Chang et al v. Virgin Mobile USA LLC et al

Filing 58

MOTION for Leave to File Sur-Reply to Defendant's Response to Plaintiffs' Motion in Opposition to Defendant's Motion to Dismiss filed by Susan Chang, Justin Ho-Wee Wong (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' MOTION FOR LEAVE TO FILE SUR-REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS Plaintiffs file this Motion for leave, respectfully requesting that the Court allow Plaintiffs to file a sur-reply to Defendant's Response to Plaintiffs' Motion in Opposition to Defendant's Motion to Dismiss. A sur-reply is necessary so that Plaintiffs may briefly respond to an argument raised by Defendant for the first time in its response motion: that two non-parties with whom Virgin worked on the "Are you with us or what?" campaign downloaded the photograph and entered the contract at issue in this case, thus rendering the contacts irrelevant in determining whether Virgin is subject to this Court's personal jurisdiction. Plaintiffs' sur-reply points out--with excerpts from David Cain's deposition testimony-- that because Virgin hired and controlled the nonparties' actions, they were Virgin's agents. As a result, Plaintiffs argue that the contacts of the nonparties are imputable to

1

Virgin, just as if it had entered the contract with Justin Wong and downloaded Alison Chang's picture itself. Because this argument was not previously raised in Virgin's Motion to Dismiss, Plaintiffs respectfully request that the Court allow it to file a sur-reply addressing the issue.

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

2

CERTIFICATE OF CONFERENCE I certify, pursuant to Local Rule 7.1, that I conferred with Lisa Meyerhoff, counsel for Defendant Virgin Mobile Pty, Ltd. on August 13, 2008, and that she objected to this motion. /s/ Ryan H. Zehl__________ Ryan H. Zehl

CERTIFICATE OF SERVICE I hereby certify that on the 14th day of August 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

3