Netquote Inc. v. Byrd

Filing 83

Unopposed MOTION for Leave to File Second Amended Counterclaim by Counter Claimant, Inc.. (Attachments: # 1 Proposed Document Second Amended Counterclaim# 2 Exhibit A to Proposed Counterclaim# 3 Exhibit B of Proposed Counterclaim# 4 Exhibit C (redacted) to Proposed Counterclaim# 5 Exhibit D to Proposed Counterclaim# 6 Affidavit LR 7.1 Certificate)(Isenberg, Ryan)

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Netquote Inc. v. Byrd Doc. 83 Case 1:07-cv-00630-DME-MEH Document 83 Filed 09/21/2007 Page 1 of 3 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 and, and MOSTCHOICE.COM, Inc., a Georgia corporation Defendants. UNOPPOSED MOTION FOR LEAVE TO FILE SECOND AMENDED COUNTERCLAIM Comes now, Defendant, Inc. and herein files this its Unopposed Motion for Leave to Allow Mostchoice to File its Second Amended Counterclaim and shows this Court the following: I. Standard for Amending Complaint FRCP 15(a) provides that a party may amend its complaint by leave of court, and that leave shall be freely given when justice requires. Leave may only be denied where the Court finds "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment." Foman v. Davis, 371 U.S. 178, 182, (1962) as quoted in Spencer v. Wal-Mart Stores, Inc., 203 Fed. Appx. 193, 195 (10th Cir. 2006). Page 1 of 3 Case 1:07-cv-00630-DME-MEH Document 83 Filed 09/21/2007 Page 2 of 3 II. Proposed Affirmative Amendments Mostchoice filed amended counterclaims alleging that Netquote engaged in click fraud and, through agents, defamed Mostchoice. Netquote has moved to dismiss the claim for click fraud primarily based upon the failure to plead with specificity. In its currently pending counterclaim for click fraud, Mostchoice identified approximately 1,400 IP addresses that have engaged in click fraud as alleged and defined in its counterclaim. Mostchoice has now identified and alleged in its current proposed amended counterclaim a specific factual basis that Netquote engaged in click fraud at least 52 times, and has incorporated exhibits identifying the dates and digital address of each alleged fraudulent and illegitimate click through. III. Proposed Negative Amendments Mostchoice seeks to amend its counterclaims for defamation and tortious interference to remove claims associated with any person or entity, other than Bankrate. Previously, Mostchoice sought to recover based upon claims involving other individuals that it no longer seeks to pursue. IV. Plaintiff's Position on this Motion Plaintiff does not oppose MostChoice's motion for leave to amend. Plaintiff reserves the right to move to dismiss pursuant to Rule 12 and/or to move for summary judgment on the amended counterclaims. Conclusion Netquote moves to amend its complaint to re-state its claims for click fraud with additional specificity, and otherwise re-state its other claims only with reference to Bankrate. A copy of the proposed amended complaint is attached hereto as Exhibit "A." Page 2 of 3 Case 1:07-cv-00630-DME-MEH Document 83 Filed 09/21/2007 Page 3 of 3 WHEREFORE, Mostchoice prays that this Court Grant this Motion and Grant Leave to File its Second Amended Counterclaim, and for such other and further relief deemed necessary and just by this Court. Dated this 21ST day of September, 2007. 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: CERTIFICATE OF SERVICE I hereby certify that on this 21ST day of September, 2007, I served the foregoing Motion for Leave to Amend Counterclaim by electronic delivery, as an attachment to an email, to the following counsel of record: David W. Stark Daniel D. Williams FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, Colorado 80203 s/ Ryan Isenberg Page 3 of 3

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