Tabberone is pronounced tab ber won
not tay ber own
|
|
Tabberone is pronounced tab ber won |
|
|
IN THE UNITED STATES DISTRICT COURT
KAREN DUDNIKOV and MICHAEL MEADORS, RESPONSE TO DEFENDANTS' MOTION TO DISMISS COMPLAINT FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE Plaintiffs Karen Dudnikov and Michael Meadors, pro se, respond to Defendants' Motion To Dismiss Complaint For Lack Of Personal Jurisdiction And Improper Venue ("Motion"). In support of this response is the attached Affidavit of Marie Mueller ("Mueller Aff") with exhibits numbered #8 and #9 and the Affidavit of Karen Dudnikov ("Dudnikov Aff") with exhibits numbered #10 through #20. BACKGROUND 1. On December 12, 2005, Plaintiffs filed a Complaint For Declaratory Judgment of Copyright Non-Infringement and Injunctive Relief ("Complaint") against Chalk & Vermilion Fine Arts ("CVFA") and Sevenarts Ltd, ("Sevenarts"). 2. On or about December 2, 2005, CVFA, using the eBay VeRO Program (see ¶¶13-14 of Complaint), ordered eBay to terminate two auctions belonging to the Plaintiffs. This fact is not denied by the Defendants (see Motion pg 6 ¶A). This action by Plaintiffs caused Plaintiffs to lose revenue from the sales of the fabric in question and placed the business of the Plaintiffs in jeopardy because eBay maintains a policy of suspending repeat offenders (see Complaint Exhibit #1 pg 1. The "Why Ended" email sent by eBay contains the warning: " IMPORTANT WARNING: repeated violations of this or other eBay policies may result in the suspension of your account". (see Complaint Exhibit #1 pg 1). When eBay terminates listings, the seller is considered to be "guilty" until proven innocent by eBay. eBay keeps score, or blackmarks against the seller's account, and will without warning, indefinitely or permanently suspend an account, effectively destroying a business that is internet based (see Dudnikov Aff ¶11). eBay's VeRO Page lists as a "highlight" of the VeRO Program being: "Suspension of repeat offenders" (see Dudnikov Aff Exhibit #10, ¶Highlights). 3. In 2003, and possibly earlier, Defendants used the eBay VeRO Program to take similar actions against other eBay auctions for much the same reasons they asserted to the Plaintiffs. Defendants were aware of the possible consequences of their actions at least two years before taking action against the Plaintiffs (see Complaint Exhibit #3, Pg 6). 4. When contacted by the Plaintiffs, CVFA referred inquiries to Sevenarts (see Complaint ¶27) saying the CVFA was an agent of Sevenarts. 5. Sevenarts refused to reconsider the action taken by its representative CVFA, ordering CVFA to take similar action again should the Plaintiffs re-list the fabric in question (see Complaint ¶33 and Complaint Exhibit #5 pg 1). Sevenarts expressed no concern over the loss of business for the Plaintiffs, the potential damage to the business or the business of the Plaintiffs being placed in jeopardy. PERSONAL JURISDICTION 6. To establish personal jurisdiction, Plaintiffs must show that the Defendants 1) committed an intentional act, 2) expressly aimed that act at the forum state, and 3) knew the act would have an effect and that effect was likely to occur in the forum state.7. Joining the eBay VeRO Program is a voluntary act (see Dudnikov Aff Exhibit #10). As part of the VeRO Program, eBay openly touts "Suspension of repeat offenders" under "Highlights", as well as the "Expeditious removal of listings…." Should the VeRO member decide to file the Notice Of Claimed Infringement ("NOCI"). Filing an NOCI is not mandatory; it is a voluntary act on the part of the VeRO Member. Upon receipt of an NOCI, eBay immediately terminates the listings (see Dudnikov Aff ¶1). 8. Having used the VeRO Program in the past, Defendants were aware of the actions to be taken by eBay once the NOCI was filed (see Complaint Exhibit #3, pg 6). In this email forwarded to Plaintiffs by Sevenarts, dated July 21, 2003, defendants show they were using the VeRO Program to terminate auctions two years before shutting down two auctions belonging to the Plaintiffs and therefore knew what would happen when they voluntarily issued the NOCI. 9. Defendants admit filing the NOCI with eBay to remove the auctions originating from Colorado, belonging to the Plaintiffs. This was a purposeful act on the part of the Defendants. 10. In order to ascertain the information required for the NOCI, Defendants would have had to view the auctions belonging to the Plaintiffs. At the very top of every auction page, in plain view without having to scroll, is the wording "Item Location: Hartsel Colorado." (see Dudnikov Aff Exhibit #11, pg 1). Included in every auction, in bold red type, is the business name of the Plaintiffs and their address in Colorado. Just below the address, in red type, is the statement that, "Colorado residents must pay sales tax on the winning amount" (see Dudnikov Aff Exhibit #11, pg 3). The Defendant CVFA knew the action taken by them in issuing the NOCI would result in an effect in Colorado. 11. The Defendants knew from information provided by eBay, and past experience, that the NOCI would result in eBay terminating the auctions and possibly suspending the seller, an activity that they knew would have an injurious effect in the forum state of the seller (see Complaint Exhibit #3, Pg 6). 12. eBay keeps track of take-downs and suspends repeat offenders. Terminated auctions from an NOCI place a seller's account in jeopardy (see Dudnikov Aff ¶11). Plaintiffs derive the great majority of their income from eBay auction sales (see Complaint ¶9). The selling account of the Plaintiffs is now in jeopardy because of the action taken by the Defendants (see Dudnikov Aff ¶11). Plaintiffs filed the complaint to defend their business. 13. Plaintiffs "bear the burden of establishing personal jurisdiction" over Defendants with an affirmative showing of prima facie evidence. OMI Holdings, Inc v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). Plaintiffs have met this burden. The Defendants' actions were purposeful, they were directed at residents of the forum state (the Plaintiffs), and the injuries arise from and are related to these actions. 14. Specific jurisdiction arises in the absence of such general activity and is predicated upon a defendant's minimum contacts with the forum which give rise to the cause of action. Kennedy, 919 F.2d at 128 n. 2. The touchstone inquiry is whether "the defendant has 'purposefully directed' its activities toward the forum jurisdiction and [whether] the underlying action is based upon activities that arise out of or relate to the defendant's contacts with the forum." In re Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir.1996), (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174). "Even a single purposeful contact may be sufficient ... when the underlying proceeding is directly related to that contact." Id. at 419. See McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). 15. Unlike Wise v Lindamood, 89 F.Supp.2d 1187, 1189 (D Colo 1999), where the complaint seeking a declaratory judgment was filed after two cease and desist letters were sent to the plaintiff, a threat by the defendant in Wise, but where the defendant took NO direct action against the plaintiff, here the Defendants took aggressive and direct actions to terminate the auctions, thus causing an effect harming the business of the Plaintiffs and placing their business and livelihood in jeopardy. Unlike Wise, where only a threat was made, here, the conduct of the Defendants precipitated the injury and the complaint. 16. In the argument concerning jurisdiction, Counsel for Defendants misstates Calder v Jones, 465 U.S. 783, 789 (1984) (see Motion Page 6 ¶1). Counsel quotes part of an argument and analogy put forth by the defendants in Calder, not the argument of the Court (see Calder v Jones, 465 U.S. 783, 789 (1984). The very paragraph quoted by Counsel begins with, "Petitioners argue…" which leaves little doubt it is not the reasoning of the Court. Counsel also specifically omitted, in the next paragraph, the subsequent rejection of that argument by the Court, saying, "Petitioners' analogy does not wash". The manner in which it is done makes it appear the quote was a finding of the Court in Calder, which it was not. Counsel is attempting to introduce the argument, "The mere fact that they can 'foresee' that the article will be circulated and have an effect in California is not sufficient for an assertion of jurisdiction." (emphasis added) that even if the Defendants knew what would happen that is not reason for establishing jurisdiction, by presenting it as Court reasoning, which it is not. This reasoning was rejected by the Court. 17. In Calder, Calder and South, both Florida residents, were writers for the National Enquirer and wrote an allegedly libelous article about Shirley Jones, a professional entertainer who lives and works in California. Jones sued. Calder and South moved to quash the service of process for lack of personal jurisdiction. The Court in Calder stated: "In this case, petitioners are primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis." id. at 790. The Court in Calder also stated: "In sum, California is the focal point both of the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the "effects" of their Florida conduct in California". World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 -298 (1980); Restatement (Second) of Conflict of Laws 37 (1971). id at 789. 18. Another appropriate excerpt from Calder applying here would be: "Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must "reasonably anticipate being haled into court there" to answer for the truth of the statements made in their article. World-Wide Volkswagen Corp. v. Woodson, supra, at 297; Kulko v. California Superior Court, supra, at 97-98; Shaffer v. Heitner, supra, at 216. An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California." (see Calder v Jones, 465 U.S. 783, 789 (1984). 19. Calder is very similar to this case because the Defendants voluntarily took action knowing it would cause harm in another jurisdiction and now seek to avoid the consequences of their actions. Defendants voluntarily terminated auctions belonging to the Plaintiffs causing a loss of revenue as well as placing the continuing business and livelihood of the Plaintiffs in jeopardy. GENERAL JURISDICTION 20. The Motion and the obviously self-serving Affidavit of Eric Danneman both refer to CVFA having a passive web site. Both are wrong and misleading. The web site is interactive, not passive as alleged. And, the Affidavit of Eric Danneman omits the fact that CVFA operates two interactive web sites, not one. 21. On the CVFA web site, there is a "Chalk Membership" web page that invites browsers to "Become A Member." followed by a web page form wherein the browser can fill in information and email the information to CVFA (see Dudnikov Aff Exhibit #13). 22. While the "Chalk Membership" page states that "Gallery Membership" is "Available to qualified art galleries only", CVFA does not make any attempt to verify the information before welcoming the applicant into the fold (see Mueller Aff ¶¶6-8). 23. Marie Mueller emailed information to CVFA using the email form late Tuesday evening, February 14, 2005. Early the next morning, Marie Mueller received a reply from CVFA welcoming her and inquiring if she had any questions. No attempt was made by CVFA to verify any of the information provided by Marie Mueller (see Mueller Aff ¶¶6-8). 24. Marie Mueller did not provide a federal tax number or sales tax number, a normal requirement for a "qualified" business. CVFA did not call or email her for confirming information beyond that originally tendered on February 14. (see Mueller Aff ¶8). 25. Marie Mueller emailed CVFA using her real name, her real email address, her former physical address and her present cell telephone number. Under Gallery Name she entered Marie's Collectibles. . (see Mueller Aff ¶¶6-8). 26. On Tuesday, February 21, 2006, Marie Mueller received by US mail a packet of material from CFVA. This packet arrived priority mail and contained advertising brochures and price lists. 27. On the CVFA web site, under "Press Releases" (see Dudnikov Aff Exhibit #14), there are at least two press releases that solicit browsers to call an 800 number provided. The first one touts a free sample of an Erté DVD while the other touts a new series of bronzes (see Dudnikov Aff Exhibit #15). Based upon the lack of follow-up when Marie Mueller signed up, there is little reason to believe the solicitations on these pages would be limited to "members only" as alleged by CVFA and the Danneman Affidavit. 28. Search engines, such as GOOGLE and Alta Vista, use software to search web sites and catalog the information there as part of the service provided to browsers. The drop-down box used by the CVFA email form on the web site for the US states lists each US state individually using the full state name, not an abbreviation. This causes the search engine to catalog and index each state individually along with the Chalk & Vermilion name and individually listed products, so that each state is individually linked to the company name and every product. A person in Colorado searching for "Colorado" and any of the products would find the CVFA web site presented as meeting the search criteria. 29. The CVFA web site is not a passive web site as alleged but a commercial web site that solicits business information under the guise of a "membership" . Business information is collected, business information which is not verified, thereby effectively negating the claimed umbrella of protection afforded by a passive web site. The CVFA web site actively solicits business in every state, is promoting its products in every state and is willing to sell its products in every state. The CVFA web site at least twice lists 800 telephone numbers for interested shoppers to call for products and samples (see Dudnikov Aff Exhibit #15). Unlike companies that do not conduct business in Colorado, CVFA is actively trying to solicit and conduct business in Colorado and very likely has done business in Colorado in the recent past despite their allegation to the contrary. Judge Babcock in Wise made the following statement: "Here, Lindamood-Bell's Web site is moderately interactive insofar as it permits Colorado-based consumers to submit requests for product catalogs, and information regarding workshops/conferences, individualized treatment programs, and school-wide treatment programs. For all of these requests, the requester is required to provide an electronic mail address, thus suggesting that individual Lindamood-Bell employees communicate via the Internet with requesters. In addition, individuals can register via the Web site for "open houses" or "clinics." Consequently, the commercial nature of the Web site's interactivity, coupled with the other contacts listed above, bolsters my conclusion that general personal jurisdiction exists with respect to Lindamood-Bell." (see Wise v Lindamood, 89 F.Supp.2d 1187, 1194 (D Colo 1999). 30. Informational web sites, such as InfoSpace, located at the web address of http://www.infospace.com/home/yellow-pages, provide internet yellow page directory look-up services (see Dudnikov Aff Exhibit #20, pg 1). When the search criteria "art gallery" is entered under "Business Type" and the state of Colorado is selected, over 2,700 listings for Colorado are returned. Plaintiffs find it difficult to believe that CVFA is not doing business with at least one of these "art galleries" in Colorado (see Dudnikov Aff Exhibit #20, pg 2). In contrast, over 7,700 listings for "art gallery" are returned for the State of New York a state with a much larger population 31. The Affidavit of Eric Danneman stated CVFA has no member art galleries in Colorado. Based upon the results of a search of "art galleries" in Colorado, Plaintiffs find it very difficult to believe that CVFA has no "members", past or present, in Colorado. Considering the fact that CVFA does not "qualify" people who apply for "Chalk Membership" (see Mueller Aff ¶¶6-8) and that they post a toll-free telephone number, it seems very unlikely they have no customers in Colorado. The Danneman Affidavit does not state if there were previous member "art galleries" in prior years. It also does not state if the membership roles were purged of Colorado membership before the affidavit. Also missing from the affidavit is a clarification as to why CVFA does not conduct business in Colorado. Based upon the email form on the web site, it is obvious CVFA wants to do business in Colorado and actively solicits business in Colorado. 32. In October, 1998, Eric Danneman is quoted in "Electric Commerce: Click Here", paragraph heading "The Internet As A Promotion Vehicle", as saying: Eric Dannemann, president of Chalk & Vermilion Fine Arts, Greenwich, CT, which purchased Martin Lawrence Galleries a year ago, sees the Internet very much as a promotion vehicle. "It is a good way to introduce the company and its art and start a dialogue-and we get many, many hits on the site-so it is obviously working on a certain level." As far as sales go, Mr. Dannemann says they comprise mostly less expensive products such as books and posters. "As you get into the more expensive echelons of art, it is not advisable to buy, sight unseen," he says. When someone visiting the Martin Lawrence site-a site that has won a number of awards-and they show a serious interest in a piece of art, "it is always taken up person to person" by a gallery representative. The President of CVFA believed web sites are very good selling vehicles (see Dudnikov Aff Exhibit #16) over five years ago. There was nothing in his affidavit saying that his view, or that of CVFA, has changed. 33. CVFA purchased the internationally known Martin Lawrence Galleries in 1997. Martin Lawrence Limited Editions is registered with the State of New York (see Dudnikov Aff Exhibit #17). CVFA is listed as the parent company. David Rogath, one of the owners of CVFA, is listed as Chairman, and the Principle Executive Office is listed as that of CVFA in Greenwich, CT. The Martin Lawrence web site, www.MartinLawrence.com, like the CVFA web site, shows the same Administrative Contact at CVFA in Greenwich, CT York (see Dudnikov Aff Exhibit #18). Eric Danneman is the President of both CVFA and Martin Lawrence Galleries. 34. Martin Lawrence Galleries, in the very same business as the parent company CVFA, offers a wide variety of artifacts on its web site. Among these, a Peacock Ring by Erté for a mere $1,295, solicits "Don't wait. Call now for more details" listing a dozen regional telephone numbers to call (see Dudnikov Aff Exhibit #19). This web site is interactive. It solicits business in every possible location by inviting browsers to join their mailing list. Up until 1998, there was a Martin Lawrence Gallery in Denver. It is reasonable to expect the gallery mailing list of Colorado clients is still being used by both companies. Martin Lawrence Gallery was conducting business in Colorado when acquired by CFVA. 35. It is inconceivable that Martin Lawrence does not get products from CVFA and sell them to the public as an extension of CVFA. CVFA is doing business in every state through Martin Lawrence, including Colorado. 36. Courts generally agree that although a "passive" or moderately "interactive" Web site alone is insufficient to confer general personal jurisdiction, see, e.g., Hurley v. Cancun Playa Oasis Int'l Hotels, 1999 WL 718556, *2 ( E.D.Pa.) ; ESAB Group, Inc. v. Centricut, LLC, 34 F.Supp.2d 323, 330 (D.S.C.1999) , an "interactive" Web site, together with other contacts, can meet the minimum jurisdictional threshold. See, e.g., Coastal Video Communications, Corp. v. Staywell Corp., 59 F.Supp.2d 562, 568-71 (E.D.Va.) Mieczkowski v. Masco Corp., 997 F.Supp. 782, 788 (E.D.Tex.1998) ; Heroes, Inc. v. Heroes Foundation, 958 F.Supp. 1, 5 (D.D.C.1996). 37. Although no bright-line test exists, most courts have applied an "interactive-passive" distinction when determining personal jurisdiction over someone operating a Web Site. Generally, courts have conferred personal jurisdiction in cases where "interactive" uses of the Internet have taken place within the state. Interactive contact encompasses two-way online communication which fosters an ongoing business relationship, while "passive" contacts are those that simply make information available to interested viewers. A Web Site can be characterized as interactive if business transactions can be conducted over the Internet or if information can be exchanged with users for the purpose of soliciting business. In making an "interactive vs. passive" determination, the greater the commercial nature and level of interactivity associated with the Site, the more likely it is that the Web Site operator is "purposefully availing itself" of the forum state's jurisdiction. 38. Attempting to solicit business can be deemed enough to establish general jurisdiction. In Inset Systems, Inc. v. Instructions Set, Inc. , 937 F. Supp. 161 (D. Conn. 1996), the only activity that the Web Site operator engaged in besides maintaining its Internet Site was providing a toll-free number on the Site. Although seemingly innocuous, the court perceived the toll-free number as an attempt to solicit business in the forum state and extended personal jurisdiction over the defendant. 39. Similarly, in Heroes, Inc. v. Heros Foundation, 958 F. Supp. 1 (D.D.C. 1996), the district court found that a charity organization purposefully availed itself of the privilege of doing business in the forum state by expressly soliciting donations and providing a toll-free number on its Internet Web Site. 40. "The likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet" (Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F. Supp. 1119 [W.D. Pa. 1997]). The most obvious case for asserting jurisdiction exists when a defendant clearly does business over the Internet. 41. If the defendant does business online with residents of a state other than his own, which "involve[s] the knowing and repeated transmission of computer files over the Internet" (Zippo, 952 F. Supp at 1124), then personal jurisdiction is proper. VENUE 42. Plaintiffs contend that because a "substantial part of the events or omissions giving rise to the claim occurred" in Colorado, venue is proper here. Accepting the argument as far as venue is concerned, that the complaint is the result of infringing activities by the Plaintiffs, venue is proper in Colorado. As Judge Babcock stated in Wise,:"I must next decide where "a substantial part of the events or omissions giving rise to the claim occurred." 28 U.S.C. § 1391(b)(2). The dispute in this case results from the alleged conduct of Plaintiffs. There is no reason to alter this conclusion in the context of the venue analysis. See Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir.1995) ("The place where the alleged [infringement] occurred ... provides an obviously correct venue."). See also Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir.1994); Tefal, S.A. v. Products Int'l Co., 529 F.2d 495, 496 n. 1 (3d Cir.1976)(decided under prior venue rule); Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956) (same). Here, most, if not all, of Plaintiffs' alleged infringement has taken place in Colorado. That the alleged infringement arises in the context of a declaratory judgment action does not change the result. " (see Wise v Lindamood, 89 F.Supp.2d 1187, 1198 (D Colo 1999). DUE PROCESS CLAUSE 43. Colorado long-arm statute extends jurisdiction of Colorado courts to fullest extent permitted by Due Process Clause of United States Constitution. 44. Factors to consider in determining whether exercise of personal jurisdiction offends traditional notions of fair play and substantial justice include: (A) burden on defendant; (B) forum state's interest in resolving dispute; (C) plaintiff's interest in receiving convenient and effective relief; (D) interstate judicial system's interest in obtaining most efficient resolution of controversies; and (E) shared interest of several states in furthering fundamental substantive social policies. 45. Defendants have not presented evidence indicating that the burdens on it, a corporate defendant, resulting from litigating this case in Colorado are insuperable. Moreover, because this case turns on federal law, Colorado's interest in resolving this dispute is at least as great as that of Connecticut or New York. Finally, there is no indication that litigating this suit in Colorado will have a deleterious effect on the interstate judicial system's interest in obtaining the most efficient resolution of controversies, or the shared interest of the several states in furthering fundamental substantive social policies. Exercising personal jurisdiction is not unfair. (see Wise v Lindamood, 89 F.Supp.2d 1187, 1194 (D Colo 1999), MISLEADING STATEMENTS BY COUNSEL 46. On page 2 of the Motion, Counsel for Defendants placed a footnote having no relevance to the Motion. The footnote has two glaring and deliberate misstatements. 47. Counsel states, "While they claim to sell things on eBay,.." as though the statement by Plaintiffs of having an internet-based business is fraudulent (see Complaint ¶¶6-9). Counsel offers no proof of the falseness of the claim nor any justification for the remark other than to prejudice to Court into believing the matter at hand is trivial and so is the business of the Plaintiffs. A quick look at the eBay web site under the user name of Tabberone (see Complaint ¶7) would have easily confirmed the information (see Dudnikov Aff Exhibit #11). 48. Even a cursory examination would show Plaintiffs have been selling on eBay since 1998 with over 12,000 transactions since 1998 and over 5,000 in the last twelve months. 49. In the footnote, Counsel also states "Plaintiffs have commenced at least 14 lawsuits in this Court, many of which were summarily dismissed". This is not relevant to this proceeding and is only designed to give the Court the impression the Plaintiffs file frivolous lawsuits that are "summarily dismissed" by the Court. Most of the lawsuits listed were favorably settled and voluntarily dismissed, at the request of the Plaintiffs, or jointly by Plaintiffs and the defendants, a fact readily available using PACER. Counsel took the time to access the information to list the lawsuits, pointedly ignoring the voluntary dismissals, preferring to characterize them as "summarily dismissed" to create the impression the Plaintiffs are legal gadflies using the courts to harass defendants. After reaching settlement agreements with the defendants who originally refused to consider the trademark and copyright issues involved, settlements in which most of the defendants paid the costs of the Plaintiffs, the lawsuits were voluntarily dismissed, not summarily dismissed as alleged by Counsel. The number of lawsuits is a reflection of the Plaintiffs having to aggressively defend themselves from the unethical and improper actions of VeRO members (see Complaint ¶15). Companies such as Disney Enterprises, Major League Baseball, M&M/Mars and United Media, although billion dollar companies with extensive legal budgets, preferred to settle rather than take the copyright and trademark issues into court. 50. Plaintiffs strenuously object to the misleading tone and deceptive nature of the Footnote and the misrepresentations. Counsel seems inclined to take unwarranted liberties when presenting information to the Court. CONCLUSION 51. Defendants knew from experience the NOCI sent to eBay would result in action being taken against the Plaintiffs in Colorado. 52. Specific personal jurisdiction, arises in absence of general activity and is predicated upon defendant's minimum contacts with forum which give rise to cause of action. One contact is sufficient. The contact was deliberate, caused injury, and gave rise to the cause of action. 53. The touchstone of the minimum contacts analysis is "whether 'the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.' " Benton, 375 F.3d at 1078 (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559). 54. Defendant CVFA maintains, owns and operates two interactive web sites that solicit business and are openly willing to conduct business in Colorado. Defendant CVFA owns and operates Martin Lawrence Galleries which did business in Denver until 1998 and still does business in Colorado through the internet, mail and telephone contacts, and therefore subject to general jurisdiction. 55. Defendant Sevenarts is closely allied with CVFA in business, CVFA being not only a business associate, but an agent of Sevenarts (see Complaint Exhibit #2, pg 1), taking direct orders from Sevenarts (see Complaint Exhibit #5, pg 1), sending the NOCI to eBay under orders from Sevenarts, making jurisdiction over Sevenarts a logical and legal extension of any jurisdiction over CVFA. As the Court stated in Wise: "Moreover, because Ms. Lindamood owns the copyright and trademark rights that are the subject of this suit, it is reasonable that she participate here. Indeed, Ms. Lindamood has the most substantial interest in the outcome of this action." (see Wise v Lindamood, 89 F.Supp.2d 1187, 1195 (D Colo 1999). 56. Colorado long-arm statute extends jurisdiction of Colorado courts to fullest extent permitted by Due Process Clause of United States Constitution. 57. This Court has jurisdiction and the venue is proper in Colorado. For the reasons stated herein, Plaintiffs request the Court deny Defendants' Motion To Dismiss Complaint For Lack Of Personal Jurisdiction And Improper Venue. Respectively submitted February 24, 2006
By Certificate of Service I HEREBY CERTIFY that on this 24h Day of February, 2006, a true and correct copy of the RESPONSE TO DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPRER VENUE was mailed, with all attachments, postage prepaid, Priority Mail to:
Scott Sandberg, #33566 Michael Meadors |
