Yellowone Investments v. Verizon Communications, Inc et al

Filing 11

RESPONSE in Opposition re 8 MOTION to Dismiss VERIZON COMMUNICATION INC. filed by Yellowone Investments. (Attachments: # 1 Affidavit Friedland Declaration# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6a# 8 Exhibit 6b)(Friedland, Michael)

Case 2:06-cv-00475-TJW

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Filed 02/26/2007

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

YELLOWONE INVESTMENTS, an English Wales corporation Plaintiff

Case No. 2-06-CV-475 TJW Hon. T. John Ward

VERIZON COMMICATIONS, INC. , a
Delaware corporation, IDEARC INORMATION SERVICES, INC. a Delaware corporation
Defendants.

YELLOW ONE

INVESTMENTS OPPOSITION TO VERION COMMUNICATIONS

INC' S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Plaintiff Yellowone Investments ("Yellowone ) hereby opposes the motion to dismiss fied
by Defendant Verizon Communications

Inc. ("Verizon

Communications ). This opposition

supported by the declaration of Michael K. Friedland fied herewith.

I. INTRODUCTION
This action concerns the infringement of Yellowone' s patent by a web site. The infringing
web site is

ww. superpages. com . In its Motion, Verizon Communications forcefully asserts that
that it be

it has no contacts with Texas and requests
Communications '

dismissed from this case.

Verizon

assertions, however, are contradicted by

publicly available records. These

records identify the

technical contact for the

ww. superpages. com web site as Verizon

Communications. Moreover, these records identify the address for the Verizon Communications

technical contact as Irving, Texas. In addition, a press release on the

ww.verizon. com web site

identifies media contacts for Verizon Communications as being located in Texas. In view of this

Dockets.Justia.co

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evidence, Verizon Communications certainly has suffcient contacts

with the State of

Texas to

warrant the exercise of specific jurisdiction, and this Court should deny Verizon Communications

motion.

II. BACKGROUND
This is

a patent infringement action brought by Yellowone against Verizon
Inc. ("Idearc

Communications and Idearc Information Services,
Patent No. 5

The asserted patent,

U. S.

930 474 ("the ' 474 patent")

includes technology for a software interface that

organizes information based upon the geographical

area of the resources for which the

information is desired. Verizon Communications ' and Idearc s infringing activities include the use

and provision of world wide web sites that use Yellowone' s patented technology. These web
sites include the City Pages feature of the

ww. superpages. com
available

web site. Complaint

10.

According

publicly

records

the

technical

contact"

for
of

the
this

ww. superpages. com web site has been Verizon Communications.
information is the Whois. net web site.
The registration data for the

The source

ww. superpages. com web site identifies the Technical
Ex.

Contact and Zone Contact for this site as Verizon Communications. Friedland Decl,
Furthermore
Communications.

this listing identifies a business

address in

Irving, Texas for

Verizon

Verizon Communications is also listed as the Technical Contact and Zone

Contact for the ww.verizonwireless. com web site, also with a business address in Irving, Texas.
Friedland Decl. ,

Ex. 2.

1 WHOIS services provide public access to data on registered internet domain names
including contact information for registered domain name owners. The Whois. net web site has a lookup tool that allows users to obtain registration data for web sites, including the "technical Friedland Decl. , Ex. 4. contact" for each web site. See

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Additional evidence on the

ww.verizon. com web site also

supports the

assertion of

jurisdiction over Verizon Communications in this forum. In
website dated October 30, 2006 describes
store in Dallas,

particular,

a press release from this

the opening of the nation

s first Verizon Experience

Texas and identifies two individuals from Verizon Communications as media
One of these media contacts is identified
972 area

contacts for the press release. Friedland Decl. , Ex. 3.
as "Bill

Kula, Verizon Communications (Texas)" followed by a phone number with a

code , the Dallas metropolitan area.

Yellowone fied this action on November 15 ,
February 9 ,

2006. Idearc answered the complaint on

2007, while Verizon Communications

has moved to dismiss for lack of personal

jurisdiction.

III. LEGAL STANDARD
The issue of personal jurisdiction in a patent action is a question of law that is analyzed
under Federal Circuit law.

3D Sys. , Inc.

v.

Aarotech Labs. ,

Inc. 160 F. 3d 1373 , 1377-78

(Fed.

Cir. 1998). The Federal Circuit has explained that personal jurisdiction over an out-of-state
defendant is proper if the

forum state s long arm statute permits the assertion of jurisdiction
Id.

without violating federal due process.

at 1376- 1377. The reach of Texas ' long-arm statute is

coextensive with the federal constitutional limits on due process, which "permits the exercise of

personal jurisdiction over a nonresident

defendant when (1) that

defendant has purposefully

availed himself of the benefits and protections of the forum state by establishing "minimum

contacts " with the forum state; and (2) the exercise of jurisdiction over that defendant does not

offend "traditional notions of fair play and substantial justice.
190 F. 3d 333 , 336 (5

Mink

v.

AAAA Dev. LLC

Cir. 1999) (citations omitted).

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In order to defeat a

motion to dismiss for lack of personal jurisdiction, Yellowone need
showing of jurisdiction. United States v.

initially make only a

prima facie

Ziegler Bolt and Parts
the pleadings and

Co.

111 F. 3d 878 , 880 (Fed.

Cir. 1997).

Moreover , when considering

affdavits , the Court must accept Yellowone ' s uncontroverted allegations as true and must resolve
all disputes over jurisdictional facts in favor of Yellowone.
See Alpine View Co. ,
Ltd v.

Atlas

Copco AB 205 F. 3d 208 215 (5 Cir. 2000).
IV.

THERE IS AMPLE EVIDENCE TO ASSERT SPECIFIC JURISDICTION OVER

VERION COMMUNICATIONS
Verizon Communications '
the three-prong
involvement with the

ww. superpages. com web site satisfies

minimum contacts test for specific jurisdiction set forth by the Federal Circuit.

This analysis considers (1) whether Verizon Communications purposefully directed its activities at

residents of Texas; (2) whether the claim arises out of or relates to those activities,
whether assertion of personal jurisdiction is reasonable and fair.

and (3)

3D Systems 160 F. 3 d at 13 78.

Verizon Communications '

involvement in the

ww. superpages. com

web site meets the

first prong of the Federal Circuit's test. By maintaining a location in Irving, Texas that operates
as the technical contact for the

ww. superpages. com

web site, Verizon Communications has

purposefully directed its activities towards residents of Texas and availed itself of the benefits and
protections of doing business within this state.
Verizon Communications' role as the technical contact for the

ww. superpages. com web
activities in

site also satisfies the second prong of this test, because Verizon Communications '
Texas directly relate to the claim
of patent infringement that is at

issue here. In particular

Yellowone contends that Verizon Communications and Idearc are infringing the ' 474 patent by
using and providing web sites that are covered by the claims of the ' 474 patent. One such site is

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the "City Pages" feature on the

ww. superpages. com

web site.

See

Complaint at ~ 10. Thus
activities in

Yellowone

s claim of infringement

is directly related to Verizon Communications'

Texas with respect to the

ww. superpages. com web site.

The third prong of the Federal Circuit's test is whether jurisdiction would be fair and

reasonable. For this prong, it is Verizon Communications who has the burden to prove that the
exercise of jurisdiction would be
constitutionally unreasonable.

160 F. 3d at 1379- 80.

In

view of Verizon Communications '

Texas activities , which directly relate to the claim of patent

infringement , the exercise of jurisdiction is fair and reasonable here. Litigating in this state would

not be inconvenient for Verizon Communications, a large corporation who has promoted itself as

a Dow 30 company with reported 2006 earnings of $88. 1 billon, an operating income of $13.4
billon in 2006, and 250 000 employees. Friedland Decl, Ex. 5; Ex. 6 at 4. Furthemore, Verizon
Communications maintains a business location in the state for technical aspects of at least one of
the infringing web sites.

Ex. 1.

Litigating in this forum also furthers Yellowone' s interest in having a prompt and effcient
resolution of this judicial dispute. Idearc, the other co-defendant, has already fied an answer and

is proceeding forward with this action in Texas. If Yellowone proceeded to litigate against Idearc
in this forum but then had to pursue Verizon Communications in another forum, that would result

in ineffcient, piecemeal litigation.

There is no other forum that has a significant interest in adjudicating this action. Because

this is a patent case,
forum state.

Federal Circuit law will apply to the substantive issues,

regardless of the

Thus , there is no compellng reason that would require litigation against Verizon

Communications in a different forum.

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In view of these facts, the exercise of jurisdiction over Verizon Communications is fair and
reasonable. See Burger King v.

Rudzewicz 471 U.S. 462, 476 (1985) Gurisdiction is proper if the

defendant purposefully established minimum contacts within the state and the assertion of
jurisdiction comports with fair play and substantial justice).
V.

GENERAL JURISDICTION MAY ALSO EXIST OVER VERION COMMUNICA TIONS
to

In addition

establishing specific jurisdiction,

the records thus far uncovered by

Yellowone also suggest that general jurisdiction over Verizon Communications in Texas may also
be proper. Again,

Verizon Communications has maintained a business location in Irving, Texas

serving as a technical contact for the

ww. superpages. com web site, as well as other Verizon
The

web sites, such as

ww.verizonwireless. com .

existence of this offce suggests that Verizon

Communications has had general and systematic contacts within the state of Texas. In addition

at least one press release

on the

ww.verizon. com web site specifically states that Verizon

Communications has media contacts, including Bill Kula in Texas, who is listed with a phone
number that has an area code corresponding to the Dallas metropolitan area. Friedland Decl, Ex.
3. Thus,
this state.

this press release indicates that Verizon Communications does have employees within

This initial evidence, which Yellowone has obtained from public records prior to any
discovery, directly contradicts Verizon Communications' argument regarding its lack of contacts
in Texas and supports the assertion of general jurisdiction over Verizon Communications.

II / II / II /

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VI. THE CASES CITED BY VERION COMMUNICATIONS ARE IRRLEVANT
While Verizon Communications cites prior court decisions in which it or its predecessor
has been dismissed for lack of personal jurisdiction, those decisions are irrelevant to the current
litigation. In particular,

none of these decisions reference the specific evidence of jurisdiction that
Phonetel Comm '
, Inc. v.

Yellowone has set forth here. The decision in

Us. Robotics Corp. ,

et

at. No. 00- CV- 1750 , 2001 US. Dist. LEXIS 7233 (N. D.

Tex. June 1 ,

2001), did not reference

the Irving offce or the role

of Verizon Communications as a technical contact for the
here. Newman v.

ww. superpages. com web site that has been accused of infringement
125 F. Supp. 2d 717 (D. Md. 2000), and Bell Atlantic Corp. v.

Motorola

Associated Data Consultants

Inc. 714 So. 2d 523 (Fla. Dist. Ct. App. 1998), are also inapposite because they both involved an

analysis of jurisdiction based upon control of a subsidiary, which is not at issue here. In addition
in

Newman there was no allegation of direct activities by the defendant in the forum state, while
short, none of these opinions referred to a

Yellowone has presented such allegations here. In

specific allegation of patent infringement committed by Verizon Communications arising from its
activities with regard to the

ww. superpages. com web site.

Verizon Communications also cites prior notices of dismissal fied by other plaintiffs in this
Court. See

Motion, Exs. B ,

C. These are completely irrelevant. There is no indication from
or the bases for

those dismissals why Verizon Communications was named in those actions
jurisdiction.

The parties in those prior actions may not have had the allegations

of specific

jurisdiction that Yellowone presented here or may have decided strategically to pursue defendants
other than Verizon Communications.
prejudice and are not binding on the

Moreover ,

those notices of

dismissal were without

parties. The fact that other plaintiffs chose to agree to a

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dismissal without prejudice has nothing to do with the determination of whether this Court has
jurisdiction over Verizon Communications here.

VII. CONCLUSION
In view of Verizon Communications '

Texas activities directly relating to the accused

ww. superpages. com web site, the exercise of jurisdiction over Verizon Communications meets
the requirements for due process, and Yellowone respectfully requests that the Court deny

Verizon Communications ' motion.
Date: February 26

2007

Respectfully Submitted

By:

Isl Michael K. Friedland Michael K. Friedland
(Pro Hac Vice)

Michael K. Friedland

KNOBBE , MARTENS , OLSON & BEAR, LLP 2040 Main Street, Fourteenth Floor Irvine , CA 92614
Telephone: [phone]

Facsimile: (949) 760- 8502
mfriedland kmob. com

Melvin R. Wilcox (Lead Attorney) State Bar No. 21454800 SMEAD , ANERSON & DUN LLP
2110 Horseshoe Lane

O. Box 3343 Longview , TX 75606
Telephone: [phone] Facsimile: (903) 232- 1881 mrw smeadlaw. com

Attorneys for Plaintiff YELLOWONE INVESTMENTS

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CERTIFICA TE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this YELLOW ONE INVESTMENTS OPPOSITION TO VERION COMMUNICATIONS INC' S MOTION

TO DISMISS FOR LACK OF

PERSONAL JURISDICTION

via the Court' s

CM/CF

system per Local Rule CV-5(a)(3) on February 26 2007.
Isl Michael K. Friedland Michael K. Friedland
3416958 021207