Netquote Inc. v. Byrd
Netquote Inc. v. Byrd
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 07-cv-00630-DME-MEH NETQUOTE INC, a Colorado corporation, Plaint iff, v. BRANDON BYRD, an internet user making use of the IP Addresses 22.214.171.124 and 126.96.36.199, and Defendants. UNOPPOSED MOTION FOR LEAVE TO AMEND COMPLAINT Plaint iff NetQuote Inc (" etQuote", through its counsel with Faegre & Benson LLP, in N ) light of the removal of this civil action from state court to federal court and in light of new informat ion recently discovered by NetQuote, in this unopposed motion pursuant to Fed. R. Civ. P. 15(a), respectfully requests leave to amend its prior state-court complaint. In support of this Motion, NetQuote states as follows: 1. Pursuant to D. Colo. L. Civ. R. 7.1(A), undersigned counsel certifies that the
parties have conferred by email and telephone concerning this motion, including by providing an advance copy of NetQuote' proposed Third Amended Complaint to counsel for Defendant s Brandon Byrd (" yrd". NetQuote is authorized to state that Byrd does not oppose the relief B ) requested herein.
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On February 16, 2007, NetQuote filed its Second Amended Complaint in the
Colorado District Court for the City & County of Denver. (Doc. #1-11.) This amended complaint for the first time named Byrd as the defendant in this action. 3. Fo llowing service of process on Byrd, Byrd removed this action to this Court on
the basis of diversity jurisdiction. (Doc. #1.) Byrd has now responded to the Second Amended Complaint with a motion to dismiss on the grounds of lack of personal jurisdiction.1 (Doc. #8.) 4. In the interim since NetQuote' filing of the Second Amended Complaint in state s
court, NetQuote has uncovered information that changes the complexion of this action and requires a revision of the pleadings. This new information is reflected in the proposed Third Amended Complaint and includes the following: · · Byrd was employed by a firm named MostChoice.com, Inc. (" ostCho ice". M ) MostChoice is a direct competitor of NetQuote in the field of insurance sales lead generation, i.e., the service of providing sales leads to insurance brokers and others in the insurance industry. · Byrd has admitted that in addition to the conduct alleged in the Second Amended Complaint with respect to his submissions to the www.netquote.com website, Byrd also made submissions to NetQuote' s separat e www.localinsurance.com website. · NetQuote now has come to believe that Byrd' conduct fits within a larger s pattern of disparagement and false advertising by MostChoice in which MostChoice has unfairly competed with NetQuote by claiming that
Byrd' motion also seeks dismissal of the fraud claim in the case on the grounds of insufficient s particularity in the pleading of that claim. 2
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NetQuote' sales leads include bad or dummy information, all the while s knowing that it was MostChoice' own agent, in the person of Byrd, who had s inveigled the false information into NetQuote' system. s 5. In light of the foregoing, NetQuote has prepared a Third Amended Complaint. A
copy of this proposed Third Amended Complaint is lodged with this motion as Exhibit A. 6. In summary, NetQuote' proposed Third Amended Complaint makes the s
fo llo wing revisions to the pleadings: · · Adds MostChoice as a defendant; Clarifies the basis of the Court' exercise of in personam jurisdiction over s both defendants; · Adds factual allegations with respect to MostChoice, MostChoice' s invo lvement in Byrd' activities, and the full scope of Byrd' activities; and, s s · Adds three new causes of action to the case, all against only MostChoice: commo n law unfair competition, false advertising under the Lanham Act, and deceptive trade practices under the Colorado Consumer Protection Act. 7. In this case, leave to amend NetQuote' complaint in the manner proposed should s
be granted because Fed. R. Civ. P. 15(a) requires that leave must be freely granted " hen justice w so requires." See Fed. R. Civ. P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182 (1962); Polin v. Dun & Bradstreet, Inc., 511 F.2d 875, 877 (10th Cir. 1975). 8. In addition, no prejudice will arise from the proposed amendment. No discovery
has yet occurred; no pretrial disclosures have yet been exchanged, and indeed, the parties have not even met to conduct their initial case-planning conference under Rule 26(f).
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WHEREFORE, the Court should grant leave to NetQuote to amend its pleadings and should further direct that the proposed Third Amended Complaint as shown in attached Exhibit A be accepted for filing. A proposed order also is attached.
Respect fully submitted this 13th day of April, 2007. By s/ Christopher P. Beall Chr ist opher P. Beall FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, Colorado 80203 Tel: (303) 607-3500 / Fax: (303) 607-3600 E-mail: email@example.com Attorneys for Plaintiff NetQuote Inc
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CERTIFICATE OF SERVICE I hereby certify that on this 13th day of April, 2007, I electronically filed the foregoing MOTION FOR LEAVE TO AMEND COMPLAINT with the Clerk of the Court using the ECF/CM electronic filing system, which will send an electronic copy of this filing to the fo llo wing counsel of record: Teresa L. Ashmore, Esq. Rachel L. Eichenbaum, Esq. HOLME ROBERTS & OWENS LLP 1700 Lincoln Street, Suite 4100 Denver, Colorado 80203 Tracy.Ashmore@hro.co m Rachel.Eichenbaum@hro.com Ryan L. Isenberg, Esq. ISENBERG & HEWITT, P.C. 7000 Peachtree Dunwoody Road, Bldg 15, Suite 100 At lanta, Georgia 30328 firstname.lastname@example.org
/s Tracy Reed
Unopposed MOTION to Amend/Correct/Modify 2 Complaint, 3 Amended Complaint, 4 Amended Complaint by Plaintiff Netquote Inc.. (Attachments: # 1
Proposed Order (PDF Only) # 2
Exhibit A - Proposed Third Amended Complaint# 3
Exhibit A to Proposed Third Amended Complaint# 4
Exhibit B to Proposed Third Amended Complaint# 5
Exhibit C to Proposed Third Amended Complaint# 6
Exhibit D to Proposed Third Amended Complaint# 7
Exhibit E to Proposed Third Amended Complaint# 8
Exhibit F to Proposed Third Amended Complaint)(Beall, Christopher)
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