Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ING BANK, fsb (d/b/a ING DIRECT), and ING DIRECT BANCORP, Plaintiffs, v. EVERBANK, EVERBANK FINANACIAL CORP., and STONE & WARD, INC. (d/b/a STONE WARD) Defendants. ____________________________________ ) ) ) ) ) Civil Action No. 07-cv-154-GMS ) ) ) ) ) ) ) ) )

PLAINTIFFS' REPLY BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO ENLARGE BRIEFING SCHEDULE TO PERMIT JURISDICTIONAL DISCOVERY

Francis DiGiovanni (#3189) Stanley C. Macel, III (#492) CONNOLLY BOVE LODGE & HUTZ LLP 1007 North Orange Street Wilmington, Delaware 19899-2207 (302) 658-9141 Of Counsel: Jennifer Fraser CONNOLLY BOVE LODGE & HUTZ LLP 1990 M Street, N.W., Suite 800 Washington, D.C. 20036 (202) 331-7111 Dated: June 7, 2006

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TABLE OF CONTENTS I. Summary of Argument .................................................................................................1 II. Argument ......................................................................................................................1 A. ING DIRECT's Claim of Personal Jurisdiction Over Stone Ward Is Meritorious, Not "Clearly Frivolous" ....................................1 B. ING DIRECT's Request for Jurisdictional Discovery and Enlargement of the Briefing Schedule Is Not Unduly Burdensome.......................5 III. Conclusion ....................................................................................................................8

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TABLE OF AUTHORITIES Cases Page(s)

ADP Investor Communication Services v. In House Attorney Services, 390 F. Supp. 2d 212 (E.D.N.Y. 2005) ................................................................................7 Atlanta Gas Light Co. v. Semaphore Adver., Inc., 747 F. Supp. 715 (S.D. Ga. 1990)....................................................................................6, 7 Bragg v. Linden Research, Inc. __F. Supp. 2d __, 2007 WL 1549013, *5 (E.D. Pa. May 30, 2007)..................................5 Compagnie Des Bauxites de Guinee v. L'Union Atlantique, S.A., 723 F.R.D. 357 (3d Cir. 1983) ............................................................................................1 Courtroom Television Network v. Focus Media Inc., 264 A.2d 361 (N.Y. App. Div. 1991) .................................................................................7 Fishel v. BASF Group, 175 F.R.D. 525 (S.D. Iowa 1997) ....................................................................................5, 7 Gehling v. St. George's Sch. of Med., Ltd., 773 F.2d 539 (3d Cir., 1985)...............................................................................................4 Giangola v. Walt Disney World Co., 753 F. Supp. 148, 155-56 (D.N.J. 1990)..........................................................................3, 4 Hansen v. Neumuller GmbH, 163 F.R.D. 471 (D. Del. 1995) ........................................................................................1, 8 Massachusetts Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 107 F.3d 1026 (3d Cir. 1997)..............................................................................................1 Mesalic v. Fiberfloat Corp., 897 F2d 696, 700 n. 10 (3d Cir. 1990)................................................................................4 Padcom, Inc. v. Netmotion Wireless, Inc., 2004 WL 1192641 (D. Del. May 24, 2004)........................................................................6 Parker v. Learn the Skills, Corp., 2006 WL 759693 (E.D. Pa. Mar. 23, 2006)........................................................................2 Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass' n, 819 F.2d 434 (3d Cir. 1987)................................................................................................7

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Rich v. KIS Cal., Inc., 121 F.R.D. 254 (M.D. N.C. 1988) ...................................................................................6, 7 Telecordia Techs., Inc. v. Alcatel, 2005 WL 1268061 (D. Del. May 27, 2005)........................................................................2 Ticket Solutions Inc. v. Banks, 2002 WL 989462 (D. Kan. May 6, 2002)...........................................................................6 In re Vitamins Antitrust Litig., 120 F. Supp. 2d 45 (D.D.C. 2000) ......................................................................................7 Wellness Publishing v. Barefoot 128 Fed. Appx. 266, 270 (3rd. Cir. 2005).........................................................................3, 4

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I. SUMMARY OF ARGUMENT Plaintiffs ING Bank, fsb, and ING DIRECT Bancorp (collectively, "ING DIRECT"), urge that their Motion to Enlarge Briefing Schedule to Permit Jurisdictional Discovery be granted. Plaintiffs can and will show that defendant Stone & Ward, Inc. ("Stone Ward") has contacts with Delaware such the Court has personal jurisdiction over Stone Ward. Plaintiffs' claim is not clearly frivolous, and granting this motion for limited jurisdictional discovery will not unduly burden Stone Ward. II. ARGUMENT A. ING DIRECT's Claim of Personal Jurisdiction Over Stone Ward Is Meritorious, Not "Clearly Frivolous"

Stone Ward, in its Answering Brief, fails to overcome the presumption in favor of granting jurisdictional discovery that the Third Circuit and this Court give to plaintiffs. "Where the plaintiff's claim is not clearly frivolous, the district court should ordinarily allow discovery on jurisdiction in order to aid the plaintiff in discharging that burden." Compagnie Des Bauxites de Guinee v. L'Union Atlantique, S.A., 723 F.2d 357, 362 (3d Cir. 1983); see also Hansen v. Neumuller GmbH, 163 F.R.D. 471, 474 (D. Del. 1995); Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n, 107 F.3d 1026 (3d Cir. 1997) (holding the general rule is that jurisdictional discovery should be allowed unless the plaintiff's claim is "clearly frivolous"). Contrary to Stone Ward's allegations, ING DIRECT is able to allege with particularity contacts between Stone Ward and Delaware sufficient to allow jurisdictional discovery to proceed. ING DIRECT has alleged more than the existence of Stone Ward's national clients; ING DIRECT has in fact identified specific contacts between Stone

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Ward and Delaware, including Delaware clients. The specific and general jurisdictional contacts are identified in ING DIRECT's Opening Brief at pages 6-9. Unlike the case at hand, the rare cases where the court has denied jurisdictional discovery on the basis that the plaintiff's claim is "clearly frivolous" share the fact that the plaintiff did not identify any credible threshold minimum contacts. See Parker v. Learn the Skills, Corp., 2006 WL 759693, at *4 (E.D. Pa. Mar. 23, 2006) (the Eastern District of Pennsylvania denied a request for jurisdictional discovery where the plaintiff alleged jurisdiction over a defendant based on "the bare allegation that [the defendant] has `contacts' with Pennsylvania") (Ex. A); Telecordia Techs., Inc. v. Alcatel, 2005 WL 1268061, at *9 (D. Del. May 27, 2005) (the Court denied a request for jurisdictional discovery where the plaintiff (1) failed to demonstrate any competent evidence of the court's jurisdiction over the defendant and (2) failed to assert that the court could exercise personal jurisdiction over the defendant based on the general jurisdiction subsection of the Delaware long-arm statute) (Ex. B). Such is not the case here. Before this Court can properly decide whether sufficient jurisdiction over Stone Ward exists, it should permit jurisdictional discovery. Because personal jurisdiction is a threshold issue, courts have set a low bar to allow jurisdictional discovery--the "clearly frivolous" standard. ING DIRECT has met and exceeded this low threshold by

identifying known contacts between Stone Ward and Delaware sufficient to establish both specific and general jurisdiction. See Opening Brief at pages 6-9. Contrary to Stone Ward's assertion that ING DIRECT's jurisdictional allegations are "unsupported (Answering Br. at 5), ING DIRECT has set forth concrete evidence of jurisdiction that sufficiently meets the threshold of allowing jurisdictional discovery.

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Stone Ward tries to downplay the effect of its internet advertising by arguing that "the level of interactivity of a website is pertinent solely to the assertion of personal jurisdiction over the owner of the website, not Stone Ward." Answering Br. at 5. Stone Ward does not support this proposition; indeed, it is unsupportable. Stone Ward creates websites that specifically target consumers in Delaware. This is in many ways more of a jurisdictional connection to the website creator than the website owner. For example, it is Stone Ward that creates the "bait" that lures Delaware residents into the interactive and transactional web-based contacts with Stone Ward's customers (such as EverBank). Stone Ward creates this digital bait with the intent to lure residents from all states, including Delaware, to the EverBank website. The advertisement recited in the

Complaint in this case did exactly that: lured consumers (some almost certainly from Delaware) to the advertisement, and then interactively directed the consumer to EverBank in Florida (and away from the ING DIRECT, of Delaware). The Third Circuit has held that advertisements that induce action (such as the advertisement recited in the Complain in this case) are not "passive," but are interactive and thus result in personal jurisdiction over the creator: [T]he advertisement in this case induced viewers to establish direct contact with [the defendant] by calling its toll-free phone number to place orders. This inducement destroys any semblance of the passive advertising addressed in Giangola [v. Walt Disney World Co., 753 F. Supp. 148, 155-56 (D.N.J. 1990)], which expressly distinguished advertisements in the form of direct mail solicitations. For purposes of jurisdictional analysis, an infomercial broadcast that generates telephone customers is the equivalent of an interactive web-site through which a defendant purposefully directs its commercial efforts towards residents of a forum state. Wellness Publishing v. Barefoot, 128 Fed. Appx. 266, 270 (3rd Cir. 2005) (referenced as non-precedential) (Ex. C). In Barefoot, a Lanham Act case, the Third Circuit found

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jurisdiction over a group of defendants that created infomercials (among other things) for another group of defendants. Id. at 271. This is directly analogous to the instant case, where Stone Ward created interactive banner advertisements for EverBank. Very recently (May 30, 2007), the Eastern District of Pennsylvania relied on the Third Circuit's decision in Barefoot to find personal jurisdiction over the person who creates a marketing campaign: Barefoot's analysis applies to the facts of this case. First, Bragg has provided evidence that Rosedale helped orchestrate a campaign at the national level to induce persons, including Bragg, to purchase virtual land and property on Second Life. As part of the national campaign, Bragg made representations that were distributed nationally, including in Pennsylvania. Moreover, this case does not involve "injuries unrelated to the broadcast of the advertisement in the forum state," as was the case in Gehling1 or Giangola. Cf. Barefoot, 128 Fed. Appx. at 270. Rather, Rosedale's representations constitute part of the alleged fraudulent and deceptive conduct at the heart of Bragg's claims in this case. Second, like the role of the infomericals in Barefoot, Rosedale's personal role was to "bait the hook" for potential customers to make more interactive contact with Linden by visiting Second Life's website. Rosedale's activity was designed to generate additional traffic inside Second Life. He was the hawker sitting outside Second Life's circus tent, singing the marvels of what was contained inside to entice customers to enter. Once inside Second Life, participants could view virtual property, read additional materials about purchasing virtual property, interact with other avatars who owned virtual property, and, ultimately, purchase virtual property themselves. Significantly, participants could even interact with Rosedale's avatar on Second Life during town hall meetings that he held on the topic of virtual property. Viewed in context, Rosedale's marketing efforts in this case are more "interactive" rather than "passive." C.f. Barefoot, 128 Fed. App' at x 270 (emphasizing that "interactive" contacts are more significant for jurisdictional purposes than "passive" contacts). Thus, they provide more than just "tangential" support for specific personal jurisdiction. See Mesalic v. Fiberfloat Corp., 897 F.2d 696, 700 n.10 (3d Cir. 1990) (noting that a defendant's marketing strategy, including advertising in national

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Gehling v. St. George's Sch. of Med., Ltd., 773 F.2d 539 (3d Cir. 1985). 4

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publications distributed in the forum, provided only "tangential" support for specific personal jurisdiction). Bragg v. Linden Research, Inc., __ F. Supp. 2d __, 2007 WL 1549013, *5 (E.D. Pa. May 30, 2007) (Ex. D). The pertinence of this case is readily apparent, and directly refutes Stone Ward's arguments that the Court cannot maintain jurisdiction over it. Moreover, contrary to Stone Ward's assertion, this Court's exercise of jurisdiction over Stone Ward does not contravene the principles of Due Process. Through the

contacts ING DIRECT has already identified, ING DIRECT has shown that Stone Ward purposefully availed itself of Delaware's laws and has continuous and systematic contacts with Delaware. It is not unforeseeable that Stone Ward would be hauled into a Delaware Court. See supra and Opening Brief at 6-9. In addition to ING DIRECT's current evidence, it is important for ING DIRECT to receive jurisdictional discovery to learn the full extent and nature of Stone Ward's contacts with the State of Delaware. B. ING DIRECT's Request for Jurisdictional Discovery and Enlargement of the Briefing Schedule is Not Unduly Burdensome

Stone Ward alleges that allowing ING DIRECT to proceed with jurisdictional discovery would "unduly burden Stone Ward and delay resolution of Stone Ward's motion to dismiss without justification." Answering Brief at 5. Because the proposed requests are narrowly tailored to issues pertaining to personal jurisdiction and can be answered by Stone Ward with minimal effort, Stone Ward will not be unduly burdened. See Fishel v. BASF Group, 175 F.R.D. 525, 528 (S.D. Iowa 1997) ("The Court will require responses to the extent the outstanding discovery is reasonably tailored to the jurisdictional issues and may be answered with reasonable effort."). ING DIRECT's proposed document requests are limited to personal jurisdiction issues. Included among

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these issues are those enumerated in ING DIRECT's Brief to Enlarge, which focus on Stone Ward's contacts with Delaware with regard to their advertising, marketing, and promotional campaigns. Opening Brief at 10. The information ING DIRECT seeks is relevant to assessing the extent of Stone Ward's contacts with Delaware. See Padcom, Inc. v. Netmotion Wireless, Inc., 2004 WL 1192641 (D. Del. May 24, 2004) (considering a mix of internet and non-internet factors when determining whether it could exercise personal jurisdiction.) (Ex. E hereto); Ticket Solutions Inc. v. Banks, 2002 WL 989462 (D. Kan. May 6, 2002) (finding personal jurisdiction over an internet domain name holder when he solicited business from Kansas residents over the internet.) (Ex. F hereto); Atlanta Gas Light Co. v. Semaphore Adver., Inc., 747 F. Supp. 715 (S.D. Ga. 1990) (holding that an advertising firm's placement of advertisements on Georgia television stations was controlling in the court's decision to exercise personal jurisdiction). Stone Ward inaccurately claims that "[w]ere jurisdictional discovery granted, the information ING seeks would not serve to establish personal jurisdiction over Stone Ward . . . ." Answering Brief at 5. ING DIRECT has already identified facts sufficient to warrant jurisdiction under the Delaware long-arm statute and to satisfy constitutional due process requirements. See supra and Opening Br. at 6-9. The exercise of personal jurisdiction over Stone Ward is a threshold question as to ING DIRECT's ability to pursue claims against Stone Ward. Jurisdictional discovery will entitle ING DIRECT to present the Court with a complete picture of Stone Ward's contacts with Delaware. See Rich v. KIS Cal., Inc., 121 F.R.D. 254, 257 (M.D.N.C. 1988) (holding that jurisdictional discovery is necessary before a plaintiff could respond to defendants' motion to dismiss).

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Stone Ward attempts to distinguish cases where courts have maintained personal jurisdiction over advertising agencies. Answering Brief at 4. These cases were initially cited by ING DIRECT in its Motion to Enlarge to illustrate the importance of the fact that Stone Ward's contacts with Delaware are "central to the conduct of its business." See Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 438 (3d Cir. 1987). The central part of Stone Ward's business is the advertising materials it creates for its clients. ING DIRECT seeks, through jurisdictional discovery, further evidence to enable it to fully and fairly establish that this Court may exercise personal jurisdiction over Stone Ward.2 Where requests are "highly relevant and crucial to the resolution of the jurisdictional questions pending before this Court," a claim of undue burden fails. In re Vitamins Antitrust Litig., 120 F. Supp. 2d 45, 53 (D.D.C. 2000); see also Rich, 121 F.R.D. at 258 (holding that because the plaintiffs narrowed their discovery requests to ten interrogatories dealing strictly with the issue of personal jurisdiction, the information sought was not intrusive). Stone Ward would not suffer if jurisdictional discovery were permitted. Rather, the limited areas of inquiry sought in ING DIRECT's proposed

discovery requests will be able to be "answered with reasonable effort." Fishel, 175 F.R.D. at 528. ING DIRECT's proposed discovery--limited to documents requests and a Stone Ward misses the point in its discussion of ADP Investor Communication Services v. In House Attorney Services, 390 F. Supp. 2d 212 (E.D.N.Y. 2005), Courtroom Television Network v. Focus Media Inc., 264 A.2d 351 (N.Y. App. Div. 1991), and Atlanta Gas Light Co. v. Semaphore Advertising, Inc., 747 F. Supp. 715 (S.D. Ga. 1990). The issue presently before this court is not whether the Court can exercise personal jurisdiction. Rather, the issue is whether jurisdictional discovery is permissible. These three cases cited by Stone Ward discuss whether dismissal is proper due to a lack of personal jurisdiction. That ultimate question will arise after ING DIRECT has had an opportunity to take jurisdictional discovery of Stone Ward, and the jurisdictional issue can be properly briefed. 7
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single deposition--amount to an insignificant burden compared to the prejudice ING DIRECT would suffer by not discovering more information about Stone Ward's contacts with Delaware. Under Federal Rule of Civil Procedure 26, liberal discovery is allowed of any relevant non-privileged facts, including "where the plaintiff seeks discovery to establish personal jurisdiction." Hansen, 163 F.R.D. at 473. This Court has stated that "[t]he rationale for this rule is that the plaintiff may be unable to ascertain the extent of the defendant's contacts with the forum state . . . unless some discovery is permitted." Id. at 473-74. To date, ING DIRECT has provided competent evidence of Stone Ward's

contacts with Delaware, and thus is not engaged in a fishing expedition. As this Court has stated, "[w]hen the fish is identified, and the question is whether it is in the pond, we know no reason to deny a plaintiff the customary license." Hansen, 163 F.R.D. at 474. III. CONCLUSION For the foregoing reasons, and those set forth in the Opening Brief, ING DIRECT's Motion to Enlarge Briefing Schedule to Permit Jurisdictional Discovery should be granted. Dated: June 7, 2007 /s/ Francis DiGiovanni Francis DiGiovanni (#3189) Stanley C. Macel, III (#492) CONNOLLY BOVE LODGE & HUTZ LLP 1007 North Orange Street Wilmington, Delaware 19899-2207 (302) 658-9141 OF COUNSEL: Jennifer Fraser CONNOLLY BOVE LODGE & HUTZ LLP 1990 M Street, N.W., Suite 800 Washington, D.C. 20036 (202) 331-7111 8

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CERTIFICATE OF SERVICE I hereby certify that on this 7th day of June, 2007, the attached PLAINTIFFS' REPLY BRIEF IN RESPONSE TO DEFENDANTS' ANSWERING BRIEF OPPOSING PLAINTIFF'S MOTION TO ENLARGE BRIEFING SCHEDULE TO PERMIT JURISDICTIONAL DISCOVERY was served upon the below-named counsel of record at the address via hand delivery and e-mail: Julia Heaney Morris, Nichols, Arsht & Tunnell LLP 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899-1347 Richard D. Kirk Ashley B. Stitzer The Bayard Firm 222 Delaware Avenue, Suite 900 P.O. Box 25130 Wilmington, DE 19899-5130

/s/ Francis DiGiovanni Francis DiGiovanni (#3189)

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CERTIFICATE OF SERVICE I hereby certify that on this 7th day of June, 2007, the attached PLAINTIFFS' REPLY BRIEF IN RESPONSE TO DEFENDANTS' ANSWERING BRIEF OPPOSING PLAINTIFF'S MOTION TO ENLARGE BRIEFING SCHEDULE TO PERMIT JURISDICTIONAL DISCOVERY was served upon the below-named counsel of record at the address via hand delivery and e-mail: Julia Heaney Morris, Nichols, Arsht & Tunnell LLP 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899-1347 Richard D. Kirk Ashley B. Stitzer The Bayard Firm 222 Delaware Avenue, Suite 900 P.O. Box 25130 Wilmington, DE 19899-5130

/s/ Francis DiGiovanni Francis DiGiovanni (#3189)

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