County, clerk-recorder left waiting to be served |

County, clerk-recorder left waiting to be served

A federal lawsuit filed in U.S. District Court on Feb. 3 against Nevada County and Clerk-Recorder Gregory Diaz has not been served on the defendants – two weeks later.

That delay – which AtPac attorney Michael Thomas characterized as an oversight – means the county and Diaz have not yet had a chance to formally respond.

According to the Federal Rules of Civil Procedure, the plaintiff has up to 120 days to serve the suit, to which the defendants then have a certain amount of time to respond. If AtPac’s attorneys waited the full four months – the deadline is June 3 – that would give the county little chance to issue a public response before the June 8 primary.

Diaz is seeking election to the post he was appointed to in 2007. Grass Valley lawyer Barry Pruett also has announced plans to run for the clerk-recorder post.

Thomas this week denied any political motivations “whatsoever” in the lawsuit’s timing, and said he was not sure why the county had not yet been served.

“We had planned to serve it sooner,” he said. “We’re looking at that right now. We will be serving them in the very near future.”

County Counsel Michael Jamison has seen the lawsuit – but only because he pulled a copy from The Union’s Web site, he said. He added he had not been aware the suit had been filed until he was contacted by The Union on Feb. 5.

Jamison declined to speculate on why AtPac’s law firm, Downey Brand, has delayed service.

“I don’t think one can generalize,” Jamison said. “Those decisions are made based on individual circumstances.”

For example, a plaintiff might file a complaint for damages purely as a stopgap measure to avoid the expiration of a statute of limitations, Jamison explained. That sometimes happens when the plaintiff is not yet committed to going through with a lawsuit.

But there is no statute of limitations issue in AtPac’s case.

The suit alleges the county and Diaz broke a contract with AtPac, the Auburn firm that provided software and consulting services for a decade to the Clerk-Recorder’s Office, by giving AtPac’s proprietary information to the competitor that won the contract in 2008.

The lawsuit claims Nevada County’s alleged actions constitute trade secret

misappropriation, copyright infringement and a violation of the Computer Fraud and Abuse Act.

AtPac is asking for an unspecified sum in damages.

Since the lawsuit was made public, Pruett – who formerly served as counsel to AtPac and who has received a $1,500 campaign contribution from the company’s owner – has charged that Diaz’s “unprofessional and improper” handling of the situation with the vendor is what prompted him to enter the race.

Pruett has denied having anything to do with the timing or the filing of the lawsuit, telling The Union it would have been better for him politically if the suit had surfaced in April.

To contact Staff Writer Liz Kellar, e-mail or call (530) 477-4229.

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