Yellowone Investments v. Verizon Communications, Inc et al

Filing 16

MOTION for Leave to File Supplementation of the Record re Verizon Communications' Motion to Dismiss by Yellowone Investments. (Attachments: # 1 Supplementation of the Record# 2 Text of Proposed Order)(Friedland, Michael)

Case 2:06-cv-00475-TJW

Document 16

Filed 05/02/2007

Page 1 of 4

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.

MOTION FOR LEA VE TO SUPPLEMENT THE RECORD REGARDING VERION COMMUNICATIONS INC.' S MOTION TO DISMISS
Plaintiff Yellowone Investments ("Yellowone ) respectfully requests leave to supplement

the record regarding

the motion to dismiss (Docket 8) fied
). This

by Defendant V erizon

Communications Inc. ("Verizon Communications

Motion is supported by the declaration

of Sheila N. Swaroop, a proposed order,
provided as an attachment to this Motion.
In particular,

and the proposed supplemental materials that are

Yellowone wishes to provide the Court with fiings from

Verizon Services

Corp. , et al.

v.

Vonage Holdings Corp.

et. aI

, CV 06-CV-0682, a patent infringement action in
of Virginia. In that action,

the United States District Court for the Eastern District

Verizon

Communications successfully moved the Court for leave to amend to add itself as a plaintiff to

that case. In its Motion to include itself as a plaintiff in that lawsuit, Verizon Communications
stated that it owned and reported the profits from all of its operating subsidiaries, noted that both

parties to that action had treated the Verizon companies as one entity throughout the litigation

Dockets.Justia.co

);

..
Filed 05/02/2007 Page 2 of 4

Case 2:06-cv-00475-TJW

Document 16

and pointed out that both parties' damages analysis had treated Verizon as one economic entity.
See

Verizon s Memo. in Support

of Motion for Leave to

Amend Complaint to Add Verizon

Communications , Inc. as a Plaintiff at 8 (" (EJach side s damages analyses in this case have treated
Verizon as one economic entity-both

as to lost profits and a reasonable royalty, and even as to
Both damages experts,

the appropriateness of an injunction in this case.

for example, have used

Verizon Communications' financial disclosures in calculating the correct measure of damages in
this case.

); Reply Brief in Support ofVerizon s Motion for Leave to Amend Complaint to Add

Verizon Communications,

Inc. as a Plaintiff at 1 (referring

to "the

entire Verizon entity

profits

id

at 5 (arguing that "add(ingJ Verizon s parent company" would "align the pleadings
id at 8 fBJoth

with the financial and economic reality of this case.
treated the Verizon corporate family as a

parties ' damages experts
. utilizing the financial

single economic entity,

reporting of the parent company in their calculations. In fact, no other company in the Verizon
family does any reporting. Verizon' s SEC fiings, as well as other financial documents produced
in discovery, establish that Verizon Communications owns and reports the profits of its operating
subsidiaries. . . . " (emphasis in original));
id

at 11 ("Verizon s expert Professor Shavell, in laying

out the basis
business. "

for the injunction request, based his

analysis on harm to the entire Verizon

Counsel for Y ellowone did not learn of these fiings until April 24, 2007, when the fie

from the United States District Court for the Eastern District of Virginia became available for
copying by Yellowone '

s courier service.

Swaroop Decl.

Yellowone reviewed these
2007 to determine whether

materials and contacted Verizon Communications on April 26,
Verizon Communications would agree to a joint motion to supplement the record.

Case 2:06-cv-00475-TJW

Document 16

Filed 05/02/2007

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Counsel for Verizon Communications indicated on May 1 , 2007 that it would oppose this

Motion "because the materials from the V onage case are not material to the personal jurisdiction
issues pending before the Court. "
Swaroop Decl. , Ex. B.

Yellowone disagrees with Verizon Communications '

position and believes that there is

good cause to grant this motion. Specifically, Yellowone believes that the positions taken by
Verizon Communications in the action against V onage are relevant to the jurisdictional issue here

because they directly contradict

the assertions in the

Schapker declarations that Verizon

Communications is merely an owner of stock and Verizon Communications strictly observes all
corporate formalities.

Indeed ,

the fiings from the V

onage case demonstrate

that Verizon

Communications has represented that, in "financial and economic reality, " Verizon is a "single
economic entity.

Because the

fiings from the

V

onage matter are inconsistent with Verizon
to supplement the

Communications '
record. The

arguments here,

Yellowone believes there is good cause

information from the V onage case demonstrates that there are

additional disputes

over the jurisdictional facts with respect to Verizon Communications, and such disputes must be
resolved in Yellowone
s favor.

Alpine View Co. ,

Ltd

v.

Atlas Copco AB 20S F. 3d 208 , 21S (S

Cir. 2000). Accordingly, Yellowone respectfully requests that the Court grant this Motion and
consider the supplemental

materials provided herewith, and deny Verizon Communications

Motion to Dismiss. Respectfully Submitted
Date: May 2, 2007
By:

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

Paul A. Stewart Michael K. Friedland

Case 2:06-cv-00475-TJW

Document 16

Filed 05/02/2007

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Sheila N. Swaroop

(Pro Hac Vice)

KNOBBE , MARTENS , OLSON & BEAR, LLP 2040 Main Street, Fourteenth Floor Irvine , CA 92614
Telephone: [phone] Facsimile: (949) 760- 8502

pstewart kmob. com 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

CERTIFICATE OF CONFERENCE
The undersigned hereby certifies that counsel for Plaintiff Yellowone Investments has conferred with counsel for Defendant Verizon Communications, Inc. in a good faith attempt to resolve the matter without court intervention. However, Defendant opposes this motion.
Isl Michael K. Friedland Michael K. Friedland

CERTIFICA TE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have MOTION FOR LEAVE TO SUPPLEMENT THE RECORD REGARDING VERION COMMUNICATIONS INC.' MOTION TO via the Court' s CM/CF system per Local Rule CV-5(a)(3) on
consented to electronic service are being served with a copy of this DISMISS

May 2, 2007.
Isl Michael K. Friedland Michael K. Friedland
3713135 050107