Chang et al v. Virgin Mobile USA LLC et al

Filing 46

Plaintiffs' MOTION for Extension of Time to File Response/Reply re: 27 MOTION to Dismiss filed by Susan Chang, Justin Ho-Wee Wong (Attachments: # 1 Affidavit) (Zehl, Ryan)

UNITED STATES DISTRICT COURT NORTHER DISTRICT OF TEXAS DALLAS DIVISION SUSAN CHANG, as Next Friend of Alison Chang, a minor, And Justin Ho-Wee Wong Plaintiffs, v. Virgin Mobile Pty Ltd., Defendant. § § § § § § § § § § § § §

CAUSE NO. 3:07-CV-01767

PLAINTIFFS' THIRD MOTION TO EXTEND DEADLINE TO RESPOND TO DEFENDANT'S MOTION TO DISMISS Plaintiffs file this Motion for Continuance, respectfully requesting that the Court extend the deadline to file their response to Defendant's Motion to Dismiss for a period of 45 days until July 24, 2008. Plaintiffs seek this additional extension so that they can determine first, whether to add Optus Telecommunications Pty. Ltd as a party to this lawsuit, and second, so that they can obtain and review records from Yahoo!, Inc., concerning the location of the servers that store Justin Wong's photographs, particularly the photograph of Alison Chang. As to the former, Defendants agreed, after conferencing with Plaintiffs and reviewing a copy of Plaintiffs' draft Motion to Compel, to amend a number of its responses to Plaintiffs' Interrogatories and one of its responses to Plaintiffs' Request for Admission by April 18, 2008. Plaintiffs received Defendant's responses to the

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interrogatories, but are still waiting on its response to Plaintiffs' Request for Admission. Nonetheless, the information that Plaintiffs obtained from Defendant's amended interrogatory responses, together with the testimony that was elicited during Plaintiffs' deposition of Defendant's corporate representatives on April 22, 2008, suggests that Virgin and Optus Telecommunications Pty. Ltd. operate as one entity and can, therefore, be fused together for jurisdictional purposes. Plaintiffs request this extension so that they can further evaluate this connection through additional discovery, if necessary, and determine whether to add Optus as a party to this lawsuit. Finally, on May 7, 2008, Plaintiffs requested that the Northern District of California subpoena Yahoo!, Inc. to produce documents identifying the city and state where the servers that store Justin Wong's Flickr photographs are located. Once served, Yahoo will provide Justin Wong with at least fifteen days to challenge the subpoena through a motion to quash. While we our certain that our client will not do so, this process--according to a letter we received from Shannon Chance Baylor, Yahoo!'s Senior Compliance Paralegal--delays Yahoo's response by twenty days, making it unlikely that Plaintiffs would have sufficient time to review and incorporate the information into their response to Defendant's motion to dismiss prior to the June 9, 2008 deadline. For these reasons, Plaintiffs respectfully request that the Court extend their deadline to respond to Defendant's motion to dismiss for a period of 45 days until July 24, 2008.

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Respectfully submitted, /s/ Ryan H. Zehl____________________ Ryan H. Zehl State Bar No. 24047166 Fitts Zehl, LLP 5065 Westheimer Rd., Suite 700 Houston, Texas 77056 [phone] (telephone) [phone] (facsimile) [e-mail] Mark W. Romney State Bar No. 17225750 Shannon, Gracey, Ratliff & Miller, LLP 500 N. Akard Street, Suite 2500 Dallas, Texas 75201 [phone] (telephone) [phone] (facsimile) [e-mail] ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I hereby certify that on the 7 day of May 2008, I electronically filed the foregoing document with the Clerk of the Court for the U.S. District Court, Northern District of Texas, using the Court's electronic case filing system. The system sent a "Notice of Electronic Filing" to the following attorneys of record, all of whom have consented to accept this Notice as service of the document: Lisa H. Meyerhoff Baker & McKenzie LLP 2001 Ross Ave. Dallas, Texas 75201

/s/ Ryan H. Zehl______________________ Ryan H. Zehl

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CERTIFICATE OF CONFERENCE I certify, pursuant to Local Rule 7.1, that I conferred with Myall Hawkins, counsel for Defendant Virgin Mobile Pty, Ltd. on May 7, 2008 and he opposed Plaintiff's Motion to Extend the Deadline to respond to Virgin's Motion to Dismiss. /s/ Ryan H. Zehl__________ Ryan H. Zehl

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