NERDS ON CALL, INC. v. INTERNET BILLING SERVICES, INC. et al

Filing 16

BRIEF/MEMORANDUM in Support re 15 MOTION to Dismiss for Lack of Jurisdiction, filed by Defendants INTERNET BILLING SERVICES, INC., RYAN ELDRIDGE. (Attachments: # 1 Declaration of Ryan Eldridge - Submission of Signature Requirement at docket no. 18 )(Polak, Jonathan) Modified on 10/16/2007 (LSC).

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION NERDS ON CALL, INC., Plaintiff, vs. INTERNET BILLING SERVICES, INC., and RYAN ELDRIDGE, Individually, Defendants. Case No.: 1:07-cv-0535-DFH-TAB

DECLARATION OF RYAN ELDRIDGE I, Ryan Eldridge, do declare and state as follows: 1. I am the Vice-President and founder of NERDS ON CALL, INC., a California corporation erroneously sued herein as "INTERNET BILLING SERVICES, INC." (hereinafter, "Nerds/California"), and I have also been named individually as a defendant in this matter. If called upon as a witness to testify, I could and would testify to the following based on my own personal knowledge, unless otherwise specifically stated that it is based on information and belief. 2. Nerds/California is a California corporation founded in 2002 under the name "Internet Billing Services, Inc." Nerds/California officially changed its name with the California Secretary of State to "Nerds on Call, Inc." in December 2005. Nerds/California provides on-site customer service to computer and technology users in California. 3. Employees of Nerds/California visit customer business locations and homes to physically maintain and repair the customer's computer and technology equipment. 4. The service Nerds/California offers is necessarily limited by geography, normally requiring personnel to travel to and work at the customer location.

DECLARATION OF RYAN ELDRIDGE

5. Customers are able to order services by using a toll free telephone number or by accessing the Internet at www.callnerds.com and entering the customer's order information including the customer's address. 6. The website maintained by Nerds/California does not permit users outside California to order services. 7. The website order form requires the potential customer to select a telephone area code from a list of area codes, all of which are in California, and, regardless, Nerds/California would not accept a customer located outside its current service areas in California. 8. All of Nerds/California's physical offices are located in California and all of its employees and customers are likewise located in California. Nerds/California has no employees in Indiana and no offices in Indiana. 9. Nerds/California pays taxes in California. 10. Nerds/California has never entered into a contract with an Indiana customer or vendor. 11. Nerds/California has never entered into a contract in Indiana. 12. Nerds/California has never targeted any advertising to Indiana and cannot provide its services in Indiana because we have no employees and no facilities in Indiana. 13. Nerds/California is not qualified to do business in Indiana and has never attempted to do business in Indiana. 14. Nerds/California has no real property, personal property, bank accounts, or other assets located in Indiana.

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15. No employee, representative, or agent of Nerds/California has traveled to Indiana for the purpose of transacting, soliciting, or otherwise representing Nerds/California. 16. Other than this lawsuit, Nerds/California has never appeared in any court in Indiana or otherwise invoked the privileges, protections, and authority of Indiana's government. 17. Nerds/California maintains no address or telephone number in Indiana, has paid no taxes in Indiana, and has never applied for nor received any Indiana business licenses. 18. Based on my understanding of a surety, Nerds/California has never acted as a surety. 19. Nerds/California's business address and address for service of process registered with the California Secretary of State is 1733-B Oregon Street, Redding, California, 96001 ("Oregon Street Location") and is correctly listed on the California Secretary of State's website. 20. Nerds/California has been located at the Oregon Street Location since 2005. 21. Nerds/California has never had a principal place of business located at 215 Lake Boulevard, No. 494, Redding, California, 96003; this address is a private mailbox company. 22. Bullivant Houser Bailey, PC is not and never has been the registered agent of Nerds/California and does not have authority to accept service of a summons and complaint on behalf of Nerds/California. 23. Nerds/California has never been served with the Summons and Complaint at its principal place of business, registered with the California Secretary of State, at the Oregon Street Location. 3

24. I reside and work in Redding, California. 25. I am a California taxpayer. 26. I have never lived in, visited, or traveled to Indiana and have no friends or relatives in Indiana. 27. To my knowledge, my only contact with Indiana is that I believe my father was born in Indiana. 28. I have never directed any communication to Indiana, whether by telephone, letter, or other means, except in response to Plaintiff regarding the claims underlying this lawsuit. I did not initiate contact with Plaintiff or its representatives regarding the claims underlying this lawsuit but, rather, only responded to Plaintiff after Plaintiff made demands on Nerds/California and me. 29. I maintain no bank accounts, real property, personal property, or other assets in Indiana. 30. I hold no licenses of any type issued by the State of Indiana and have never sought any Indiana licenses. 31. I have no telephone numbers or addresses in Indiana and have never paid income taxes in Indiana. 32. Other than this lawsuit, I have never appeared in any court in Indiana or otherwise invoked the privileges, protections, and authority of Indiana's government. 33. I have never been personally served with the Summons and Complaint. 34. I examined the proof of service filed by Plaintiff and the receipt was signed by one of my newly hired employees, Erin Carrino, who on that date happened to be sitting closest to the front door when the mail arrived. 35. Ms. Carrino has been employed by Nerds/California since late July 2007.

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36. Ms. Carrino is a "scheduler," which is a clerical position. She is not an officer or director of Nerds/California. 37. I have never authorized Ms. Carrino to act on my behalf for any purpose. 38. Based on my understanding of a surety, I have never personally acted as a surety. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. EXECUTED on this ____ day of October, 2007, at Redding, California.

RYAN ELDRIDGE

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