This issue will be addressed further in the Reply Brief to Netquote’s Response to
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Mostchoice’s Motion to Dismiss, but the original Motion to Dismiss filed in this action, as
drafted by the undersigned was only as to Brandon Byrd. Mostchoice local counsel was going to
make some stylistic changes, and assumed incorrectly that the motion was not properly styled. It
wasn’t until I reviewed the Court’s order that I became aware that it was filed on behalf of both
Byrd and Mostchoice.
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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.
DEFENDANT MOSTCHOICE.COM’S RESPONSE TO PLAINTIFF’S MOTION TO
DISMISS COUNTERCLAIMS FOR FAILURE TO STATE A CLAIM
Comes now, Defendant Mostchoice.com, Inc. and herein files this Response to Plaintiff’s
Motion to Dismiss Counterclaims for Failure to State a Claim Upon Which Relief Can be
Granted and shows this Court the following:
Introduction
Netquote represents in its motion that the Court’s previous ruling on a Motion to
Dismiss sets forth the factual background for this case. While some of the specific allegations
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of Netquote’s complaint have been admitted, the factual construction of Netquote’s pleadings
Case 1:07-cv-00630-DME-MEH Document 52 Filed 07/23/2007 Page 1 of 8
Netquote Inc. v. Byrd
Doc. 52
Dockets.Justia.com
Page 2 of 8
does not set the factual background in this case. Rather, it demonstrates all of the facts that
Netquote alleges to be true, which for purposes of the motion to dismiss, the Court was required
to accept as “factual.
At this stage, with the Court having received no evidence, it is irresponsible to even
suggest that the factual findings in order denying a motion under FRCP § 12 have any
resemblance to facts that may be established, rather than those that are merely allege