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Case 1:20-cv-01342-UNA Document 2 Filed 10/02/20 Page 1 of 13 PageID #: 4
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`GODADDY MEDIA TEMPLE INC., a
`California Corporation,
`
`Plaintiff,
`
`vs.
`
`ANEXIO DATA CENTERS, LLC, DOES 1
`through 10,
`
`
`
`Defendants.
`
` C.A. NO.:
`
`
`COMPLAINT FOR BREACH OF
`CONTRACT, ACCOUNT STATED,
`BOOK ACCOUNT, UNJUST
`ENRICHMENT, AND
`DEMAND FOR JURY TRIAL
`
`COMPLAINT
`
`Plaintiff GODADDY MEDIA TEMPLE INC., a California Corporation, (“PLAINTIFF”)
`
`alleges as follows against Defendant ANEXIO DATA CENTERS, LLC (“DEFENDANT” or
`
`“ANEXIO”):
`
`NATURE OF ACTION
`
`1.
`
`This action involves breaches of contractual, statutory, and common law duties
`
`owed by DEFENDANT to PLAINTIFF (collectively “the Parties”).
`
`2.
`
`On or about June 15, 2016, the Parties entered into a “MASTER SERVICES
`
`AGREEMENT” (“MSA”). A true and correct copy of the MSA is attached hereto as Exhibit A.
`
`Pursuant to the MSA, DEFENDANT was required to use reasonable efforts to deliver an invoice
`
`for recurring monthly service charges at least thirty days prior to the first day of the month to
`
`which such invoice relates. ANEXIO offered PLAINTIFF a 10% discount for services associated
`
`with the data center in El Segundo, CA (“LA Data Center”) in exchange for advance payment for
`
`the time period from March 1, 2019 through December 31, 2019. PLAINTIFF advanced payment
`
`to DEFENDANT in the amount of $1,899,713 to cover services from March 1 through December
`
`31, 2019. On June 20th, 2019, however, DEFENDANT was evicted from the LA Data Center and
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`Case 1:20-cv-01342-UNA Document 2 Filed 10/02/20 Page 2 of 13 PageID #: 5
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`
`
`ceased to provide PLAINTIFF with services, or access to the LA Data Center pursuant to the terms
`
`of the MSA, leaving a credit balance in the amount of $1,139,827.80 not including interest.
`
`3.
`
`DEFENDANT recognized the debt it owed to PLAINTIFF for its failure to deliver
`
`services per the Parties’ contract, and promised to offset, or otherwise provide full credit for the
`
`balance it owes to PLAINTIFF. Ultimately, however, DEFENDANT failed to provide any offset,
`
`credit, or refund, and failed to provide the services that it promised to PLAINTIFF.
`
`4.
`
`PLAINTIFF was forced to contract with a third party to provide the same, or
`
`substantially similar services at the same location for the same time period in 2019 without
`
`receiving any credit for payment to DEFENDANT. In spite of repeated requests, DEFENDANT
`
`failed to reimburse PLAINTIFF or provide any value in exchange for the amount it owes to
`
`PLAINTIFF.
`
`THE PARTIES
`
`5.
`
`At all times mentioned herein, PLAINTIFF was, and is now, an entity organized
`
`under the laws of California with a principal place of business in Los Angeles, California.
`
`6.
`
`At all times mentioned herein, DEFENDANT was, and is now, a Delaware limited
`
`liability company, with its principal place of business at One Bank of America Plaza, 421
`
`Fayetteville Street, Suite 1100, Raleigh, North Carolina 27601.
`
`7.
`
`PLAINTIFF is unaware of the true names and capacities, whether individual,
`
`corporate, associate or otherwise of defendants sued herein as Does 1 through 10, inclusive, and,
`
`therefore, PLAINTIFF sues said defendants by such fictitious names and will ask leave of court to
`
`amend this complaint to show their true names and capacities when the same have been
`
`ascertained.
`
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`
`
`8.
`
`At all times mentioned herein, defendants, and each of them, were the agents,
`
`employees, joint venturers, joint tortfeasors and partners of each of their co-defendants and, in
`
`doing the things herein described, were acting within the course and scope of their authority as
`
`such agents, employees, joint venturers, joint tortfeasors and partners.
`
`JURISDICTION AND VENUE
`
`9.
`
`PLAINTIFF brings its Complaint under federal diversity jurisdiction, 28 U.S.C.
`
`§ 1332. The Parties are completely diverse in citizenship, and the amount in controversy exceeds
`
`the jurisdictional minimum.
`
`10.
`
`PLAINTIFF is a California Corporation with its principal place of business in Los
`
`Angeles. DEFENDANT is a Delaware Limited Liability Corporation with its principal place of
`
`business in North Carolina. Therefore complete diversity of citizenship exists.
`
`11.
`
`The total amount of damages sought in this action exceeds the jurisdictional limit
`
`as PLAINTIFF is owed a minimum of $1,139,827.80 not including interest.
`
`12.
`
`Venue is proper in this Court because the Parties, by contract, specified that they
`
`consent to the mutual and exclusive jurisdiction of the state or federal courts located in the State
`
`of Delaware for any action brought in connection with, arising out of, or relating to the MSA.
`
`[Exh. A ¶ 15.]
`
`13.
`
`14.
`
`GENERAL ALLEGATIONS
`
`On or about June 15, 2016, the Parties entered into the MSA.
`
`Pursuant to the terms of the MSA, PLAINTIFF was to pay all fees and charges for
`
`services set forth on a “Service Order Form.” PLAINTIFF promptly paid all such fees.
`
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`
`
`15.
`
`DEFENDANT invoiced PLAINTIFF in advance for services, and offered a 10%
`
`discount for advance payment of six months of service, and a 20% discount for advance payment
`
`of twelve months of service.
`
`16.
`
`On February 27, 2018, by
`
`invoice number 40642 (“Invoice 40642”),
`
`DEFENDANT requested advance payment from PLAINTIFF for “ORDER #6861” covering
`
`“SERVICE PERIOD 2/1/2018-6/30/2018” in the amount of $1,087,984.44. Invoice 40642 also
`
`included a “Pre-payment discount” of approximately 10%. A true and correct copy of Invoice
`
`40642 is attached hereto as Exhibit B. PLAINTIFF promptly paid the entire sum of $1,087,984.44
`
`set forth on Invoice 40642.
`
`17.
`
`Similarly, by an invoice dated June 26, 2018 bearing invoice number 40929
`
`(“Invoice 40929”), for example, DEFENDANT requested that PLAINTIFF pay $1,139,828.13 in
`
`advance for the “SERVICE PERIOD” from “7/1/2018-12/31/2018.” The same invoice included
`
`a Pre-Payment discount of approximately 10%. PLAINTIFF promptly paid the entire sum of
`
`$1,139,828.13 billed by DEFENDANT to PLAINTIFF on Invoice 40929. A true and correct copy
`
`of Invoice 40929 is attached hereto as Exhibit C.
`
`18.
`
`In February of 2019, the parties discussed a similar discount in exchange for
`
`advance payment for services to be rendered from the beginning of March through the end of 2019.
`
`ANEXIO ultimately offered a 10% discount to PLAINTIFF for advance payment for services
`
`associated with the LA Data Center from March 1 through the end of 2019. By an invoice dated
`
`February 25, 2019 bearing invoice number 5139A (“Invoice #5139A”), DEFENDANT then billed
`
`PLAINTIFF for the “SERVICE PERIOD 3/01/19 – 12/31/2019” for services associated with the
`
`LA Data Center. A true and correct copy of invoice #5139A is attached hereto as Exhibit D. On
`
`February 28, 2019, DEFENDANT sent a copy of Invoice #5139A to PLAINTIFF by email. A
`
`
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`Case 1:20-cv-01342-UNA Document 2 Filed 10/02/20 Page 5 of 13 PageID #: 8
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`
`
`service order was attached to the same email. Invoice #5139A states that DEFENDANT applied
`
`a “Pre-Payment Discount – 10%” in the amount of $211,079.25 for advance payment of services
`
`through the end of the year. PLAINTIFF promptly advanced payment of $1,899,713.25, the total
`
`amount set forth on Invoice #5139A, for services through the end of the year.
`
`19.
`
`On subsequent invoices, including Invoice No. 5342 dated May 1, 2019 (“Invoice
`
`5342”), DEFENDANT credited PLAINTIFF’s advanced payment as “Pre-Payment Application,”
`
`and noted that it was applying a “Pre-Payment Invoices.” A true and correct copy of Invoice No.
`
`5342 is attached hereto as Exhibit E.
`
`20.
`
`On June 20th, 2019, ANEXIO was evicted from the LA Data Center and ceased to
`
`provide PLAINTIFF with services or access to the LA Data Center pursuant to the terms of the
`
`MSA, leaving a credit balance in the amount of $1,139,827.80 (“Credit Balance”) not including
`
`interest.
`
`21.
`
`On July 2, 2019 Tony Pompliano of ANEXIO wrote to PLAINTIFF and stated that
`
`PLAINTIFF’s expectation for a refund was reasonable. Specifically, he wrote: “Your expectations
`
`for getting a refund is reasonable, and understood. Unfortunately, I cannot just release the money
`
`because my lender/ bank has put restrictions on my access to cash.” Mr. Pompliano then suggested
`
`that DEFENDANT apply the Credit Balance to the amount PLAINTIFF was paying on a monthly
`
`basis for services associated with a data center in Ashburn, Virginia. Specifically, in recognition
`
`of the outstanding Credit Balance, DEFENDANT made the following offer to PLAINTIFF on July
`
`2, 2019: “I want to talk through with you about how we can potentially work together to getting
`
`money released from our bank. Not trying to get you in the middle of this, but I don’t want to
`
`ignore your request, and share with you the current challenges. If in the short term we are unable
`
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`
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`to get funds released back to [PLAINTIFF] we can apply your deposit to the Ashburn, VA site
`
`charges.”
`
`22.
`
`During a phone call that took place on July 2, 2019, Tony Pompliano of ANEXIO
`
`again suggested to PLAINTIFF that the Parties jointly petition DEFENDANT’s bank for release
`
`of the Credit Balance owed to PLAINTIFF.
`
`23.
`
`The Parties then entered into an agreement whereby PLAINTIFF was to withhold
`
`payments for services associated with the Ashburn ACC4 data center (“Ashburn Data Center”)
`
`and the Credit Balance would be applied towards those charges.
`
`24.
`
`The Parties then reduced their agreement to a formal written instrument, but
`
`DEFENDANT failed to execute it. When PLAINTIFF made inquiries with ANEXIO’s Tony
`
`Pompliano in July of 2019 regarding execution of the written instrument, Mr. Pompliano
`
`reaffirmed ANEXIO’s commitment to honor the Parties’ agreement to apply the Credit Balance to
`
`charges associated with the Ashburn Data Center. Specifically, on July 30, 2019, ANEXIO’s Tony
`
`Pompliano reaffirmed DEFENDANT’s commitment to honor the Parties’ agreement with respect
`
`to the outstanding Credit Balance. Mr. Pompliano explained that “I will honor our agreement.
`
`The bank is pulling me through knot holes about treatment of funds collected and what they think
`
`is their collateral . . . . Again, I am going to honor the agreement - just give me a couple of days
`
`to finalize the forbearance.”
`
`25. When PLAINTIFF withheld payment in August pursuant to the Parties’ agreement,
`
`however, DEFENDANT sent PLAINTIFF a notice of default dated August 16, 2019. Upon receipt
`
`of DEFENDANT’s notice of default referencing the default terms under the MSA, PLAINTIFF
`
`promptly made payment in the amount of $234,960 to avoid an interruption in services at the
`
`Ashburn Data Center.
`
`
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`
`
`26.
`
`On September 11, 2019, PLAINTIFF wrote to DEFENDANT providing formal
`
`notice that all service orders for the LA Data Center were terminated. PLAINTIFF also requested
`
`that the Credit Balance be applied to services provided in connection with the Ashburn Data
`
`Center. The entire Credit Balance remains outstanding and is owed to PLAINTIFF. Ultimately
`
`PLAINTIFF vacated the Ashburn Data Center on or about July 29, 2020 without receiving any
`
`recognition for the credit balance. PLAINTIFF was required to contract with a third party, in the
`
`meantime, to remain in the LA Data Center, and paid that third party to remain in the LA Data
`
`Center.
`
`FIRST CAUSE OF ACTION
`
`(Breach of Contract)
`
`27.
`
`PLAINTIFF re-alleges and incorporates by reference paragraphs 1 through 26 of
`
`this complaint as though fully and completely set forth herein.
`
`28.
`
`PLAINTIFF fulfilled all material terms of the Parties’ contract. To wit,
`
`PLAINTIFF made prompt payment of all fees and charges invoiced by DEFENDANT pursuant to
`
`the MSA, including advance payment of the amounts set forth on Invoice #5139A. In fact,
`
`PLAINTIFF advanced payment for all services enumerated on all service orders, and associated
`
`with the LA Data Center for the time period from March 1, 2019 through December 31, 2019.
`
`PLAINTIFF fulfilled all other material terms of the MSA.
`
`29.
`
`As such, DEFENDANT had a duty to provide all services contracted for and
`
`associated with the LA Data Center from March 1, 2019 through December 31, 2019 without
`
`disruption. .
`
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`
`
`30.
`
`On or about June 20, 2019, however, DEFENDANT was evicted from the LA Data
`
`Center. DEFENDANT failed to provide PLAINTIFF with services associated with the LA Data
`
`Center. DEFENDANT also failed to provide PLAINTIFF with access to the LA Data Center.
`
`31.
`
`The Parties agreed that DEFENDANT’s failure to provide the services associated
`
`with LA Data Center left a Credit Balance in PLAINTIFF’s favor in the amount of $1,139,827.80
`
`not including interest.
`
`32.
`
`On July 2, 2019, DEFENDANT suggested that the Parties jointly petition
`
`DEFENDANT’s bank for release of the entire Credit Balance to PLAINTIFF.
`
`33.
`
`Subsequently, the parties agreed that PLAINTIFF would withhold payment for
`
`services associated with the Ashburn Data Center, and the Credit Balance would be applied toward
`
`payment for those services.
`
`34.
`
`Ultimately, DEFENDANT reneged on its agreement to apply the Credit Balance
`
`toward services associated with the Ashburn Data Center.
`
`35.
`
`As such, DEFENDANT breached the terms of the MSA by failing to provide
`
`services associated with the LA Data Center from June through December 31, 2019.
`
`DEFENDANT then breached its promise to apply the Credit Balance to the fees associated with
`
`the Ashburn Data Center. Ultimately PLAINTIFF vacated the Ashburn Data Center on or about
`
`July 29, 2020 without receiving any recognition for the credit balance.
`
`36.
`
`PLAINTIFF is owed $1,139,827.80 for the Credit Balance associated with the LA
`
`Data Center. Moreover, PLAINTIFF is entitled to the benefit of its bargain. DEFENDANT must,
`
`therefore, pay the difference in the amount PLAINTIFF paid to any third party for the same, or
`
`substantially similar services provided to Plaintiff at the LA Data Center in 2019. PLAINTIFF is
`
`also entitled to attorneys’ fees per the terms of the MSA, or by application of equity. PLAINTIFF
`
`
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`
`
`is entitled to attorneys’ fees for the additional reason that DEFENDANT acted in bad faith.
`
`DEFENDANT’s bad faith is shown by, among other things, the fact that PLAINTIFF was forced
`
`to bring suit to enforce legal claims that the DEFENDANT knew was valid, and indeed recognized
`
`as valid.
`
`SECOND CAUSE OF ACTION
`
`(Account Stated)
`
`37.
`
`PLAINTIFF re-alleges and incorporates by reference paragraphs 1 through 38 of
`
`this complaint as though fully and completely set forth herein.
`
`38.
`
`The Parties entered into an agreement whereby DEFENDANT promised to provide
`
`services associated with the LA Data Center to PLAINTIFF for the time period dating from March
`
`1, 2019 through December 31, 2019.
`
`39.
`
`On or about June 20, 2019, DEFENDANT was evicted from the LA Data Center
`
`and failed to provide the services it promised to PLAINTIFF.
`
`40.
`
`The Parties then entered into discussions regarding DEFENDANT’s failure to
`
`provide services associated with the LA Data Center.
`
`41.
`
`DEFENDANT agreed that it owed PLAINTIFF $1,139,827.80, representing the
`
`amount remaining from the advance payment that PLAINTIFF made for services associated with
`
`the LA Data Center.
`
`42.
`
`DEFENDANT recognized that it owed Plaintiff the Credit Balance, and suggested
`
`that the Parties jointly petition DEFENDANT’s bank for release of the full Credit Balance.
`
`43.
`
`Subsequently, the parties agreed that PLAINTIFF would withhold payment for
`
`services associated with the Ashburn Data Center, and the Credit Balance would be applied toward
`
`
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`Case 1:20-cv-01342-UNA Document 2 Filed 10/02/20 Page 10 of 13 PageID #: 13
`
`
`
`payment for those services. Ultimately PLAINTIFF vacated the Ashburn Data Center on or about
`
`July 29, 2020 without receiving any recognition for the credit balance.
`
`44. While DEFENDANT recognized it owed PLAINTIFF the debt of $1,139,827.80
`
`associated with its failure to provide services associated with the LA Data Center, it ultimately
`
`failed to provide any credit or value for that amount. As such, PLAINTIFF is owed $1,139,827.80
`
`and seeks to recover same by way of this Complaint, plus interest at the legal rate, costs, and
`
`attorneys’ fees.
`
`THIRD CAUSE OF ACTION
`
`(Book Account)
`
`45.
`
`PLAINTIFF re-alleges and incorporates by reference paragraphs 1 through 46 of
`
`this Complaint as though fully and completely set forth herein.
`
`46.
`
`The Parties entered into a series of agreements dating back to 2006 for services
`
`related to the LA Data Center. In 2016, the Parties entered into the MSA.
`
`47.
`
`Pursuant to the terms of the MSA, PLAINTIFF was to pay all fees and charges for
`
`services described in a “Service Order Form.” The MSA requires that DEFENDANT use
`
`reasonable efforts to deliver an invoice for recurring monthly service charges at least thirty (30)
`
`days prior to the first day of the month to which such invoice relates. DEFENDANT did, in fact,
`
`invoice PLAINTIFF in advance for services, and offered a 10% discount to PLAINTIFF for
`
`advance payment of six months of service, and a 20% discount for advance payment of twelve
`
`months of service.
`
`48.
`
`In February of 2019, DEFENDANT offered PLAINTIFF a 10% discount for
`
`advance payment of services from March 1, 2019 through December 31, 2019. By Invoice
`
`#5139A, ANEXIO requested advance payment from PLAINTIFF for the “SERVICE PERIOD”
`
`
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`10
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`
`
`
`of “3/01/19 – 12/31/2019. Invoice #5139A states that DEFENDANT applied a “Pre-Payment
`
`Discount – 10%” in the amount of $211,079.25 for advance payment of services through the end
`
`of the year. PLAINTIFF promptly advanced payment of the entire total stated on Invoice #5139A.
`
`49.
`
`A Book Account exists in the form of a detailed statement representing the debits
`
`and credits between the parties, and arising out of the MSA as well related service orders and
`
`invoices. That Book Account provides that PLAINTIFF made advanced payment of
`
`$1,899,713.25 for services associated with the LA Data Center for the time period beginning
`
`March 1, 2019 and running through December 31, 2019.
`
`50.
`
`On or about June 20, 2019, DEFENDANT was evicted from the LA Data Center,
`
`and failed to provide the services that PLAINTIFF paid for in advance.
`
`51.
`
`Subsequently, the parties agreed that DEFENDANT owed PLAINTIFF a credit of
`
`$1,139,827.80 for services that DEFENDANT failed to provide. As such, a Book Account exists
`
`whereby PLAINTIFF is owed $1,139,827.80, and seeks that amount by way of its Complaint.
`
`PLAINTIFF also seeks an award of costs, interest, and any further relief at law or equity that the
`
`Court deems appropriate.
`
`FOURTH CAUSE OF ACTION
`
`(Unjust Enrichment)
`
`52.
`
`PLAINTIFF re-alleges and incorporates by reference paragraphs 1 through 53 of
`
`this Complaint as though fully and completely set forth herein.
`
`53.
`
`Pursuant to DEFENDANT’s request, PLAINTIFF made advance payment for
`
`services associated with the LA Data Center. Specifically, PLAINTIFF made advance payment
`
`of $1,899,713.25 for services associated with the LA Data Center that were to be provided by
`
`DEFENDANT from March 1, 2019 through December 31, 2019.
`
`
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`
`
`54.
`
`On or about June 20, 2019, DEFENDANT was evicted from the LA Data Center
`
`and subsequently failed to provide such services.
`
`55.
`
`As a result of DEFENDANT’s eviction, PLAINTIFF was forced to contract with a
`
`third party to provide the same, or substantially similar services at the same location. PLAINTIFF
`
`was, therefore, forced to pay twice for the same services from June 20, 2019 through December
`
`31, 2019.
`
`56.
`
`DEFENDANT agreed to provide PLAINTIFF with a refund, or a credit in the
`
`amount of $1,139,827.80 for services that DEFENDANT failed to provide. Ultimately, however,
`
`DEFENDANT failed provide a refund, or anything of value in return for the Credit Balance.
`
`57.
`
`As such, PLAINTIFF was wrongfully deprived of $1,139,827.80, and continues to
`
`be deprived of that sum. Although DEFENDANT recognizes the wrongful nature of its conduct,
`
`DEFENDANT has failed to compensate PLAINTIFF for the wrongful deprivation of
`
`$1,139,827.80.
`
`58.
`
`59.
`
`Thus, DEFENDANT was unjustifiably enriched in the amount of $1,139,827.80.
`
`In the event there is no adequate remedy at law, PLAINTIFF therefore seeks by
`
`way of this Complaint $1,139,827.80 from Defendant, interest at a legal rate, costs, and any other
`
`remedy at equity that the Court deems appropriate including attorneys’ fees.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, PLAINTIFF prays for judgment against DEFENDANTS, and each of
`
`them, as follows:
`
`1.
`
`For damages owed in law, and at equity for $1,139,827.80;
`
`
`LEGAL\48638508\1
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`Case 1:20-cv-01342-UNA Document 2 Filed 10/02/20 Page 13 of 13 PageID #: 16
`
`
`
`2.
`
`Any and all consequential damages stemming from DEFENDANT’s breach of the
`
`Parties’ agreements including, but not limited to, business interruption damages and the benefit of
`
`the bargain for any and all services associated with the LA Data Center.
`
`For interest at the legal rate;
`
`For additional damages according to proof;
`
`Reasonable attorneys’ fees according to proof;
`
`Costs of suit incurred herein; and,
`
`Such other and further relief as the court may deem just and proper.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`
`
`DEMAND FOR JURY TRIAL
`
`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, PLAINTIFF demands trial by
`
`jury in this action of all issues so triable.
`
`
`Dated: October 2, 2020
`
`
`
`
`
`
`LEGAL\48638508\1
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`
`
`
`
`
`COZEN O’CONNOR
`
` /s/ Gregory Fischer
`Gregory Fischer (DE 5269)
`1201 North Market Street, Suite 1001
`Wilmington, DE 19801
`Telephone: (302) 295-2017
`E-mail: gfischer@cozen.com
`
`Paula Zecchini (pro hac vice to be submitted)
`Nathan Dooley (pro hac vice to be submitted)
`601 S Figueroa Street, Suite 3700
`Los Angeles, CA 90017
`Telephone: (213) 892-7900
`E-mail: pzecchini@cozen.com
` ndooley@cozen.com
`
`Attorneys for Plaintiff
`GODADDY MEDIA TEMPLE INC.
`
`
`13
`
`

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