE As UNTIMELY -- 0.DOC PLTFS' MOT. FOR LEAVE To FILE MOTION FOR RECONSIDERATION, CASE No. C-0-00 JSW

4 The best evidence that the Court's December, 00 Order was a final judgment is th e action that Plaintiff took shortly after moving for leave to file a motion for reconsideration : he appealed. Obviously, Plaintiff could only appeal from a final judgment. U.S.C. 1. Plaintiff thereby acknowledges that the Court entered final judgment on December, 00. The motion for reconsideration is therefore barred by Local Rule -(a) and untimely under Rule (e). Respectfully submitted, 1 Dated: January, 00 Professional Corporatio n By : /s/ Boris Feldman Boris Feldman Attorneys for Defendants SALESFORCE.COM, INC., MARC R. BENIOFF, and STEVE CAKEBREA D 0 (...continued from previous page) decisions in the case," were recorded on the docket and were understood and accepted by the plaintiff as final for purposes of filing an appeal, the reason for the application of Rule was not present). Docket No.. By filing the Notice of Appeal, Plaintiff has waived any argument that the December, 00 Order was not a final judgment under Rule. Bankers Trust Co. v. Mallis, U.S. 1,, - () (requirement of separate judgment waived where District Court was clear that its opinion was a final decision, where it was recorded in the docket and where party did not object to taking an appeal in the absence of a separate judgment) ; Green v. Seymour, F.d, (th Cir. ) (same) ; Silver Star Enter., Inc. v. M/V Saramacca, F.d 0, 1 n. (th Cir ) (parties may waive the requirements of Rule by appealing from an order) ; Simmons v. Willcox, F.d, 0 n. (th Cir. 0) (same) ; Rosser v. Chrysler Corp., F.d, 0 (th Cir. ) (requirements of Rule can be waived by the parties). Once Plaintiff filed the Notice of Appeal, this Court lost jurisdiction over this matter and thus may not consider Plaintiffs Motion for Leave to File Motion for Reconsideration. United Nat'l Ins. Co. v. R&D Latex Corp., F.d 0, 0 (th Cir. 001) ("Once a notice of appeal takes effect, the district court loses jurisdiction over the matter placed before the appellate court") ; see In re Merck & Co., Inc. Sec. Litig., F.d 1, (d Cir 00) (noting that district courts generally are divested of jurisdiction and their power to act once a notice of appeal has been filed) ; Pittock v. Otis Elevator Co., F.d, (th Cir. ) (same). While there are some exceptions to this rule, Plaintiff's motion does not fall into any of these exceptions. DEFENDANTS' MOT. To STRIKE AS UNTIMELY -- 01_I.DOC PLTFS' MOT. FOR LEAVE To FILE MOTION FO R RECONSIDERATION, CASE No. C-0-00 JSW

5 1 BORIS FELDMAN, State Bar No. NINA F. LOCKER, State Bar No. Professional Corporation 0 Page Mill Road Palo Alto, CA 0-0 Telephone: (0) -00 Facsimile: (0) - boris. feldman@wsgr.com ; nlocker@wsgr.com JOHN P. STIGI III, State Bar No. 0 CLAUDIA N. MAIN, State Bar No. 00 Professional Corporatio n One Market Street, Spear Tower, Suite 00 San Francisco, CA Telephone : () -000 Facsimile : () -0 jstigi@wsgr.com ; cmain@wsgr.com Attorneys for Defendants SALESFORCE.COM, INC., MARC R. BENIOFF, and STEVE CAKEBREA D UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 0 1 In re : SALESFORCE.COM, INC. SECURITIES LITIGATIO N This document relates to : ALL ACTIONS. Master File No. C-0-00 JSW CLASS ACTION [PROPOSED] ORDER STRIKING PLAINTIFF'S UNTIMELY MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATIO N Date: March, 00 Time: :00 a.m. Courtroom:, `h Floor Judge: Hon. Jeffrey S. White [PROPOSED] ORDER STRIKING PLAINTIFF'S -1- UNTIMELY MOT. FOR LEAVE To FILE MOT. FOR RECONSIDERATION, CASE No. C-0-00 JSW 00_I.DOC

6 Defendants salesforce.com, Marc R. Benioff and Steve Cakebread ("Defendants") have moved this Court to strike Plaintiff's Motion for Leave to File Motion for Reconsideration as untimely. Having considered the request, and Plaintiffs response, if any, the Court GRANTS Defendants' motion and hereby ORDERS that 1. Plaintiff's Motion for Leave to File Motion for Reconsideration, Plaintiff's Memorandum of Points and Authorities in Support thereof, and Plaintiffs [Proposed] Order relating to such Motion are STRICKEN from the record. IT IS SO ORDERED. DATED : 00 The Honorable Jeffrey S. White United States District Judge Northern District of Californi a 1 0 [PROPOSED] ORDER STRIKING PLAINTIFF'S UNTIMELY MOT. FOR LEAVE To FILE MOT. FOR RECONSIDERATION, CASE No. C-0-00 JSW -- 00_I.DOC