eBay Inc. v. Digital Point Solutions, Inc. et al

Filing 47

Reply Memorandum filed byTodd Dunning. (Attachments: # 1 Affidavit proof of service)(Foreman, Stewart) (Filed on 11/26/2008)

eBay Inc. v. Digital Point Solutions, Inc. et al

Doc. 4

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FREELAND COOPER & FOREMAN LLP

Stewart H. Foreman (CSB #61149) Daniel T. Bernhard (CSB #104229) FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] Attorneys for Defendants Todd Dunning and Dunning Enterprises, Inc. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

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150 Spear Street, Suite 1800 San Francisco, California 94105

EBAY, INC., Plaint iff, v. DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISES, INC., BRIAN DUNNING, BRIANDUNNING.COM, AND DOES 1-20, Defendants.

CASE NO.: CV-08-4052 JF REPLY BY DEFENDANTS TODD DUNNING AND DUNNING ENTERPRISE, INC. TO EBAY'S OBJECTION TO REQUEST FOR JUDICIAL NOTICE Date: Time: Place: December 12, 2008 9:00 a.m. Courtroom 3, 5th Floor

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Defendants Todd Dunning and Dunning Enterprise, Inc. (collectively "DEI") adopt and join in the arguments and authorities provided to the Reply By Defendants Thunderwood Holdings, Inc., Brian Dunning and BrianDunning.Com to eBay's Objection to Request for Judicial Notice. Therefore, DEI does not restate these arguments here. The complaint by Commission Junction, Inc. filed in Orange County also names Todd Dunning and Dunning Enterprise, Inc. as defendants, and claims that these defendants are parties to the Publisher Service Agreement ("PSA"). In addition, the Court should take judicial notice of eBay's Terms and Conditions which are attached as Exhibits 1-3 to the Declaration of Stewart H. Foreman In Support of the Motion to Dismiss in ruling on the venue issue. eBay's Opposition to the Motion to Dismiss did not object to these documents, nor can eBay properly 1
REPLY BY DEFENDANTS TODD DUNNING AND DUNNING ENTERPRISE, INC. TO EBAY'S OBJECTION TO REQUEST FOR JUDICIAL NOTICE Case No. CV-08-4052 (JF)
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Dockets.Justia.com

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FREELAND COOPER & FOREMAN LLP

object since the documents come from eBay. These Terms and Conditions are incorporated in the PSA. For these reasons, DEI respectfully requests that the Court take judicial notice of the referenced documents for purposes of the venue issue under F. R. Civ. Proc. 12(b)(3) raised by the motion to dismiss. Dated: November 26, 2008 FREELAND COOPER & FOREMAN LLP

By:

___________/s/__________________ STEWART H. FOREMAN Attorneys for Defendants Todd Dunning and Dunning Enterprises, Inc.

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150 Spear Street, Suite 1800 San Francisco, California 94105

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REPLY BY DEFENDANTS TODD DUNNING AND DUNNING ENTERPRISE, INC. TO EBAY'S OBJECTION TO REQUEST FOR JUDICIAL NOTICE Case No. CV-08-4052 (JF)
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