DEFENDANTS’ RESPONSE TO PLAINTIFF’S REQUEST FOR DISMISSAL WITH PREJUDICE
4/24/24
Below is Whiteley and McNamara’s Response to the Request for Dismissal with Prejudice. We believe it summarizes the case’s recent events.
Note: Breaking Code Silence’s recent 990s are also included in the exhibits. Strangely, on Part IV of their 2023 990s, Breaking Code Silence lists Katherine McNamara as the “Treasurer” and Bill Boyles as being on the Board of Directors even though both had resigned in 2021.
- McNamara Declaration
- Whiteley Declaration
- Exhibit 1 – 2021 Annual Registration Renewal Fee Report – Attorney General of California
- Exhibit 2 – 2022 Annual Registration Renewal Fee Report and 990s – Attorney General of California
- Exhibit 3 – 2023 Annual Registration Renewal Fee Report and 990s – Attorney General of California
- Exhibit 4 – Opening bank statement for US Bank account – showing “Nonprofit Checking Account”
- Exhibit 5 – Email exchange between McNamara and Magill RE: US Bank Account Removal
- Exhibit 6 – Email between Jesse Jensen and Vanessa Hughes
- Exhibit 7 – Facebook Business Manager email to Whiteley
- Exhibit 8 – Facebook Support Message to Whiteley
- Exhibit 9 – Emails between BCS and Whiteley/McNamara counsel
- Exhibit 10 – Emails between BCS and Whiteley/McNamara counsel


















PLAINTIFF’S REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
DLA PIPER LLP (US)
WW W.D LA PI PE R.CO M
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JOHN SAMUEL GIBSON (SBN 140647)
john.gibson@us.dlapiper.com
JASON TAYLOR LUEDDEKE (SBN 279242)
jason.lueddeke@us.dlapiper.com
DLA PIPER LLP (US)
2000 Avenue of the Stars
Suite 400 North Tower
Los Angeles, California 90067-4735
Tel: 310.595.3000
Fax: 310.595.3300
Attorneys for Plaintiff
BREAKING CODE SILENCE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) non-profit,
Plaintiff,
v.
MCNAMARA, an
individual, JEREMY WHITELEY, an
individual, and DOES 1 through 50,
inclusive,
Defendants.
CASE NO. 2:22-CV-002052-SB-MAA
Hon. Maria A. Audero
PLAINTIFF’S REQUEST FOR
VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP
41(a)(2)
Complaint Filed: March 28, 2022
Trial Date: Not Set
Case 2:22-cv-02052-MAA Document 198 Filed 04/08/24 Page 1 of 5 Page ID #:8214
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PLAINTIFF’S REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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Pursuant to Federal Rule of Civil Procedure 41(a)(2), Plaintiff Breaking Code
Silence (“BCS”) respectfully requests that the Court permit BCS to dismiss, with
prejudice, its Complaint against Defendants McNamara and Jeremy
Whiteley (“Defendants”).
“[A]n action may be dismissed at the plaintiff’s request only by court order,
on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). But when a
plaintiff’s request for dismissal is with prejudice, some courts have held that the
dismissal is mandatory.1
In any event, “[a] district court should grant a motion for
voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will
suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975
(9th Cir. 2001). Legal prejudice means “prejudice to some legal interest, some legal
claim, some legal argument.” Id. at 976. Neither “the expense incurred in
defending against a lawsuit” nor the “[u]ncertainty [that] a dispute remains
unresolved” amounts to legal prejudice. Westlands Water Dist. v. U.S., 100 F.3d 94,
97 (9th Cir. 1996). There is likewise no legal prejudice merely because “a plaintiff
would gain a tactical advantage by” dismissing the case. Smith, 263 F.3d at 975.
Given the posture of the litigation, Defendants’ pending motion for monetary
and evidentiary sanctions, and the outcome of the March 25, 2024, informal
discovery conference, BCS has concluded it is not feasible to proceed with the
litigation. Proceeding with the litigation under these circumstances would likely
force BCS into bankruptcy or other financial predicament that could end its
existence and prevent it from continuing its mission. This would deprive the
individuals for whom it advocates of its support. To be clear, BCS’ request is not in
1 See, e.g., 9 Charles A. Wright & Arthur R. Miller § 2367 (4th ed. 2023) (“If
the plaintiff moves for a voluntary dismissal by court order under Rule 41(a)(2),
specifically requesting that it be with prejudice, it has been held that the district
court must grant the request.”); Harsell v. Virginia Motor Lodges, Inc., 2018 WL
2172506, at *2 (W.D. Va. May 10, 2018) (“Because district courts ordinarily ‘must’
grant a plaintiff’s request for voluntary dismissal with prejudice, Harsell’s Rule
41(a)(2) motion will be granted.”).
Case 2:22-cv-02052-MAA Document 198 Filed 04/08/24 Page 2 of 5 Page ID #:8215
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PLAINTIFF’S REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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any way an acknowledgement that its claims lack merit. BCS believes that it has
diligently prosecuted this litigation and put forth sufficient evidence to at least
survive the pending summary judgment motions, especially with reasonable
inferences from such evidence required to be drawn in the light most favorable to
BCS. BCS’ request is simply a product of the circumstances, which will render it
unable to afford the potential financial results of this litigation and continue its
mission.
Defendants will not suffer any prejudice—legal or otherwise—from a
dismissal. To the contrary, Defendants would no longer be required to defend this
litigation and would save the costs associated with doing so, including in connection
with drafting further sanctions briefing which the Court stated on April 5, 2024, will
be required, attending additional informal discovery conferences and hearings, and
preparing for trial. That Defendants have incurred attorney’s fees defending this
action thus far is not legal prejudice. See Westlands, 100 F.3d at 97. Nor would any
legal interest, claim, or argument of Defendants be prejudiced by dismissal,
particularly since the dismissal is with prejudice. Indeed, Defendants are plaintiffs
in a separate state court action against BCS and its representatives, and may
maintain their positions in that action.
Lastly, where, as here, the requested dismissal is with prejudice, awarding
Defendants attorney’s fees and costs is unwarranted. “Although courts often award
defendants costs and attorney fees when granting a plaintiff’s motion to dismiss
without prejudice under Rule 41(a)(2), such an award is improper when the
dismissal is with prejudice.” Chavez v. Huhtamaki, Inc., 2021 WL 4441976, at *3
(C.D. Cal. Sept. 28, 2021) (quotation omitted; emphasis in original); see also Design
Trend Int’l Interiors, Ltd. v. Huang, 2007 WL 2683790, at *4 (D. Ariz. Sept. 7,
2007) (“[Defendants] have provided no Ninth Circuit authority that a district court
may properly…dismiss [plaintiff’s] lawsuit with prejudice and also award[defendants] their costs and reasonable attorney’s fees incurred herein.”) (emphasis
Case 2:22-cv-02052-MAA Document 198 Filed 04/08/24 Page 3 of 5 Page ID #:8216
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PLAINTIFF’S REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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in original). “The purpose of such awards is generally to reimburse the defendant
for the litigation costs incurred, in view of the risk (often the certainty) faced by
defendant that the same suit will be refiled and will impose duplicative expenses
upon him. Without such risk, attorney fees are unjustified.” U.S. v. Two Parcels of
Real Prop. Located in Mendocino Cnty., 2001 WL 1180698, at *2 (N.D. Cal. Sept.
27, 2001) (quotation and citation omitted).
BCS’ request is with prejudice because BCS has no reason or occasion to
reassert its claims from the Complaint against Defendants in another proceeding.
As a result, there is no risk of relitigation of the claims at issue and no risk that
Defendants will incur duplicative expenses. Thus, “attorney fees are unjustified.”
Id.
Dated: April 8, 2024 Respectfully submitted,
DLA PIPER LLP (US)
By: /s/ John Samuel Gibson
John Samuel Gibson
Jason Taylor Lueddeke
Attorneys for Plaintiff
BREAKING CODE SILIENCE
Case 2:22-cv-02052-MAA Document 198 Filed 04/08/24 Page 4 of 5 Page ID #:8217
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PLAINTIFF’S REQUEST FOR VOLUNTARY DISMISSAL WITH
PREJUDICE PURSUANT TO FRCP 41(a)(2)
CASE NO. 2:22-CV-002052-SB-MAA
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L.R. 11-6.2 CERTIFICATION
The undersigned, counsel of record for Defendants certifies that this brief
contains 817 words, which complies with the word limit of L.R. 11-6.1.
Date: April 8, 2024 /s/ John Samuel Gibson
JOHN SAMUEL GIBSON
Case 2:22-cv-02052-MAA Document 198 Filed 04/08/24 Page 5 of 5 Page ID #:8218
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MCNAMARA DECL. RE: REQUEST FOR DISMISSAL
Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
Catherine A. Close, Bar No. 198549
cac@jbblaw.com
M. Adam Tate, Bar No. 280017
adam@jbblaw.com
JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
Irvine, California 92618
Telephone: (949) 477-2100
Facsimile: (949) 477-6355
Attorneys for Defendants
MCNAMARA and
JEREMY WHITELEY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) nonprofit,
Plaintiff,
vs.
MCNAMARA, an
Individual; JEREMY WHITELEY, an
individual; and DOES 1 through 50,
inclusive,
Defendants.
Case No. 2:22-cv-002052-SB-MAA
DECLARATION OF
MCNAMARA IN SUPPORT OF
DEFENDANTS’ RESPONSE TO
REQUEST FOR DISMISSAL WITH
PREJUDICE[Assigned to the Hon. Maria A. Audero]
Case 2:22-cv-02052-MAA Document 202-1 Filed 04/24/24 Page 1 of 4 Page ID #:8270
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MCNAMARA DECL. RE: REQUEST FOR DISMISSAL
DECLARATION OF MCNAMARA
I, MCNAMARA, hereby declare and state under penalty of
perjury the following facts:
1. I am over the age of eighteen and am a defendant in the abovecaptioned action filed by Plaintiff BREAKING CODE SILENCE (“BCS”). I have
personal knowledge of the following facts and, if called upon to testify, I can and
will competently testify thereto:
2. While I was a volunteer and Treasurer of BCS, Jennifer Magill and I
met at a Sierra Madre branch of US bank and together we opened a non-profit
business bank account for BCS in May 2021. The US Bank account was never a
personal account. Attached hereto as Exhibit 4 is a true and correct copy of the first
bank statement for the BCS US Bank account. It clearly reflects that the account
was in the name of BCS and that it was a “NON PROFIT CHECKING” account.
3. Immediately after being forced to resign from BCS on December 9,
2021, I attempted to remove myself as the company’s contact on the BCS’s US
Bank account. I was told by US Bank that another officer was needed to authorize
the change so I immediately contacted Jennifer Magill and Vanessa Hughes to
request that they remove me from the US Bank account. Attached hereto as Exhibit
5 is a December 10-14, 2021, email exchange between me and Jennifer Magill
regarding our efforts to transfer control of the account from me to Magill. As shown
on the emails, on December 14, 2021, Magill advised me that she went to the bank
and “just finished with the business banking manager” who showed her the updated
account information and confirmed that I was “removed from the account.” I never
had access to BCS’s US Bank account after that day and Magill’s declaration (Dkt.
200) is the first time that I am aware of that BCS is claiming I refused to turn over
control of the US Bank account.
Case 2:22-cv-02052-MAA Document 202-1 Filed 04/24/24 Page 2 of 4 Page ID #:8271
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MCNAMARA DECL. RE: REQUEST FOR DISMISSAL
4. I am a cybersecurity technical solutions architect for a multinational
technology conglomerate corporation. BCS’s false allegations made against me in
this litigation – basically that I “hacked” a nonprofit organization – are potentially
career-devastating to someone in my field and would likely preclude me from future
employment opportunities. This is why it is critical that I clear my name.
I hereby declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct.
DATED this 24th day of April 2024
/s/ McNamara
McNamara
Case 2:22-cv-02052-MAA Document 202-1 Filed 04/24/24 Page 3 of 4 Page ID #:8272
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MCNAMARA DECL. RE: REQUEST FOR DISMISSAL
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of April, 2024, I electronically filed the
foregoing paper(s) with the Clerk of the Court using the ECF system which will
send notification to all parties of record or persons requiring notice.
/s/ Helene Saller
Helene Saller
Case 2:22-cv-02052-MAA Document 202-1 Filed 04/24/24 Page 4 of 4 Page ID #:8273
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WHITELEY DECL. RE: REQUEST FOR DISMISSAL
Dirk O. Julander, Bar No. 132313
doj@jbblaw.com
Catherine A. Close, Bar No. 198549
cac@jbblaw.com
M. Adam Tate, Bar No. 280017
adam@jbblaw.com
JULANDER, BROWN & BOLLARD
9110 Irvine Center Drive
Irvine, California 92618
Telephone: (949) 477-2100
Facsimile: (949) 477-6355
Attorneys for Defendants
MCNAMARA and
JEREMY WHITELEY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE, a
California 501(c)(3) nonprofit,
Plaintiff,
vs.
MCNAMARA, an
Individual; JEREMY WHITELEY, an
individual; and DOES 1 through 50,
inclusive,
Defendants.
Case No. 2:22-cv-002052-SB-MAA
DECLARATION OF JEREMY
WHITELEY IN SUPPORT OF
DEFENDANTS’ RESPONSE TO
REQUEST FOR DISMISSAL WITH
PREJUDICE[Assigned to the Hon. Maria A. Audero]
Case 2:22-cv-02052-MAA Document 202-8 Filed 04/24/24 Page 1 of 4 Page ID #:8298
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WHITELEY DECL. RE: REQUEST FOR DISMISSAL
DECLARATION OF JEREMY WHITELEY
I, JEREMY WHITELEY, hereby declare and state under penalty of perjury
the following facts:
1. I am over the age of eighteen and am a defendant in the abovecaptioned action filed by Plaintiff BREAKING CODE SILENCE (“BCS”). I have
personal knowledge of the following facts and, if called upon to testify, I can and
will competently testify thereto:
2. While I was a volunteer of BCS, I opened a non-profit Facebook
Business Account for BCS, which allowed BCS to accept donations through
Facebook.
3. Immediately after being forced to resign from BCS, on June 28, 2021, I
removed myself as a “Business Manager” on BCS’s Facebook Business Account. A
true and correct copy of the confirmation I received of my removal from BCS’s
Facebook Business Account is attached hereto as Exhibit 7. I never had any
administrative access to BCS’s Facebook Business Account after that day.
4. Notwithstanding, on July 12, 2022 (more than a year after I selfrevoked my access to BCS’s Facebook account and received confirmation of same),
I received an unsolicited message in my personal Facebook account related to
BCS’s Facebook account, indicating that BCS’s charity payout was rejected.
Presumably, I received the message because BCS failed to remove my personal
Facebook account from its account, and I lacked the credentials to remove it myself.
A true and correct copy of the July 12, 2022, notification I received from Facebook
is attached hereto as Exhibit 8. I have subsequently received several similar
notifications and I am aware that my counsel has advised BCS’s counsel of the
issue.
Case 2:22-cv-02052-MAA Document 202-8 Filed 04/24/24 Page 2 of 4 Page ID #:8299
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WHITELEY DECL. RE: REQUEST FOR DISMISSAL
5. According to Facebook’s Help Center, only BCS could remove my
account and add a new Financial Admin by following the instructions on the
Nonprofit Financial Entity Application Support Page located online at
https://www.facebook.com/help/contact/239074646761463. (See Dkt. 152-51.)
Based on my continued receipt of notifications from Facebook, it appears that BCS
never took the steps necessary to update its account information and collect its
Facebook donations.
6. By trade I am a serial entrepreneur in the technology and healthcare
space. Based on the public false allegations made against me by BCS in this action –
that I “hacked” a nonprofit organization – I have been unable to engage in
fundraising for my newest startup, and cannot do so until I can clear my name in this
action. This lawsuit has effectively put my career as a tech entrepreneur on hold for
the last two years, while forcing me to incur millions of dollars in legal fees and
eDiscovery costs.
I hereby declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct.
DATED this 24th day of April 2024
/s/ Jeremy Whiteley
Jeremy Whiteley
Case 2:22-cv-02052-MAA Document 202-8 Filed 04/24/24 Page 3 of 4 Page ID #:8300
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WHITELEY DECL. RE: REQUEST FOR DISMISSAL
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of April, 2024, I electronically filed the
foregoing paper(s) with the Clerk of the Court using the ECF system which will
send notification to all parties of record or persons requiring notice.
/s/ Helene Saller
Helene Saller
Case 2:22-cv-02052-MAA Document 202-8 Filed 04/24/24 Page 4 of 4 Page ID #:8301