IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 07-cv-00630-DME-MEH
NETQUOTE, INC., a Colorado corporation,
Plaintiff,
v.
BRANDON BYRD, an internet user making use of the IP Addresses 64.136.27.226 and
64.136.26.227, and
MOSTCHOICE.COM, INC., a Georgia corporation,
Defendants.
NETQUOTE’S MOTION TO DISMISS MOSTCHOICE’S COUNTERCLAIMS
Plaintiff NetQuote, Inc. (“NetQuote”), through undersigned counsel, moves to dismiss
the counterclaims of Defendant MostChoice.com, Inc. (“MostChoice”) pursuant to Rules 9(b)
and 12(b)(6), Fed. R. Civ. P., and in support of its motion states as follows:
BACKGROUND
NetQuote filed its Third Amended Complaint on April 16, 2007. Defendants Brandon
Byrd and MostChoice moved to dismiss on May 4, 2007 for lack of personal jurisdiction and for
failure to state a claim. See Dkt. # 16. The Court issued an opinion and order denying the
Motion to Dismiss on June 13, 2007. See Dkt. # 31. That ruling set forth the factual background
for this matter, and Plaintiff does not repeat that factual background here.
On June 15, 2007, MostChoice filed its Answer to the Amended Complaint and included
with the Answer two counterclaims alleging “Click Fraud” and Defamation. See Dkt. #33. In its
Case 1:07-cv-00630-DME-MEH Document 48 Filed 07/02/2007 Page 1 of 8
Netquote Inc. v. Byrd
Doc. 48
Dockets.Justia.com
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Answer, MostChoice did not materially dispute that it engaged in the wrongful conduct Plaintiffs
allege. Significantly, MostChoice admitted that its employee Brandon Byrd submitted at least
394 fictitious submissions on websites operated by NetQuote, Answer ¶ 33, 34, and that Byrd
was acting within the scope of his employment when he did so, Compl. ¶ 55 (Dkt. # 13), Answer
¶ 55. MostChoice further admitted that Byrd grouped his submissions to NetQuote’s websites
each day by geographic locale and by the type of insurance quotations he was seeking. Compl. ¶
35, Answer ¶ 35. That behavior maximized the amount of harm incurred by NetQuote.
MostChoice has