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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Filed 03/19/2007
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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.
Case 2:06-cv-00475-TJW
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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: (949) 760-0404/ 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: (903) 232- 1892 / 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
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