Datatreasury Corporation v. Wells Fargo & Company et al

Filing 213

MOTION for Discovery (to Authorize Jurisdictional Discovery Against First Citizen Defendants) by Datatreasury Corporation. (Attachments: #1 Text of Proposed Order)(Bruster, Anthony) Modified on 6/26/2006 (sm, ).

Datatreasury Corporation v. Wells Fargo & Company et al

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION D A T A T R E A S U R Y C O R P O R A T IO N P LAIN TIFF v s. W E L LS F A R G O & C O M P A N Y , e t a l D EF E N D A N TS § § § No . 2: 06 cv 72 § § J U R Y T R IA L D E M A N D E D §

PLAINTIFF'S MOTI ON TO AUTHORIZE JURISDICTIONAL DISCOVERY AGAINST DEFENDANT FIRST CITIZENS BANCSHARES, INC.

Pursuant to Federal Rule of Civil Procedure 26 (a) & (d) and Local Rule CV -26(d), Plaintiff, DataTreasury Corporation ("DataTreasury") , files this Motion to Authorize Jurisdictional Discovery against Defendant First Citizens Bancshares, Inc. ("FCB") and states: 1. DataTreasury filed its original Complaint in this patent infringement action on

February 27, 2006. Before any defendant answered, Plaintiff filed a First Amended Complaint on March 28, 2006. 2. On June 1, 2006 , FCB filed a Motion to Dismiss Pursuant to Fed. R. Civ. P.

12(b)(2). In the motion, FCB contends that this Court lacks personal jurisdiction over it and thus the claims against it should be dismissed. 3. DataTreasury has filed a Response to FCB's Motion to Dismiss. In its Response,

DataTreasury outlines the basis for this Court's jurisdiction over FCB, and discusses in detail the numerous troubling inconsistencies between the sworn st atement of Defendant's executive filed

Dockets.Justia.com

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in this case and the representations these Defendants make elsewhere to the general public and the federal government. 4. However, in the event that the Court believes additional evidence on these issues

is necessary, DataTreasury requests that the Court enter an Order authorizing it to conduct specific jurisdictional discovery regarding FCB. DataTreasury anticipates that this discovery would entail the following issues: (A) document production surrounding FCB's operation of office locations of itself and its subsidiaries in Texas ; (B) performance of infringing activities within the State of Texas; (C) depositions of the persons with the most knowled ge of various sworn statements made pursuant to the Sarbanes-Oxley Act by FCB executives in their most recent 10-K; and (D) document productions surrounding the activities of the FCB executives that hold identical positions with its subsidiary entities, including Board of Directors' meeting minutes, internal memos, emails and correspondence files, and a multitude of other documents surrounding these executives' activities. Other discovery may be necessary as well, but these items are certainly relevant to FCB's claims that it does not conduct business in Texas and within this District. 5. The requested discovery and disclosure s are relevant to the jurisdictional defenses

raised by FCB. In addition, the discovery and disclosures will provide DataTreasury with additional evidence to include in an Amended Complaint and to submit in amended opposition to Defendant's Motion to Dismiss. Thus, the Court should authorize and order the requested discovery and disclosures. 6. Pursuant to Federal Rule of Civil Proce dure 26(a) & (d) and Local Rule CV -26(d)

and for those reasons stated herein, DataTreasury respectfully requests that the Court grant this Motion. Specifically, DataTreasury requests: (1) that it be allowed to propound interrogatories,

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requests for production, and requests for admissions to First Citizens dealing specifically with the jurisdictional issues; (2) that these discovery requests not count against the limited number of discovery requests available to Plaintiff under the Federal Rules of Civil Procedure and this Court's local rules; (3) that it be allowed to depose each of the FCB directors discussed in DataTreasury's Response to Defendants' Motion; (4) that it be allowed to depose Rule 30(b)(6) representatives with the most knowledge of the jurisdictional issues raised by FCB; (5) that the Defendant be ordered to produce all documents and information relevant to their jurisdictional defenses within 30 days; and (6) that DataTreasury be allowed to file an amended Response to FCB's Motion and an Amended Complaint after receiving this discovery. 7. Before filing this Motion, Counsel for DataTreasury conferred in good faith with

counsel for FCB with regard to the requests in this motion. Unfortunately, the parties cannot resolve this dispute without Court intervention. WHEREFORE, DataTreasury prays that the Co urt grant its Motion and enter an order authorizing the requested discovery and mandating the requested disclosures. Respectfully Submitted,

EDWARD L. HOHN
Texas Bar No. 09813240 [e-mail] D. NEIL SMITH Texas Bar No. 00797450 [e-mail] NIX , PATTERSON & ROACH, LLP

205 Linda Drive Daingerfield, Texas 75638 Telephone: [phone] Facsimile: 903.645.4415

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C. CARY PATTERSON
Texas Bar No. 15587000 ANTHONY K. BRUSTER Texas Bar No. 24036280 [e-mail] BRADY PADDOCK Texas Bar No. 00791394 [e-mail] R. BENJAMIN KING Texas Bar No. 24048592 [e-mail] NIX , PATTERSON & ROACH, LLP

2900 St. Michael Drive, Suite 500 Texarkana, Texas 75503 Telephone: [phone] Facsimile: 903.223.8520 JOE KENDALL
Texas Bar No. 11260700 [e-mail] KARL RUPP Texas Bar No. 24035243 [e-mail] PROVOST UMPHREY, LLP

3232 McKinney Avenue, Suite 700 Dallas, Texas 75204 Telephone: [phone] Facsimile: 214.744.3015 ROD COOPER
Texas Bar No. 90001628 [e-mail] THE COOPER LAW FIRM

545 E. John Carpenter Fwy., Suite 1460 Irving, Texas 75062 Telephone: [phone] Facsimile: 972.692.5445 ERIC M. ALBRITTON
Texas Bar No. 00790215 [e-mail] ALBRITTON LAW F IRM

P. O. Box 2649 Longview, Texas 75606 Telephone: [phone] Facsimile: 903.758.7397

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T. JOHN WARD, JR .
Texas Bar No. 00794818 [e-mail] LAW O FFICES OF T. JOHN WARD, JR.

PC

P. O. Box 1231 Longview, Texas 75606 Telephone: [phone] Facsimile: 903.757-2323 ATTORNEYS FOR PLAINTIFF DATATREASURY CORPORATION

CERTIFICATE OF CONFERENCE I hereby certify that Plaintiff's counsel has conferred with Defendant's counsel regarding the above Motion, and they indicated that they do oppose the filing of such Motion.

ANTHONY K. BRUSTER

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served on all counsel of record through the Court's electronic mail this 23rd day of June, 2006.

ANTHONY K. BRUSTER

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