Simon v. Adzilla, Inc [New Media] et al

Filing 44

Memorandum in Opposition re 32 MOTION to Dismiss for Lack of Jurisdiction NOTICE OF MOTION AND MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(2) MOTION to Dismiss for Lack of Jurisdiction NOTICE OF MOTION AND MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(2) filed bySusan Simon. (Aschenbrener, Michael) (Filed on 6/19/2009)

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Simon v. Adzilla, Inc [New Media] et al Doc. 44 Case3:09-cv-00879-MMC Document44 Filed06/19/09 Page1 of 7 Alan Himmelfarb- SBN 90480 1 Michael J. Aschenbrener (admitted pro hac vice) KAMBEREDELSON, LLC 2 2757 Leonis Boulevard Los Angeles, California 90058 3 t: 323.585.8696 f: 323.585.6195 4 ahimmelfarb@kamberedelson.com 5 Joseph H. Malley (admitted pro hac vice) 6 LAW OFFICE OF JOSEPH H. MALLEY 1045 North Zang Boulevard 7 Dallas, Texas 75208 Ph. (214) 943-6100 8 Fax (214) 943-6170 9 ATTORNEYS FOR PLAINTIFFS 10 11 12 13 14 15 SUSAN SIMON, individually and on behalf of a class of similarly situated individuals, 16 Plaintiff, 17 v. 18 ADZILLA, INC. (NEW MEDIA), a Delaware CONDUCIVE CORPORATION, 19 corporation;Corporation; CONTINENTAL a Delaware 20 VISINET BROADBAND, INC., a Delaware Corporation; CORE COMMUNICATIONS, 21 INC. d/b/a CORETEL COMMUNICATIONS, INC., a Delaware Corporation; and DOES 122 50, Corporations Defendants, 23 24 25 26 27 28 PLAINTIFF'S RESPONSE TO DEFENDANT CORE COMMUNICATIONS, INC.'S MOTION TO DISMISS UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Case No.: 09-cv-879 MMC PLAINTIFF'S RESPONSE TO DEFENDANT CORE COMMUNICATIONS, INC.'S MOTION TO DISMISS Date: Time: Courtroom: Judge: July 10, 2009 9:00 a.m. 7, 19th Floor Hon. Maxine M. Chesney Defendants. 1 Case No. 3:09-cv-879 MMC Dockets.Justia.com Case3:09-cv-00879-MMC Document44 Filed06/19/09 Page2 of 7 1 2 INTRODUCTION Defendant Adzilla, Inc. (New Media) ("Adzilla") partnered with the defendant Core 3 Communications, Inc. ("CoreTel"), among others, to engage in a practice known as "Deep Packet 4 Inspection," ("DPI") which allowed the defendants to intentionally intercept the private 5 communications of thousands of internet users without the users' knowledge or consent. 6 Defendants did this because they were able to monetize the personal information gathered in this 7 process by using it for so-called "behavioral advertising." 8 Plaintiff filed this suit (Dkt. 1) on behalf of herself and several putative classes on 9 February 27, 2009 against Adzilla, CoreTel, and several other entities. Core timely moved to 10 dismiss the Complaint on May 29, 2009. (Dkt. 32). 11 CoreTel moves to dismiss under FED. R. CIV. P. 12(b)(2), arguing that this Court lacks 12 personal jurisdiction over it because it claims it does not conduct any business in California and 13 because its DPI partner, Adzilla, was based in and run out of Canada, not California. In so doing, 14 CoreTel introduced new issues of fact that fall outside the allegations of the complaint that bear on 15 the matter of personal jurisdiction. Accordingly, Plaintiff needs to investigate these facts in order 16 to respond properly to CoreTel's motion to dismiss. 17 18 STATEMENT OF FACTS This case concerns the unauthorized interception of electronic communications 19 transmitted over the internet. (Compl. 1). Adzilla contracted with CoreTel and others to install 20 hardware directly into the networks of defendant internet service providers ("ISPs") (Compl. 21 31-32) and competitive local exchange carriers ("CLECs") (Compl. 33-35) that capture all 22 data transmitted through these entities. (Compl. 25). Among these entities is defendant 23 CoreTel, a CLEC. (Compl. 20, 35). 24 By working together, Adzilla and CoreTel were able to collect vast quantities of 25 information about the ISP customers that connect to the internet via CoreTel. (Compl. 51, 57). 26 In fact, Defendants were able to track every online move made by the ISP customers, including the 27 web pages visited, log-ins and passwords at banking sites, and the content of emails sent and 28 PLAINTIFF'S RESPONSE TO DEFENDANT CORE COMMUNICATIONS, INC.'S MOTION TO DISMISS 2 Case No. 3:09-cv-879 MMC Case3:09-cv-00879-MMC Document44 Filed06/19/09 Page3 of 7 1 received. (see Compl. 51, 88). Defendants then transmitted all of the data they silently 2 collected to Adzilla's data center in California. (Compl. 73) where Adzilla analyzed this very 3 valuable information to place so-called "behavioral advertisements." (Compl. 75). All of this 4 was done in California and without the informed consent of the affected web users. (Compl. 5 81, 82, 84-87). Defendants were then able to use this very valuable information for so-called 6 "behavioral advertising." (Compl. 45-47, 78). Adzilla and its ISP and CLEC partners shared in 7 the revenue generated from these acts. (Compl. 83). 8 9 10 STANDARD OF DECISION CoreTel moves to dismiss under FED. R. CIV. P. 12(b)(2). Plaintiff carries the burden of establishing jurisdiction. Farmers Ins. Exch. v. Portage La 11 Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). The non-moving party may not rest on 12 the allegations in the complaint; instead, the non-moving party must produce specific facts 13 demonstrating that the court possesses jurisdiction. Data Disc, Inc. v. Systems Technology 14 Associates, Inc., 557 F.2d 1280, 1284-85 (9th Cir. 1977). The court may consider evidence 15 presented in affidavits and other relevant materials to assist it in determining jurisdiction, and may 16 order discovery on the jurisdictional issue. Id.; Skidmore v. Syntex Labs, Inc., 529 F.2d 1244 (5th 17 Cir. 1976). 18 19 ARGUMENT Because CoreTel has raised the issue of personal jurisdiction, Plaintiff must provide facts 20 beyond the Complaint's allegations to demonstrate that the Court possesses personal jurisdiction 21 over CoreTel. Data Disc, 557 F.2d at 1284-85. For this reason, and because CoreTel has 22 introduced new facts outside the Complaint's allegations by way of declarations attached to its 23 motion to dismiss, Plaintiff is unable to respond at this time to CoreTel's motion to dismiss. 24 Instead, Plaintiff needs to conduct limited jurisdictional discovery so that she can provide to the 25 Court the necessary jurisdictional facts. For this reason, Plaintiff filed a Motion for Leave to 26 Conduct Jurisdictional Discovery on June 19, 2009. (Dkt. 43). After Plaintiff conducts 27 28 PLAINTIFF'S RESPONSE TO DEFENDANT CORE COMMUNICATIONS, INC.'S MOTION TO DISMISS 3 Case No. 3:09-cv-879 MMC Case3:09-cv-00879-MMC Document44 Filed06/19/09 Page4 of 7 1 jurisdictional discovery, she will be able to respond to the pending CoreTel motion to dismiss in 2 the manner required by applicable law. 3 4 CONCLUSION Plaintiff requires leave to conduct jurisdictional discovery in order to respond properly to 5 CoreTel's motion to dismiss. Accordingly, Plaintiffs request that CoreTel's motion to dismiss be 6 denied without prejudice, or alternatively, be stayed pending jurisdictional discovery. 7 8 Dated: June 19, 2009 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S RESPONSE TO DEFENDANT CORE COMMUNICATIONS, INC.'S MOTION TO DISMISS KAMBEREDELSON, LLC By: _s/ Michael J. Aschenbrener __ Michael J. Aschenbrener Attorney for Plaintiffs 4 Case No. 3:09-cv-879 MMC Case3:09-cv-00879-MMC Document44 Filed06/19/09 Page5 of 7 1 PROOF OF SERVICE The undersigned certifies that, on June 19, 2009, he caused this document to be 2 electronically filed with the Clerk of Court using the CM/ECF system, which will send 3 notification of filing to counsel of record for each party, listed below: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S RESPONSE TO DEFENDANT CORE COMMUNICATIONS, INC.'S MOTION TO DISMISS Joseph Edward Addiego, III Michael J. Aschenbrener Gavin Lewis Charlston Alan Himmelfarb Joseph H Malley Beatriz Mejia Owen J. Rescher Rocky N. Unruh s/ Michael J. Aschenbrener Michael J. Aschenbrener 5 Case No. 3:09-cv-879 MMC Case3:09-cv-00879-MMC Document44 Filed06/19/09 Page6 of 7 Alan Himmelfarb- SBN 90480 1 Michael J. Aschenbrener (admitted pro hac vice) KAMBEREDELSON, LLC 2 2757 Leonis Boulevard Los Angeles, California 90058 3 t: 323.585.8696 f: 323.585.6195 4 ahimmelfarb@kamberedelson.com 5 Joseph H. Malley (admitted pro hac vice) 6 LAW OFFICE OF JOSEPH H. MALLEY 1045 North Zang Boulevard 7 Dallas, Texas 75208 Ph. (214) 943-6100 8 Fax (214) 943-6170 9 ATTORNEYS FOR PLAINTIFFS 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 SUSAN SIMON, individually and on behalf of a class of similarly situated individuals, 15 Plaintiff, 16 v. 17 ADZILLA, INC. (NEW MEDIA), a Delaware 18 corporation; CONDUCIVE CORPORATION, a Delaware Corporation; CONTINENTAL 19 VISINET BROADBAND, INC., a Delaware Corporation; CORE COMMUNICATIONS, 20 INC. d/b/a CORETEL COMMUNICATIONS, INC., a Delaware Corporation; and DOES 1-50, 21 Corporations Defendants, 22 23 24 25 26 27 [PROPOSED] ORDER DENYING DEFENDANT DISMISS Case No. 09-cv-879 MMC Case No.: 09-cv-879 MMC [PROPOSED] ORDER DENYING DEFENDANT CORE COMMUNICATIONS, INC'S MOTION TO DISMISS Date: Time: Courtroom: Judge: July 10, 2009 9:00 a.m. 7, 19th Floor Hon. Maxine M. Chesney Defendants. 28 CORE COMMUNICATIONS, INC'S MOTION TO Case3:09-cv-00879-MMC Document44 Filed06/19/09 Page7 of 7 1 On February 27, 2009, Plaintiff filed the present class action complaint alleging violations 2 of the federal Electronic Communications Privacy Act ("ECPA") and Computer Fraud and Abuse 3 Act ("CFAA"), as well as state law claims under the California Invasion of Privacy Act ("CIPA") 4 and California Computer Crime Law ("CCCL"), among other claims against Adzilla, Inc. (New 5 Media), Conducive Corp., Continental Visinet Broadband, Inc., and Core Communications, Inc. 6 d/b/a CoreTel Communications, Inc. 7 Defendant CoreTel filed a motion to dismiss for lack of personal jurisdiction under FED. R. 8 CIV. P. 12(b)(2). 9 10 For the following reasons, the Court denies CoreTel's motion to dismiss without prejudice. Plaintiff carries the burden of establishing jurisdiction. Farmers Ins. Exch. v. Portage La 11 Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). Plaintiff may not rest on the allegations 12 in her complaint; instead, she must produce specific facts demonstrating that the court possesses 13 jurisdiction over CoreTel. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 14 1284-85 (9th Cir. 1977). The court may consider evidence presented in affidavits and other 15 relevant materials to assist it in determining jurisdiction, and may order discovery on the 16 jurisdictional issue. Id.; Skidmore v. Syntex Labs, Inc., 529 F.2d 1244 (5th Cir. 1976). 17 Because Plaintiff must provide facts beyond those alleged in her complaint, Plaintiff must 18 be afforded the right to conduct limited jurisdictional discovery. Accordingly, the CoreTel motion 19 to dismiss is hereby dismissed without prejudice and Plaintiff is granted leave to conduct 20 jurisdictional discovery. 21 DATED: __________________ 22 23 24 25 26 27 28 [PROPOSED] ORDER DENYING DEFENDANT 1 Case No. 09-cv-879 MMC CORE COMMUNICATIONS, INC'S MOTION TO DISMISS By: ________________________________ Hon. Maxine M. Chesney United States District Court

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