Yellowone Investments v. Verizon Communications, Inc et al

Filing 15

SUR-REPLY to Reply to Response to Motion re 8 MOTION to Dismiss VERIZON COMMUNICATION INC. filed by Yellowone Investments. (Friedland, Michael)

Case 2:06-cv-00475-TJW

Document 15

Filed 03/19/2007

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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.

YELLOWONE INVESTMENTS SUR-REPLY TO VERION COMMUNICATIONS INC' S REPLY RE ITS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Dockets.Justia.co

Case 2:06-cv-00475-TJW

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Yellowone adequately plead the facts suffcient to

establish personal

jurisdiction over

Verizon Communications in this state and has supported these allegations with reliable evidence
linking Verizon Communications to the

ww. superpages. com

web site that is at issue

here.

Yellowone has also submitted additional evidence supporting the assertion of jurisdiction over

Verizon Communications.

While Verizon Communications may dispute some of this evidence, such disputes must be resolved in Yellowone ' s favor, and the Court should deny this Motion. However, if the Court is

inclined to consider Verizon

Communications ' controverted evidence,

Yellowone respectfully

requests that it be permitted to engage in jurisdictional discovery relating to this Motion.

I. EVIDENCE FROM THE WHOIS WEB SITE IS UNDISPUTED AND RELIABLE
Verizon Communications does not deny

that publicly available information from
the
Technical

WHOIS. net

identifies

Verizon

Communications

Contact

for

the
link

ww. superpages. com web site.

This uncontroverted evidence, which demonstrates a

between Verizon Communications

and the web site accused of infringement, supports

Yellowone s assertion of personal jurisdiction over Verizon Communications.
Verizon Communications does not contest the accuracy or the

authenticity of the

information from the WHOIS. net web site.

Instead,

Verizon Communications merely suggests

that the WHOIS evidence is inadmissible hearsay. However, other courts have regularly relied

upon this evidence as the source for information on domain name registrants. As explained in
Register. Com
v.

Verio, Inc. 356 F. 3d 393 , 395 (2d Cir. 2004), the Internet domain name system

is administered by the Internet Corporation for Assigned Names and Numbers ("ICAN"), a non-

profit public benefit corporation established by agencies

of the United States government.

ICAN in turn appoints registrars with the authority to issue domain

names.

Id

Applicants who

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apply for such domain names
information - that the

must submit contact information - referred to as WHOIS

registrants are required to update and make available to the public.

Other courts have cited such WHOIS information as the source for information on domain name
registrants.

See, e. g., McMann

v.

Doe 460 F. Supp. 2d 2S9, 262 (D. Mass. 2006).

Unable to dispute the accuracy of the WHOIS information or raise a legitimate evidentiary
objection , Verizon Communications resorts to speculation. It cannot deny that the WHOIS. net

data identifies Verizon Communications as the Technical Contact for the

ww. superpages. com

web site, so it makes the conclusory assertion that it must be a different entity. However, neither

the reply brief nor Ms. Schapker s declaration identify who this "other" Verizon Communications
entity could possibly be.

Similarly, while Verizon Communications argues that other entities are

licensed to use the

mark "Verizon "

it identifies no other entity licensed to use "Verizon

Communications.
for the

Its inability to identify the other entity that operates as the Technical Contact

ww. superpages. com

web site eviscerates

its assertion that the

evidence submitted by

Yellowone somehow refers to another entity.
II.

ACTIVITIES IN TEXAS MUST BE RESOLVED IN FAVOR OF

THE DISPUTED FACTS REGARDING VERION COMMUNICATIONS' YELLOW ONE

Verizon Communications also argues for dismissal by disputing some of the evidence

presented by Yellowone. For this Motion, such disputes must be resolved in Yellowone s favor.
See Alpine View Co. ,
Ltd v.

Atlas Copco AB 20S F. 3d 208 , 21S (S th Cir. 2000).
not maintain a

For example,

Verizon Communications initially proclaimed that it does

place of business in Texas, makes no goods in Texas, provides no services in Texas, and directs

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none of its activities at residents of Texas. (Feb. 9, 2007 Schapker Decl. (Docket 8) at

10.

Yellowone disputed those facts by submitting both the WHOIS information (discussed above) and
a press release from

ww.verizon. com referencing an employee ofVerizon Communications (Bill

Kula) with a cell phone number in the Dallas metropolitan area. While Verizon Communications

attempts to challenge the evidence regarding Mr. Kula in its reply, that challenge does not support
dismissal , but rather demonstrates that the parties have a dispute.
Verizon Communications ' opening papers additionally proclaimed that it " observes all

corporate formalities" and remains separate and distinct from other Verizon entities.

(Id

at

Now, after Yellowone has shown that the entity "Verizon Communications" appears in domain
registration data for the

ww. superpages. com web site and in a press release from the
web site, Verizon Communications
has now backed away from

ww. verizon. com

its position

regarding corporate formalities and now suggests "anyone of a number of operating companies

could be referred to on the WHOIS website. (March 8, 2007 Suppl. Schapker Decl. (Docket 122) at 4; see also

Reply at 3 ("the umbrella term "Verizon Communications" can refer to any of a

number of the communications companies in which Verizon Communications Inc. holds stock"
Verizon Communications '

change in position regarding its

adherence to corporate

formalities

suggests that it is not separate and distinct from other entities and provides additional disputed
evidence that should be resolved in Yellowone' s favor. Accordingly, the reference to "Verizon
Communications "
as the Technical Contact for
the

ww. superpages. com web site provides

additional evidence to support the assertion of jurisdiction here.

1 Notably, in its Reply, Verizon Communications continues

to argue that it sells no

products in Texas, but is now silent on whether it provides services within this state. Docket 12- 1 at 1.

See e.

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III. VERION COMMUNICATIONS' OTHER ARGUMENTS ARE INSUFFICIENT
Verizon Communications has not met its burden on this motion, and its continual citations
to past decisions and voluntary dismissals are irrelevant to the issue of jurisdiction here.

It Has Not Shown That Exercise Of Jurisdiction Would Be Unfair Or Unreasonable
In view of Yellowone' s jurisdictional evidence, Verizon Communications has the burden

to show that the exercise of jurisdiction would be constitutionally
Aarotech Labs. , Inc.

unreasonable.

3D Sys. , Inc.

160 F. 3d 1373 ,

1378- 1379 (Fed. Cir. 1998).

Because Verizon

Communications has failed to come forth with any evidence to meet this burden, its request for
dismissal is deficient.

Prior Decisions And Involuntarv Dismissals Are Irrelevant To This Analvsis
Verizon Communications ' continual citation to prior decisions is irrelevant

because

specific jurisdiction is decided on a case-by-case basis that depends upon the events giving rise to
the dispute.

3D Sys.

160 F. 3d at 1378

(explaining that the analysis of

specific jurisdiction

includes an examination of whether the claim arises out of or relates to the defendant's activities
in the forum state).

The parties agree that none
specific allegations

of

the decisions cited by Verizon
infringement regarding the

Communications involve the

of patent

ww. superpages. com web site that are at issue here. Accordingly, none of those prior decisions
govern the issue of whether this Court has jurisdiction over Verizon Communications here.
The voluntary dismissals cited by Verizon Communications are also irrelevant because

they contain no substantive analysis of the jurisdictional question that this Court must decide.
IV.

IF THE COURT CONSIDERS VERION COMMUNICATIONS' EVIDENCE. IT SHOULD PERMIT JURISDICTIONAL DISCOVERY
Yellowone s pleadings and supporting evidence demonstrate a suffcient basis
for the

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exerCIse of

personal jurisdiction over Verizon

Communications, and any dispute over
s favor.

jurisdictional facts should be resolved in Yellowone

Alpine View 205 F. 3d

at 215. If the

Court is inclined to consider dismissal of Verizon Communications,

Yellowone

respectfully

requests the opportunity to conduct jurisdictional discovery by deposing
conducting a
3 O(b )( 6)

Ms. Schapker and

deposition of Verizon Communications

with regard to the

ww. superpages. com web site.

v. CONCLUSION
Because the evidence demonstrates that Verizon Communications is the Technical
Contact for the

ww. superpages. com
and

web site,

Yellowone has met

its burden to establish
Motion. In

personal jurisdiction,

this Court should

deny Verizon Communications '

the

alternative , this Court should permit jurisdictional discovery into the issue

of Verizon

Communications ' involvement with the
Date: March 19,

ww. superpages. com web site.
Respectfully Submitted
Isl Michael K. Friedland Michael K. Friedland Michael K. Friedland (Pro Hac Vice) KNOBBE , MARTENS , OLSON & BEAR LLP 2040 Main Street, Fourteenth Floor Irvine , CA 92614 Telephone: [phone]/ Facsimile: (949) 760- 8502 mfriedland kmob. com
By:

2007

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

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

Attorneys for Plaintiff YELLOWONE INVESTMENTS

Case 2:06-cv-00475-TJW

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CERTIFICA TE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have electronic service are being served with a copy of this YELLOW ONE INVESTMENTS SUR-REPLY TO VERION COMMUNICATIONS INC' S REPLY RE
consented to
ITS MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

via the Court'

CM/CF system per Local Rule CV-5(a)(3) on March 19, 2007.
Isl Michael K. Friedland Michael K. Friedland
3545372 031607