Gordon v. Impulse Marketing Group Inc Doc.

96
Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 DOUGLAS E. MCKINLEY, JR. THE HONORABLE FRED VAN

Attorney At Law SICKLE
2 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
3

7 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON
8 AT RICHLAND
9 JAMES S. GORDON, JR, NO. CV-04-5125-FVS
10 Plaintiff,
REPLY IN SUPPORT OF PLAINTIFF’S
11 v. MOTION TO DISMISS
COUNTERCLAIMS AND THIRD
12 IMPULSE MARKETING GROUP, PARTY DEFENDANTS UNDER FRCP
INC., 12(b)(6) OR IN THE ALTERNATIVE
13 FOR SUMMARY JUDGMENT UNDER
Defendant FRCP 56 OR IN THE ALTERNATIVE
14 TO DISMISS UNDER FRCP (9)(b)
IMPULSE MARKETING GROUP,
15 INC., Jury Trial Demanded
16 Third Party Plaintiff
17
v.
18
BONNIE GORDON, JAMES S.
19 GORDON, III, JONATHAN
GORDON, JAMILA GORDON,
20 ROBERT PRITCHETT, EMILY
ABBEY, and LEW REED
21
Third Party Defendants
22

23

24 COMES NOW the Plaintiff, James S. Gordon, Jr., and files this reply in
25
Page 1 of 11 DOUGLAS E. MCKINLEY, JR.
Attorney At Law
26 REPLY IN SUPPORT
P.O. Box 202
Richland, Washington 99352
27 – No. CV-04-5125-FVS
Phone 628-0809 Fax (509) 628-2307

28

Dockets.Justia.com
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 support of Plaintiff’s motion to dismiss counterclaims and claims against Third

2
Party Defendants under FRCP 12(b)(6), or in the alternative for summary judgment
3

4 under FRCP 56, or in the alternative to dismiss under FRCP (9)(b).

5 Introduction
6
Faced with a motion asking the Court to dismiss the Plaintiff’s friends and
7

8 family as Third Party Defendants (who have been sued purely as a result of their
9 having witnessed the Defendant’s illegal spamming activities in a prior lawsuit), the
10
Defendant waited until 4:30 pm on day before their responsive brief was due and,
11

12 instead of filing a responsive brief, instead filed an “amended” answer setting forth
13 the same counterclaims and the same third party claims as their original answer,
14
and moved to strike the Plaintiff’s motion. The Court properly denied the
15

16 Defendant’s motion, and the Defendant subsequently filed its responsive brief,
17 raising for the first time a challenge to the Plaintiff’s “standing” to bring its’ motion
18
to dismiss, and for the first time asserting a counter motion for summary judgment.
19

20 Accordingly, this reply will respond to the “standing” issue, the issues raised by the
21
“amendments” to the Defendant’s answer, and the Defendant’s countermotion for
22
summary judgment.
23

24 The Plaintiff Has Standing to Bring its Motion

25
Considerations of standing are normally made to determine whether a court
26
REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 2 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 has jurisdiction over parties before it, not to decide issues among parties properly
2
before the court. “The essence of the standing question, in its constitutional
3

4 dimension, is whether the plaintiff has alleged such a personal stake in the outcome

5 of the controversy [as] to warrant his invocation of federal-court jurisdiction and to

6
justify exercise of the court’s remedial powers on his behalf.” Oregon Advocacy
7

8 Center v. Mink 322 F.3rd 1101 (9th Cir. 2003) quoting Vill. of Arlington Heights v.
9 Metro. Hous. Dev. Corp., 429 U.S. 252, 260-61 (1977) (alteration in
10
original)(internal quotation marks eliminated). In contrast, the standing issue as
11

12 raised by the Defendant in the instant case turns these jurisdictional concerns on
13 their head. The Defendant argues that the Plaintiff’s lack of standing preserves,
14
rather than defeats, the invocation of federal-court jurisdiction over the Third Party
15

16 Defendants and justifies, rather than eliminates, the exercise of the court’s remedial
17 powers on the Defendant’s behalf.
18
The Defendant cannot have it both ways. Having invoked this Court’s
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20 jurisdiction over the Third Party Defendants by naming them to this action, the
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Defendant should be barred from invoking any doctrine rooted in defeating that
22
same jurisdiction, particularly when it is invoked for the sole purpose of preventing
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24 the Court from considering the merits of the Defendant’s claims. The court should
25
therefore ignore the Defendant’s fake concern about protecting the interests of
26
REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 3 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 people they have sued. The Third Party Defendants are perfectly capable of
2
seeking redress with the Court if they harbor any objections to the Plaintiff’s
3

4 bringing this motion, or the Court’s eventual ruling.

5 In any event, it is clear that the Plaintiff’s motion survives a traditional

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standing analysis. As set forth by the 9th Circuit, “Together, the constitutional and
7

8 prudential components of standing insure that plaintiff’s possess “such a personal

9 stake in the outcome of the controversy to insure that concrete adverseness which
10
sharpens the presentation of issues upon which the court so largely depends for
11

12 illumination of difficult constitutional questions.” Oregon Advocacy Center v.

13 Mink 322 F.3rd 1101 (9th Cir. 2003) quoting Baker v. Carr, 369 U.S. 186, 204
14
(1962). The Plaintiff possesses exactly such a personal stake. One of the Third
15

16 Party Defendants is the Plaintiff’s wife, and three more are his children.
17 Accordingly, the Defendant’s claim that the Plaintiff “has no personal stake in the
18
outcome of its claims against the Third Party Defendants” is pure sophistry, as it
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20 completely ignores these familial relationships.

21
With respect to Third Party Defendants Robert Pritchett and Emily Abbey,
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the Defendant itself asserts in its brief that the very fact that the Defendants are
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24 pursuing claims against these individuals may give rise to claims by them against
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the Plaintiff. As such, according to the Defendants, the Plaintiff has a direct
26
REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 4 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 economic interest in defeating the Defendant’s claims against these parties.

2
Further, it “has long been clear that economic injury is not the only kind of injury
3

4 that can support a plaintiff's standing.” Vill. of Arlington Heights v. Metro. Hous.

5 Dev. Corp., 429 U.S. 252, 262-63 (1977) (internal citations omitted). Third Party
6
Defendants Robert Pritchett and Emily Abbey have been named in this suit purely
7

8 as a result of their being witnesses to the Defendant’s bad acts in a prior lawsuit,
9 which in turn came about as a result of their friendship with the Plaintiff and their
10
use of the Plaintiff’s interactive computer services. The Plaintiff therefore has an
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12 obvious interest in protecting them from the Defendant’s vexatious litigation

13 resulting from that friendship and their use of his interactive computer service, and
14
has standing to bring this motion in furtherance of those ends.
15

16

17 The Defendant’s Amendments to the Claims and Counterclaims are insufficient to

18
prevent dismissal under FRCP 12(b)(6) or summary judgment under FRCP 56
19

20

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The legal basis for each of the counterclaims and third party claims set forth
22
against the Plaintiff in the “amended” answer is the same as those of the original
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24 answer. The sole difference between the two versions are two new factual
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allegations which contradict each other, and each of which has already accepted as
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REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 5 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 true for purposes of the Plaintiff’s pending motion.

2
The first new allegation is that the Plaintiff “misrepresented his identity”
3

4 when he responded to advertisements for free products on the internet by

5 “representing to the Defendant” that he was each of the Third Party Defendants.
6
Assuming such conduct to be true, all it amounts to is an allegation that Mr. Gordon
7

8 signed his friends and family up to receive a free gift. This conduct simply is not
9 actionable, particularly by the Defendant, nor does it give rise to the application
10
doctrine of “unclean hands” as argued by the Defendant.
11

12 In the first instance, this information was NOT given to the Defendant. As
13 alleged in the Defendant’s answer, the information was given to the unidentified
14
individuals who ran the websites identified in the Defendant’s answer and whom
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16 the Defendant characterizes as its “marketing partners.” In the second instance, all
17 of the evidence before the Court indicates that any information given to these
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unidentified individuals was true and accurate.
19

20 In the affidavit of James S. Gordon, Jr., Mr. Gordon plainly sets forth that he
21
used a variety of different emails that he shared with each of the Third Party
22
Defendants to request free products. Each of these email addresses were valid,
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24 operating email addresses, and the information given to the unidentified individuals
25
who ran these websites was thus true and accurate information. In other words, the
26
REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 6 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 Plaintiff did exactly what he was invited to do by these websites; he signed up to

2
receive a free gift, and gave the websites true and accurate information including
3

4 working email addresses. This is not “misconduct” that gives rise to the application

5 of the doctrine of unclean hands.

6
The Defendant then somehow acquired that information, and, without the
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8 permission of the Plaintiff or any of the recipients, began using it to send illegal
9 spam to the Plaintiff and the Third Party Defendants. The Defendant obviously
10
doesn’t like the fact that it is being sued for sending that illegal spam, but the
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12 Defendant’s frustration doesn’t give rise to a cause of action.

13

14
With respect to the Third Party Defendants, the only difference between the
15

16 Defendant’s original answer and the “amended” answer are repeated and bizarre
17 allegations that each of the third party defendants “fraudulently represented” that
18
they were none other than themselves. For example, paragraph 15 of the
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20 Defendant’s third party complaint in the “amended” answer contains a typical

21
allegation. It states:
22
“On September 16, 2003, Third Party Defendant, Jonathan Gordon, opted-in
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24 to receive email at the website located at www.homeforfreestuff.com

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fraudulently representing to Third Party Plaintiff, or its marketing partners,
26
REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 7 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 that he was Jonathan Gordon.”

2

4 In other words, the Defendant has now alleged that Jonathon Gordon

5 represented that he was none other than Jonathon Gordon, and that somehow this
6
constitutes “fraud.” The Plaintiff is unable to discern how it is possible for a person
7

8 to represent oneself as oneself “fraudulently.” While there is no evidence that any

9 of the Third Party Defendants “opted-in to receive email,” even if this allegation is
10
accepted as true, it still does not constitute “fraud” or give rise to any cause of
11

12 action.
13 Thus, assuming the Defendant’s allegations to be true, the Third Party
14
Defendants did exactly what they were invited to do by these websites; they signed
15

16 up to receive a free gift, and gave the websites true and accurate information as to
17 their identity, including working email addresses that they shared with the Plaintiff.
18
This is not “misconduct” that gives rise to the application of the doctrine of unclean
19

20 hands. Again, the Defendant obviously doesn’t like the fact that it is being sued
21
for sending illegal spam to those email addresses, but the Defendant’s frustration
22
doesn’t give rise to a cause of action against the Third Party Defendants.
23

24

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REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 8 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 The Defendant’s Cross Motion for Summary Judgment Should be Denied

2
The Defendant has filed a cross motion for summary judgment asking the
3

4 court to rule that R.C.W. §19.190 et seq. “only protects Gordon’s individual

5 “electronic mail address” and does not protect any other “electronic e-mail
6
addresses” located at the Domain.” This allegation is flatly contradicted by RCW
7

8 §19.190.040(2) which states:

9 Damages to an interactive computer service resulting from a violation of this
10 chapter are one thousand dollars, or actual damages, whichever is greater.
11 An “interactive computer service” and an "internet domain name" are defined at
12
RCW §19.190.010(7) and (8), which read:
13

14 (7) "Interactive computer service" means any information service, system, or

access software provider that provides or enables computer access by
15 multiple users to a computer server, including specifically a service or system
16 that provides access to the internet and such systems operated or services
offered by libraries or educational institutions.
17

18 (8) "Internet domain name" refers to a globally unique, hierarchical reference

to an internet host or service, assigned through centralized internet naming
19
authorities, comprising a series of character strings separated by periods, with
20 the right-most string specifying the top of the hierarchy. (emphasis added)
21

22 Plainly, the legislature explicitly gave an "interactive computer service" a

23
cause of action for all violations of the Act associated with its “internet domain
24
name.” The Plaintiff has pled that it is an "interactive computer service" as that
25

26 term is defined in the statute, and is entitled to recover $1,000 damages for all
REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 9 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 commercial electronic email sent to the interactive service’s domain that violate the
2
statute. Finally, there is no evidence whatsoever that the legislature intended to
3

4 limit any internet user in the State of Washington to the use of a single email

5 address, or to limit their recovery for damages for violations of R.C.W. §19.190 et
6
seq. to a single email address.
7

8 CONCLUSION
9 The Plaintiff respectfully requests that the Court grant the Plaintiff’s motion
10
to dismiss the Defendant’s counterclaims against the Plaintiff and claims against
11

12 the Third Party Defendants under FRCP 12(B)(6), or in the alternative grant
13 summary judgment under FRCP 56, or in the alternative dismiss under FRCP
14
(9)(b). The Plaintiff further respectfully requests that the Court deny the
15

16 Defendant’s motion to hold that R.C.W. §19.190 et seq. only protects a single
17 “electronic mail address” for an individual, and does not protect an interactive
18
service provider.
19

20
DATED this 30th day of September, 2005
21

22 S/ DOUGLAS E. MCKINLEY, JR.

WSBA# 20806
23 Attorney for Plaintiff
P.O. Box 202
24 Richland, Washington 99352
Phone (509) 628-0809
25 Fax (509) 628-2307
Email: doug@mckinleylaw.com
26
REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 10 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
 Case 2:04-cv-05125-FVS Document 96 Filed 09/30/2005

1 Certificate of Service
2 I hereby certify that on September 30, 2005, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF System which will send notification of such
3 filing to the following: Floyd Ivey, Peter J. Glantz. I hereby certify that I have served
the forgoing to the following non-CM/ECF participants by other means: Bonnie
4 Gordon, Jonathan Gordon, James S. Gordon, III, and Robert Prichett. I hereby certify
that I have served the forgoing to the following persons who are non-CM/ECF
5 participants named in this lawsuit, but who have not yet been served or entered an
appearance in this lawsuit by other means: Emily Abbey and Jamila Gordon.
6

7 S/ DOUGLAS E. MCKINLEY, JR.

. WSBA# 20806
8 Attorney for Plaintiff
P.O. Box 202
9 Richland, Washington 99352
Phone (509) 628-0809
10 Fax (509) 628-2307
Email: doug@mckinleylaw.com
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REPLY IN SUPPORT
27 DOUGLAS E. MCKINLEY, JR.
Page 11 of 11
– No. CV-04-5125-FVS Attorney At Law
28 P.O. Box 202
Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307