Gordon v. Impulse Marketing Group Inc - Document No. 97

Gordon v. Impulse Marketing Group Inc Doc.
97
Case 2:04-cv-05125-FVS Document 97 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,
LR 56.1 STATEMENT OF FACTS
11 v. RELATED TO PLAINTIFF’S MOTION
TO DISMISS OR FOR SUMMARY
12 IMPULSE MARKETING GROUP, JUDGMENT
INC.,
13 Jury Trial Demanded
Defendant
14
IMPULSE MARKETING GROUP,
15 INC.,
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 statement of
25
Page 1 of 18 DOUGLAS E. MCKINLEY, JR.
26 LR 56.1 STATEMENT OF FACTS Attorney At Law
RELATED TO PLAINTIFF’S MOTION TO P.O. Box 202
27 DISMISS OR FOR SUMMARY Phone 628-0809 Fax (509) 628-2307
JUDGMENT
28
– No. CV-04-5125-FVS
Dockets.Justia.com
1 facts pursuant to LR 56.1(c). Previously, the Plaintiff had submitted the affidavit of
2
James S. Gordon, Jr. and the affidavit of Eric Castelli in support of Plaintiff’s
3
4 motion to dismiss, or in the alternative, for summary judgment. In response, the
5 Defendant has filed the declaration of James A. Bodie (hereafter the “Bodie
6
Declaration”), which includes as an attachment Rule 26(a) disclosures filed by the
7
8 Plaintiff in a prior lawsuit (the Rule 26(a) disclosures). The Defendant had also
9 previously filed the declaration of Mr. Philip Huston. These documents currently
10
form the entire factual basis for each of the respective parties’ contentions before
11
12 the court.
13
14
As the Defendant has made a habit of untimely filings throughout the course
15
16 of this litigation1, the Plaintiff hereby objects to any further filings by the Defendant
17 attempting to alter, augment or add to the factual record now before the Court prior
18
to the motion being heard October 12, 2005, and hereby respectfully moves the
19
20 Court to strike any such filings.

21
22
Pursuant to LR 56.1(c), and based on the forgoing declarations and
23
24 submissions, the Plaintiff hereby sets forth its statement of the facts.
25 1
An example of one such filing is “Defendant’s Additional Supplemental Response RE:
26 Defendant’s Motion to Dismiss” filed May 20, 2005
DOUGLAS E. MCKINLEY, JR.
27 RELATED TO PLAINTIFF’S MOTION TO Page 2 of 18
Attorney At Law
DISMISS OR FOR SUMMARY P.O. Box 202
28 JUDGMENT Richland, Washington 99352
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
1 Plaintiff’s Fact #1
2 On or about May of 1998, Mr. Gordon registered the domain name
3 “gordonworks.com” and began using it to make information relating to job
4 searching and career development available to the general public on the internet.
5 Mr. Gordon also began using the email address gordonworks@gordonworks.com
6 Gordon Declaration, ¶ 2
7
8 The Defendant has not contested, and therefore has admitted this fact.
9
11 In addition to the email address “gordonworks@gordonworks.com” Mr. Gordon
12 created numerous other email addresses, all using the gordonworks.com domain.
13 These included msm@gordonworks.com, cash@gordonworks.com,
14 goals@gordonworks.com, business@gordonworks.com, jobs@gordonworks.com,
15 marketer@gordonworks.com, localbusiness@gordonworks.com,
16 peace@gordonworks.com, postmaster@gordonworks.com,
17 referral@gordonworks.com, webmaster@gordonworks.com,
18 genesis@gordonworks.com, teen@gordonworks.com, telecom@gordonworks.com,
19
emily@gordonworks.com, bonnie@gordonworks.com,
20
bonniegg@gordonworks.com, bonniefaye@gordonworks.com,
21
jeg@gordonworks.com, jay@gordonworks.com, jamila@gordonworks.com,
22
jonathan@gordonworks.com, jim@gordonworks.com, james@gordonworks.com.
23
Gordon Declaration, ¶ 3
24
25
The Defendant has not contested, and therefore has admitted this fact.
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
4 Many of these email addresses were published on the internet on various web pages
5 Mr. Gordon created.
7
9
11 Almost as soon as each of these email addresses was published on the internet, Mr.
12 Gordon began receiving commercial email at these addresses.
14
16
18 The addresses for Mr. Gordon’s family members, bonnie@gordonworks.com,
19
jay@gordonworks.com, jamila@gordonworks.com, jonathan@gordonworks.com,
20
jim@gordonworks.com, james@gordonworks.com, were all published on the
21
internet on web pages Mr. Gordon built for his family.
22
23
24
25
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
2 Although the web pages are related to Mr. Gordon’s family members, all of them
3 were created and maintained by Mr. Gordon, and email sent to any of these email
4 addresses is and was received by Mr. Gordon.
6
7 The Defendant has not contested, and therefore has admitted this fact. However, at
8 paragraphs 25-30 of the Bodie declaration, Mr. Bodie has alleged that this fact is
9 somehow inconsistent with Mr. Gordon’s Rule 26(a) disclosures in the prior
10 lawsuit, and has further alleged that this purported inconsistency raises issues of
11 material fact. Mr. Bodie is apparently upset about the language in these disclosures
12 where Mr. Gordon stated that each of the Third Party Defendants “may have
13 discoverable information regarding the facts pertinent to this lawsuit, including, but
14 not limited to information related to the receipt of emails from the Defendant or
15 agents acting at the behest of the Defendant by [each of the Third Party Defendants]
16 at an email address at “gordonworks.com”.” Mr. Bodie is apparently of the mind
17 that such a statement would be inconsistent with Mr. Gordon’s representation that
18 he also received commercial email from the Defendant at these same email
19
addresses.
20
21
In fact, there is no inconsistency. In fact, BOTH Mr. Gordon and the Third Party
22
Defendants received emails from the Defendant at these email addresses.
23
24
Apparently, the Defendants are unable to fathom the idea that one person might
25
share an email address with another person, or transfer an email address to another
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
1 person. However, these concepts are easily grasped by the millions of people
2 across the world who do, in fact, share email addresses, or who have, in fact,
3 transferred them. Sometimes, these email addresses provide hints that they are
4 shared. For example, one might reasonably expect that email addresses such as
5 “Smithfamily@aol.com,” “3kidsandadog@yahoo.com,” and
6 “JennyandDave@msn.com” were shared. In other instances, for example an email
7 address such as “23skiddoo@hotmail.com,” it might be unclear that the email
8 addresses were shared. However, in ALL cases, spammers such as the Defendant
9 are responsible for complying with the law related to commercial electronic mail,
10 whether they know that a particular email address is shared or not, or whether they
11 know that an email address has been transferred or not. And while the Defendant
12 would like the Court to believe sorting this matter out is material to the Defendant’s
13 claims, it is not. The Defendant’s claims fail as a matter of law whether the emails
14 were received by Mr. Gordon, the Third Party Defendants, or both.
15
17 In response to commercial emails purporting to offer free products, on or about
18 September 1, 2003, Mr. Gordon requested to receive the free products advertised in
19
these offers. Gordon Declaration, ¶ 8&9
20
21
The Defendant has not contested, and therefore has admitted this fact. Further, this
22
fact is consistent with the Defendant’s allegations at ¶ 8-14 of the Defendant’s
23
counterclaims and ¶ 15-21 of the Defendant’s Third Party Claims as set forth in
24
their amended answer.
25
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
2 These submissions were made by visiting a website advertised in these emails, and
3 entering an email address and other information into an online form. Mr. Gordon
4 used the following email addresses james@gordonworks.com,
5 faye@gordonworks.com, jamila@gordonworks.com, jay@gordonworks.com,
6 jonathan@gordonworks.com, emily@gordonworks.com Gordon Declaration, ¶ 9
7
9 Further, this fact is consistent with the Defendant’s allegations that Mr. Gordon and
10 the Third Party Defendant’s signed up to receive email at various websites, as
11 detailed in ¶ 8-14 of the Defendant’s counterclaims and ¶ 15-21 of the Defendant’s
12 Third Party claims. Indeed, are the sole acts that the Defendant alleges formed any
13 contract between any of the parties in the Defendant’s counterclaims and third party
14 claims.
15
16 Incongruently, at ¶ 20 and ¶ 47 of the Bodie declaration, the Defendant has

17 now alleged, (for the first time), that Mr. Gordon “fraudulently misrepresented his
18 identity to Impulse in violation of the terms and conditions of (“the Agreement”) of
19
the USA Gold Card Program (the “Program”).” However, the Bodie declaration is
20
the only place the Defendant has made any allegations related to a “contract” for a
21
“USA Gold Card.” Nowhere in the Defendant’s answer, counterclaims, and third
22
party claims is there any allegation that Mr. Gordon or any of the Third Party
23
Defendant’s ever entered into a “contract” for a “USA Gold Card.” Instead, the
24
Defendant’s counterclaims and third party claims allege that Mr. Gordon and the
25
Third Party Defendants “opted in to receive emails” at various websites. The
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
1 Plaintiff hereby denies the allegation that the Plaintiff ever entered into a “contract”
2 for a “USA Gold Card.”, but even if this allegation is assumed to be true, it is
3 irrelevant and immaterial to the Defendant’s pleadings.
4
5 The “Scheme” referenced in the Bodie declaration is based on the formation

6 of a contract for a “USA Gold Card,” whereas the Defendant’s counterclaims and
7 third party claims are based on the mere act of “opting in” to receive commercial
8 email in exchange for a free gift. As such, the “Scheme” referenced in paragraph 1
9 of both the Defendant’s counterclaims and the Defendant’s third party claims allege
10 both facts and a legal theory entirely distinct from the “Scheme” referenced in the
11 Bodie declaration.
12
13 Accordingly, while the allegations related to a “contract” for a “USA Gold

14 Card” in the Bodie declaration are disputed, they do not raise any questions of
15 material fact. The Defendant has not plead any claims concerning either the
16 formation or breach of the alleged contract for a “USA Gold Card”, and neither its
17 existence and/or its breach is material to the counterclaims or third party claims set
18 forth Defendant’s pleadings.
19
20
What the Defendant has alleged is that Mr. Gordon agreed to receive the
21
Defendant’s commercial email (spam) when he signed up to receive free products
22
(that never arrived) on various third party websites. Mr. Gordon admits he
23
requested the products, but has specifically denied that he agreed to receive spam
24
from the Defendant as a term or condition of any of these websites. The Defendant
25
has not contested, or indeed even addressed this fact, as the only “contract”
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
1 referenced in the Bodie declaration is for a “USA Gold Card.” Accordingly, the
2 Defendant has admitted that Mr. Gordon never agreed to receive commercial email
3 from the Defendant as a term or condition of his entering information at any of
4 these websites.
5
7 Mr. Gordon never received any of the free products advertised in the emails.
9
11

13 Nowhere on any of these websites was Mr. Gordon asked to give his consent to
14 receive any commercial email from the Defendant.
16
17 While the Defendant’s counterclaims and third party claims contain allegations
18 contrary to this fact, nowhere in the Defendant’s evidence has the Defendant has set
19
forth the existence of any fact that would supports those allegations. The
20
Defendant has therefore admitted this fact.
21
22
Plaintiff’s Fact #11
23
At no time did Mr. Gordon give his consent to receive any commercial email from
24
the Defendant.
25
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
2 The Defendant has contested this fact at paragraph 48 of the Bodie declaration
3 wherein Mr. Bodie states that Mr. Gordon has “repeatedly provided Impulse with
4 his express request to receive the emails at issue…” However, except for those
5 documents included with the declaration of Mr. Philip Huston, the Defendant has
6 not produced or even alleged the existence of a single document evidencing even a
7 single instance of an “express request.” Further, the Defendant has not produced or
8 even alleged the existence of any terms and conditions at any of the websites Mr.
9 Gordon did visit that contradict Mr. Gordon’s assertion that none of them required
10 his consent to receive emails from the Defendant. Accordingly, while the
11 Defendant’s counterclaims, third party claims, and paragraph 48 of the Bodie
12 declaration contain allegations contrary to this fact, nowhere in the Defendant’s
13 evidence has the Defendant has set forth the existence of any fact that would
14 supports those allegations. The Defendant has therefore admitted this fact.
15
16

18 Almost immediately after Mr. Gordon had filled out the online forms which
19
purported to offer free products, Mr. Gordon began to receive a torrent of
20
commercial email from the Defendant at the email addresses Mr. Gordon had used
21
to try to accept the offers for free prizes.
22
23
24
25
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS

3 Within a few weeks of his requests for free products, Mr. Gordon attempted to stop
4 the resulting torrent of commercial email by unsubscribing from these email lists.
5
7
9

11 In October of 2003, Mr. Gordon began submitting “unsubscribe” requests to the
12 Defendants, and continued to do so through Spring of 2005.
13
15
17

19
Exhibit F of the Declaration of Phil Huston filed with the Court January 21, 2005,
20
shows that the Plaintiff “opted out” of receiving future commercial emails from the
21
Defendant on October 15, 2003.
22
23
The Defendant has admitted this fact in part. The Bodie Declaration admits that
24
Exhibit F of the Declaration of Phil Huston shows that the Plaintiff “opted out” of
25
receiving “some” but not “all” future commercial emails from the Defendant. The
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
1 Bodie declaration then states that “a question of fact arises to if and when Gordon
2 and/or his family members “opted-in” again after such “opt-out occurred.”
3 However, no question of fact arises merely as a result of the Bodie declaration’s
4 idle speculation, and neither the Bodie declaration nor the Plaintiff’s complaint
5 allege that “Gordon and/or his family members “opted-in” again after such “opt-out
6 occurred.” Accordingly, while the Bodie declaration argues that a question of fact
7 about subsequent “opt-in” exists, it neither alleges as such nor does it present any
8 evidence of such.
9

11 Mr. Gordon’s “unsubscribe” requests were ignored, and in fact, the amount of
12 emails Mr. Gordon received increased after these requests were sent.
13
15
17

19
All of the emails that form the basis for Mr. Gordon’s lawsuit against the Defendant
20
were received by Mr. Gordon after Mr. Gordon had submitted these “unsubscribe”
21
requests.
22
23
24
25
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS

2 Throughout the fall of 2003, Mr. Gordon continued to receive emails from the
3 Defendant, and Mr. Gordon brought complaints about this unwanted and ongoing
4 commercial email to the Federal Trade Commission, the Attorney General for
5 Washington State, Tier 1 backbone internet providers, Mr. Gordon’s local ISP, and
6 the local, Richland, Washington police department.
7
9
11
12

14 At the local Richland, Washington police department, Mr. Gordon was put in
15 contact with Officer Lew Reed, a police officer specializing in cybercrimes
16 investigations. Officer Reed personally examined about 2,000 emails sent by the
17 Defendant, and confirmed to Mr. Gordon that information in the transmission paths
18 of the emails in question had been omitted and/or mischaracterized.
19
20
21
22
While the Defendant has not contested, and therefore has admitted this fact, the
23
Defendant’s brief has argued that Mr. Gordon’s declaration contains hearsay.
24
25
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
1 In November of 2004, having confirmed that the emails in question violated RCW
2 19.190 et seq., and having exhausted all avenues Mr. Gordon could conceive of to
3 stop the sending of this illegal spam to his domain short of litigation, Mr. Gordon
4 brought this suit against the Defendant.
6
8

10 Despite all of these efforts, and the fact that Mr. Gordon’s lawsuit against the
11 Defendant has been pending for 10 months, to this day the Defendant continues to
12 send Mr. Gordon commercial email that violates RCW 19.190 et seq.
13
15
17

19
In his prior lawsuit against Commonwealth Marketing Group, Inc., Mr. Gordon
20
identified his wife, Mrs. Bonnie Gordon; his children, Mr. James. S. Gordon III,
21
Mr. Jonathan Gordon, and Ms. Jamila Gordon; his friends, Mr. Robert Pritchett,
22
and Ms. Emily Abbey; and Officer Lew Reed as witnesses.
23
24
25
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
2

4 The Defendant has now sued all of these individuals as “Third Party Defendants,”
5 although the Defendant has moved to dismiss Officer Lew Reed.
6
8
10

12 To the extent that Mr. Gordon ever had any conversations with any of the Third
13 Party Defendants related to the commercial emails sent by the Defendant, Mr.
14 Gordon expressed his desire that they stop sending these emails, and his frustration
15 that the Defendant would not.
16
18
19
20
21
22
To the best of Mr. Gordon’s knowledge, at no time have any of the Third Party
23
Defendants ever solicited any of the commercial email to the “gordonworks.com”
24
email addresses that form the basis of this lawsuit.
25
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
2
5 forth the existence of any fact that would supports those allegations. The
6 Defendant has therefore admitted this fact.
7

9 At no time did any of the Third Party Defendants and Mr. Gordon ever discuss any
10 “scheme” whereby they would solicit any commercial emails to any
11 “gordonworks.com” email address that forms the basis of this lawsuit, as such
12 would have been directly contrary to Mr. Gordon’s often stated desire that the
13 Defendant stop sending me commercial email.
14
16
19
forth the existence of any fact that would supports those allegations. The
20
Defendant has therefore admitted this fact.
21
22
23
24
The Defendant’s claims against the Third Party Defendants thus appear to be
25
nothing more than an attempt to harm Mr. Gordon by exposing his friends, family
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
1 and law enforcement witnesses to the costs of defending themselves in civil

2 litigation.
3
5
8 forth the existence of any fact that would supports those allegations. The
9 Defendant has therefore admitted this fact.
10
11
12
Defendant’s Fact #1
13
The Defendant has alleged that “to the extent any emails referenced in Gordon’s
14
15 complaint are indirectly attributable to Impulse, said emails were transmitted by

16 CMG.”
17
Bodie Declaration, ¶ 7
18
19 While this allegation is not material to any of the Defendant’s counterclaims or

20
Third Party Claims, in an abundance of caution, the Plaintiff contests this fact. As
21
evidence that this is not a true fact, the Plaintiff notes that the Exhibit E of the
22
23 declaration of Phil Huston is a “Website Development and Marketing Services

24
Agreement” between the Defendant and CMG wherein the Defendant undertook
25
responsibility to “provide various marketing services designed to drive traffic to
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS
1 CMG’s USA Gold Card Website.” See paragraph 2. This agreement establishes
2
that it was the Defendant, and not CMG, who sent the emails.
3
4 DATED this 30th day of September, 2005

5
S/ DOUGLAS E. MCKINLEY, JR.
6 WSBA# 20806
Attorney for Plaintiff
7 P.O. Box 202
8 Phone (509) 628-0809
Fax (509) 628-2307
9 Email: doug@mckinleylaw.com
10 Certificate of Service
11 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
12 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
13 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
14 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.
15
16
S/ DOUGLAS E. MCKINLEY, JR.
17 . WSBA# 20806
Attorney for Plaintiff
18 P.O. Box 202
19 Phone (509) 628-0809
Fax (509) 628-2307
20 Email: doug@mckinleylaw.com
21
22
23
24
25
26
Attorney At Law
Phone 628-0809 Fax (509) 628-2307
– No. CV-04-5125-FVS

Gordon v. Impulse Marketing Group Inc - Document No. 97

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Gordon v. Impulse Marketing Group Inc - Document No. 97

Uploaded by

Copyright:

Available Formats

Gordon v. Impulse Marketing Group Inc Doc.

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

7 IN THE UNITED STATES DISTRICT COURT

4 motion to dismiss, or in the alternative, for summary judgment. In response, the

20 Court to strike any such filings.

16 Incongruently, at ¶ 20 and ¶ 47 of the Bodie declaration, the Defendant has

5 The “Scheme” referenced in the Bodie declaration is based on the formation

13 Accordingly, while the allegations related to a “contract” for a “USA Gold

12 Plaintiff’s Fact #10

17 Plaintiff’s Fact #12

2 Plaintiff’s Fact #13

10 Plaintiff’s Fact #14

18 Plaintiff’s Fact #15

10 Plaintiff’s Fact #16

18 Plaintiff’s Fact #17

1 Plaintiff’s Fact #18

13 Plaintiff’s Fact #19

9 Plaintiff’s Fact #21

18 Plaintiff’s Fact #22

3 Plaintiff’s Fact #23

11 Plaintiff’s Fact #23

8 Plaintiff’s Fact #25

1 and law enforcement witnesses to the costs of defending themselves in civil

15 complaint are indirectly attributable to Impulse, said emails were transmitted by

19 While this allegation is not material to any of the Defendant’s counterclaims or

23 declaration of Phil Huston is a “Website Development and Marketing Services

4 DATED this 30th day of September, 2005

You might also like