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I Case 1 :07-cv-00822—GI\/IS Document 23 Filed 04/1 1/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HYPERCUBE, LLC and KMC DATA, LLC )
rnimirrs, i
v. l C.A. No. 07—822-GMS
4 QWEST COMMUNICATIONS g JURY TRIAL DEMANDED
CORPORATION, )
Defendant. g .
i PLAINTIFFS’ WITHDRAWAL OF
I MOTION FOR TEMPORARY STAY; AND WITHDRAWAL OF PLAINTIFFS’
T OPPOSITION TO DEFENDANT’S MOTION FOR STAY PURSUANT TO THE
COLORADO RI VER ABSTENTTON DOCTRINE
Plaintiffs HyperCube, LLC and KMC Data, LLC (together “Plaintiffs”), by and through
counsel, hereby withdraw their pending Motion for Temporary Stay and their Opposition to
Defendant’s Motion to Stay Federal Proceedings Pending Resolution of Parallel State Court
Action. Plaintiffs do so in light of recent rulings by a Colorado state triai court in a related
O litigation that render the above noted pieadings moot.
On February l5, 2008, Plaintiffs moved this Court to stay the instant proceedings
_ pending a decision by a Colorado state court in a related litigation. Plaintiffs had requested that
the Colorado court dismiss several of Qvvst’s federal claims and affirmative defenses. On
g March 28, 2008,1 the Colorado state court denied Plaintiffs’ motions. Accordingly, since the
p condition upon which Plaintiffs’ motion to temporarily stay these proceedings was based has
O occurred, Plaintiffs’ request for a temporary stay is now moot. Accordingly, Plaintiffs withdraw
their motion for temporary stay.
ir Order, Qwest Communications Corporation v. HyperCube, LLC and KMC Dam, LLQ
Civil Action No. 06CV6404 (March 28, 2008).

A Case 1:07-cv-00822—G|\/IS Document 23 Filed O4/11/2008 Page 2 of 4
- Furthermore, Plaintiffs had opposed Qwest’s motion for Colorado River abstentiong in
the instant proceeding, in part, because such relief was premature while the Plaintiffs’ motions to
- dismiss remained pending before the Colorado state court. Qwest’s motion for stay is now ripe.
ln light of the Colorado state court’s decision to exercise jurisdiction over the federal claims
before it, Plaintiffs withdraw their opposition to Qwest’s motion for stay. Plaintiffs reserve the
right, however, to contest any stay based on Colorado River should, during the course ofthe
Colorado litigation, circumstances change such that the Colorado proceeding and this proceeding
are no longer parallel, as the Colorado River Abstention Doctrine will then no longer apply and
the stay must terminate.
P1aintit`fs’ do not, however, withdraw their opposition to Qwest’s pending Motion to
Dismiss Counts Il, III, IV and V ofP1aintil`fs’ Complaint Pursuant to Fed. R. Civ. P. l2(b)(6) or
'Qwest’s Motion to Transfer Proceeding to Colorado Pursuant to 28 U.S.C. § 1404. The Colorado
state court decision did not form a basis for Plaintiffs’ opposition to those motions. Accordingly,
Plaintiffs’ opposition to those motions is unaffected.
CERTIFICATION PURSUANT TO LOCAL RULES 7.1.1
Pursuant to the District of Delaware Local Rule 7.1.1, the undersigned counsel hereby
certifies that Plaintiffs’ counsel consulted with counsel for Defendant Qwest Communications
Corporation with respect to this Withdrawal.
*2 pColorc1do River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
2

3 I Case 1:07-cv-00822—G|\/IS Document 23 Filed O4/11/2008 Page 3 of 4
Respectfully submitted:
POTTER ANDERSON & CORROON LLP
OF COUNSEL: By: /s/
Richard L. Horwitz (#2246)
Ky E. Kirby . David E. Moore (#3983)
_ Jonathan S. Frankel Hercules Plaza, 6m Floor
Frank Lamancnsa 1313 N. Market Street
E Randall M. Levine Wilmington, DE 19899
BINHGAM MCCUTCHEN LLP Tel: (302) 984-6000
2020 K Street, NW [email protected]
Washington, DC 20006 dm0ore@;gotteranclerson.com
(202) 373-6000
Atmrneysfor Plaintyfv
Dated: April ll, 2008 Hyperflube, LLC and KMC Data, LLC
859935 /32559
2

I Case 1:07-cv-00822—G|\/IS Document 23 Filed O4/11/2008 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CERTIFICATE OF SERVICE
I, Richard L. Horwitz, hereby certify that on April ll, 2008, the attached document was
electronically tiled with the Clerk of the Court using CM/ECF which will send notiiication to the
registered attorney(s) of record that the document has been tiled and is available for viewing and
downloading.
I I I further certify that on April 1 1, 2008, the attached document was·E1ectronically Mailed
to the foliowing person(s):
Frederick Cotreli Timothy R. Beyer
Jeffrey L. Moyer Amy L. Benson
Richards, Layton & Finger, P.A. Lauren E. Schmidt
One Rodney Square Brownstein Hyatt Farber Schreck, P.C.
920 N. King Street 410 Seventeenth Street, 22“d F1.
Wilmington, DE 19899 Denver, CO 80202-4437
[email protected] tbeyer@,bhfs.eo1n
rnoyer@rli`.com abenson@,bhfs.eorn
j [email protected]
By: /s/ Richard L. Horwitz
Richard L. Horwitz
David E. Moore
Potter Anderson & Corroon LLP
Hercules Plaza, 6m Floor
1313 N. Market Street
P.O. Box 951
Wilmington, DE l9899—095l
(302) 984—6000
i rliorwitz@*igottera1iderson.com
· dmoore@_r;otteranderson.com
f 849078 /32559

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