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)

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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 ); .. 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 Page 3 of 4 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 Page 4 of 4 Sheila N. Swaroop (Pro Hac Vice) KNOBBE , MARTENS , OLSON & BEAR, LLP 2040 Main Street, Fourteenth Floor Irvine , CA 92614 Telephone: (949) 760-0404 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: (903) 232- 1892 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

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