Netquote Inc. v. Byrd

Filing 171

MOTION to Obtain Relief Pursuant to FRCP 56(f) by Defendant Mostchoice.com, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Affidavit Ryan Isenberg, # 4 Proposed Order (PDF Only) Proposed Order)(Isenberg, Ryan) Modified on 1/8/2008 to correct filer (sss, ).

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Netquote Inc. v. Byrd Doc. 171 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 07-cv-00630-DME-MEH NETQUOTE INC, a Colorado corporation, Plaintiff, v. BRANDON BYRD, an internet user making use of the IP Addresses 64.136.27.226 and 64.136.26.227, and MOSTCHOICE.COM, Inc., a Georgia corporation Defendants. ______________________________________________________________________________ MOSTCHOICE.COM, INC.'S MOTION FOR RELIEF UNDER FRCP 56(f) ______________________________________________________________________________ COMES NOW, Mostchoice.com, Inc. and herein files this Motion for Relief under FRCP 56(f) and shows this Court the following: 1. Plaintiff Netquote has filed a Motion for Summary Judgment as to Defendant Mostchoice.com, Inc.'s Counterclaim for "click fraud." (Dkt. #158). 2. In support of its motion, Netquote contends that Mostchoice has produced minimal evidence.1 3. Mostchoice analyzed its "click" data and identified thousands of AOL proxy IP addresses 1 Mostchoice only "identifies 25 clicks in 2004-2005 and 27 clicks in 2007." (Mot. at 9). Page 1 of 3 Dockets.Justia.com that it has concluded are likely to have been Netquote employees (See Exhibit "A"). 4. Mostchoice has sought and received permission to subpoena AOL to obtain the necessary data to determine whether these fraudulent clicks are in fact (Dkt. #124; 168). 5. Mostchoice has issued the subpoena which has been received by AOL (See Exhibit "B"). 6. Mostchoice seeks relief under FRCP 56(f) such that the Court will not rule on Plaintiff Nequote's Motion for Summary Judgment until such time as Mostchoice has had a fair opportunity to obtain and analyze the data provided in response to the subpoena. 7. Mostchoice proposes that it will file a notice with the Court upon receipt of the data from AOL, and that Mostchoice will have fifteen (15) days to analyze the data and if appropriate supplement its response on this particular issue. WHEREFORE, Mostchoice.com, Inc. prays that this Motion be granted and for such other and further relief deemed necessary and just by this Court. Dated this 7th day of January, 2008. s/ Ryan Isenberg Ryan L. Isenberg, Esq. Isenberg & Hewitt, P.C. 7000 Peachtree Dunwoody Road Building 15, Suite 100 Atlanta, Georgia 30328 Telephone: 770-351-4400 Facsimile: 770-828-0100 (Fax) Email: ryan@isenberg-hewitt.com Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of January, 2008, I served the foregoing Motion for Relief under FRCP 56 by electronic delivery, as an attachment to an email, to the following counsel of record: David W. Stark Heather Carson Perkins Daniel D. Williams Theresa T. Tate FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, Colorado 80203 dwilliams@faegre.com s/ Ryan Isenberg Page 3 of 3

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