Re: 5/13/00 - [AZNT] REPLY IN SUPPORT OF DEFENDANT JEFFREY S. MITCHELL'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FABRICATION OF EVIDENCE
Jeffrey S. Mitchell
Pro Se
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
AMAZON NATURAL TREASURES, INC., )
a Nevada corporation, )
) CV-S-00-0158-PMP (RLH)
Plaintiff, )
)
VS. )
)
JANICE SHELL, DEAN DUMONT, D. TOD )
PAULY, JEFFREY MITCHELL, CYNTHIA )
DEMONTE, DEMONTE & ASSOCIATES, a )
New York corporation, SILICON INVESTOR, )
a Delaware corporation, RAGING BULL, a )
Delaware corporation, JOHN DOE NO. 1 )
A/K/A/ CARLW DOES I through CXIII, and )
BLACK CORPORATIONS I through XX, )
inclusive, )
)
Defendants. )
__________________________________________ )
REPLY IN SUPPORT OF DEFENDANT JEFFREY S. MITCHELL'S
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
AND FABRICATION OF EVIDENCE
A. INTRODUCTION
Plaintiff?s Opposition primarily relies upon the Ninth Circuit case of Cybercell, Inc. v. Cybercell, Inc., 130 F.3d 414 (1997), which actually defeats Plaintiff's Opposition and supports Defendant Jeffrey Mitchell's Motion to Dismiss. (See, Plaintiff's Opposition, pp. 2-4.) In Cybercell, the Ninth Circuit held that personal jurisdiction does not exist over a defendant who allegedly posted Internet messages that were generally accessible to Internet users, but were not directly sent to individuals in the forum state. Id. at 415. This is the case here. The alleged Internet messages of Defendant Mitchell were sent from the state of Connecticut to individuals located in states such as New York and Wisconsin. None of the alleged postings were addressed or sent to anyone in Nevada. The Ninth Circuit has expressly held that no personal jurisdiction exists under these circumstances. Id.
B. CASE LAW CITED BY PLAINTIFF SUPPORTS DEFENDANT MITCHELL?S
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
1. The Minimum Contacts Test Fails
Plaintiff?s Opposition confirms that Plaintiff cannot satisfy the following three-prong "minimum contacts" test that is required to establish personal jurisdiction: (i) the defendant must have purposefully availed itself of the privilege of conducting the alleged activities in the forum state; (ii) the claim must arise out of defendant's forum-related activities; and (iii) jurisdiction must be reasonable. Ballard v. Savage, 65 F.3d 1495, 1497 (9th Cir. 1995).
a. No Purposeful Availment Occurred
The purposeful availment prong fails because the alleged Internet postings of Defendant Mitchell contained nothing more than messages sent from his home in Connecticut to individuals located in states other than Nevada, such as New York and Wisconsin. Cybercell, Inc. v. Cybercell, Inc., 130 F.3d at 415 (no jurisdiction where alleged Internet postings were not directly sent to the forum state, but were generally accessible to forum Internet users).
In Cybercell, the non-resident defendant posted messages on the Internet under the trademark of the plaintiff, an Arizona corporation. The defendant's Internet messages were not directed toward anyone in the forum state of Arizona, although they were generally accessible to Internet users throughout the United States and Arizona. The District Court granted the defendant's Motion to Dismiss for Lack of Personal Jurisdiction. The Ninth Circuit affirmed the District Court's ruling, holding that:
[I]t would not comport with "traditional notions of fair play and substantial justice"...for Arizona to exercise personal jurisdiction over an allegedly infringing Florida website advertiser who has no contacts with Arizona other than maintaining a homepage that is accessible to Arizonans, and everyone else, over the Internet. We therefore affirm.
Id. (emphasis added.)
The Ninth Circuit further held that personal jurisdiction required "something more" than merely posting Internet messages that were generally accessible to forum state residents. Id. at 418. The court stated:
Creating a [web]site, like placing a product into the stream of commerce, may be felt nationwide - or even worldwide - but, without more, it is not an act purposefully directed toward the forum state.
Id., citing, Bensusan Restaurant Corp. v. King, 937 F. Supp. 295, 301 (S.D.N.Y. 1996), aff'd. 126 F.3d 25 (2nd Cir. 1997) (emphasis added).
In Panavision International v. Toeppen, 141 F.3 d 1316 (9th Cir. 1998), also cited in Plaintiff's Opposition, the Ninth Circuit reiterated that a forum state could not exercise personal jurisdiction merely because Internet postings (that were not directly sent to individuals in the forum state) may have been generally accessible to the forum state residents. 141 F.3d at 1321. The Panavision International court specifically noted that no court has ever held that an Internet posting alone was sufficient to subject a party to jurisdiction in another state. Id. at 1321.
Here, the alleged Internet postings by Defendant Mitchell were not sent to anyone in Nevada. They were allegedly directed toward individuals in states other than Nevada such as New York and Wisconsin. The alleged postings were nothing more than this. This is insufficient to create personal jurisdiction. Cybercell, Inc. v. Cybercell, Inc., 130 F.3d at 415; Panavision International v. Toeppen, 141 F.3d at 1321. Defendant Mitchell's Motion to Dismiss must therefore be granted because no personal jurisdiction exists. Id.
a. No Purposeful Availment Under the Effects Doctrine
Plaintiffs attempt to establish purposeful availment via the "effects doctrine" also fails because the alleged Internet postings were not expressly sent to anyone in Nevada. Cybercell, Inc. v. Cybercell, Inc., 130 F.3d at 419; Core-Vent Corp. v. Nobel Industries, 11 F.3d 1482, 1486 (9th Cir. 1993) (no jurisdiction under the effects doctrine where the alleged conduct was not expressly aimed at the forum).
The effects doctrine falls under the umbrella of the purposeful availment prong of the minimum contacts test. See, Panavision International v. Toeppen, 141 F.3d 1320-22. Under this doctrine, the purposeful availment test is satisfied only when the following are established: (1) an intentional act; (2) expressly aimed at the forum state; and (3) causing harm, the brunt of which is suffered, and which the defendant knows is likely to be suffered, in the forum state. Core-Vent Corp. v. Nobel Industries, 11 F.3d at 1486.
In the case of Internet postings, the Ninth Circuit has refused to recognize purposeful availment under the effects doctrine where the alleged postings were not "expressly aimed" at individuals in the forum state. Id.; Cybercell, Inc. v. Cybercell, Inc., 130 F.3d at 420. Thus, purposeful availment under the effects doctrine exists only if the alleged postings were knowingly sent directly to someone in the forum state. Id. Here, the alleged Internet postings of Defendant Mitchell were not "expressly aimed" at anyone in Nevada. These alleged postings were sent from Connecticut to individuals in states other than Nevada such as New York and Wisconsin. The effects doctrine therefore fails. Id.
Plaintiff's reliance upon Panavision International v. Toeppen, 141 F.3d 1316 (9th Cir. 1998), is misplaced. In Panavision, the defendant engaged in a scheme to register the plaintiff's trademarks as his Interact domain names for the purpose of extorting money from the plaintiff. 141 F.3d at 1322. In addition to using the plaintiff's trademarks on a website that was generally accessible to all Interact users, the defendant "expressly aimed" his conduct toward the plaintiff by mailing an extortion letter directly to the plaintiff's address in the forum state. 141 F.3d at 1319. The court held that simply posting a message on the Internet was "not sufficient to subject a party domiciled in one state to jurisdiction in another." Id. at 1322. Instead, the court held that, in accordance with the purposeful availment test, the effects doctrine required "something more" than merely posting an Interact message that was generally accessible. Id. In Panavision, that "something more" was the defendant's act of "entering" the forum state by expressly sending the extortion letter directly to the plaintiff in that forum. See, Id. at 1319, 1322.
Here, the alleged activities of Defendant Mitchell do not include "something more" than merely posting Internet messages toward individuals outside of Nevada. Thus, Panavision is materially different than the instant case and does not support jurisdiction. Id.
Plaintiffs reliance upon Core-Vent Corp. v. Nobel Industries, 11 F.3d 1482 (9th Cir. 1993), is also misplaced because it directly supports Defendant Mitchell's Motion to Dismiss. In CoreVent Corp., the defendant allegedly published defamatory information in medical journals that were generally accessible throughout the United States and Europe. The plaintiff, a California corporation, sued the defendant and asserted personal jurisdiction in California under the effects doctrine. The District Court dismissed the action for lack of personal jurisdiction. The Ninth Circuit upheld the dismissal by holding that, although the alleged defamatory information was generally accessible to residents in the forum state of California, it was not "expressly aimed" at the forum such that forum residents were "the primary audience." 11 F.3d at 1486. This is precisely the case here. The alleged postings of Defendant Mitchell were not "expressly aimed" at Nevada such that Nevada residents were the "primary audience." Thus, as in Core-Vent Corp., jurisdiction does not exist under the effects test. Id.
Plaintiff's reliance upon Calder v. Jones, 465 U.S. 783 (1984), is also misplaced. In Calder, the defendant allegedly published defamatory material about the plaintiff in its newspaper magazines. The court held that jurisdiction existed under the effects doctrine because the defendant directly circulated its newspaper magazines to a large audience in the forum state. Id. Here, Defendant Mitchell did not directly circulate the alleged postings to individuals in Nevada. Thus the effects test also fails under Calder.
The Ninth Circuit decision in Cybercell confirms that the Calder decision does not support a finding of jurisdiction. In Cybercell, the Plaintiff also attempted to rely upon the Calder ruling in order to establish jurisdiction under the effects doctrine. The Cybercell court rejected this argument holding that Calder was not analogous to cases involving Internet postings that were generally accessible. 130 F.3d at 420. The Cybercell court specifically held that Calder was inapplicable because the alleged Internet postings were not directly sent to individuals in the forum state. Id. Likewise, Calder has no application here because the alleged postings were not directly sent to anyone in the forum state. Id. The effects test therefore fails. Id.[1]
In sum, Plaintiff cannot satisfy the purposeful availment prong of the minimum contacts test. Id.[2]
[1] The Cybersell court also noted that the effects doctrine does not apply with the same force where the plaintiff is a corporation because a corporation "does not suffer harm in a particular geographic location in the same sense that an individual does." 130 F.3d at 420, quoting Core-Vent, 11 F.3d at 1486. Likewise, here, the alleged harm to Plaintiff, as a public corporation, would have been dispersed throughout the United States (rather than solely in Nevada) where its 700 "retail locations" and shareholders are located. Indeed, Plaintiff's website at: www.amazon-treasures.com., boasts of having over 700 "retail locations" throughout the fifty United States.
[2] Plaintiff's brief reference to Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Ltd. Partnership, . 34 F.3d 410 (72 Cir. 1994) is also misplaced. In that case, the defendant was subject to personal jurisdiction because it was involved in broadcasting its games directly to the forum state of Indiana. Id. at 411. Thus, the defendant "expressly aimed" its alleged conduct to the forum. That is not the case here. Defendant Mitchell's alleged postings were not directly sent to anyone in Nevada.
b. Plaintiff's Claim Did Not Arise Out of Forum-Related Activities
Plaintiff's Opposition incorrectly argues that the second prong of the minimum contacts test is met because the alleged postings had the effect of injuring Amazon in Nevada. (Opposition, p. 8; 15-16.) Plaintiff is wrong.
First, Plaintiff apparently attempts to erroneously use the effects doctrine to satisfy the second prong of the minimum contacts test. (Id.) As previously noted, the effects doctrine is only applicable to the first prong (i.e., purposeful availment) of the minimum contacts test. Supra, p.4. It is not applicable to the second prong of this test. Id. The correctly stated test of the second prong is whether the plaintiff's claim arises out of the defendant's forum-related activities. Ballard v. Savage, 65 F.3d at 1500. Contrary to Plaintiff's Opposition, the second prong is not concerned with whether the alleged conduct had the effect of causing harm in the forum. Id.
Second, Plaintiff cannot establish that its claim arose out of forum-related activities conducted by Defendant Mitchell. Indeed, Plaintiff Opposition ignores the fact that Defendant Mitchell has not conducted any activities in Nevada. Defendant Mitchell does not reside, work, or own property in Nevada. Nor were the alleged postings sent to anyone in Nevada. Since Mr. Mitchell had no forum related activities, there cannot be any claim arising out of this void of activity. Id.
Third, even if Defendant Mitchell had conducted forum-related activities, it cannot be said, without relying upon Plaintiffs self-serving speculation and conjecture, that there has been a resulting harm or that the alleged harm would not have occurred but for those alleged activities. Ballard v. Savage, 65 F.3d at 1500. Plaintiffs cannot rely upon conclusory, self-serving statements to establish this second prong of the minimum contacts test. Delange v. Dutra Construction Co., Inc., 183 F.3d 916, 921 (9th Cir. 1999) (party cannot rely upon conclusory allegation to sustain factual issues). The second prong of the minimum contact test therefore fails.
c. Jurisdiction Is Not Reasonable
Plaintiff?s opposition regarding the reasonableness of jurisdiction ignores one significant factor, that is, that Plaintiff has the burden of establishing that jurisdiction is reasonable. Kumarelas v. Kumarelas, 16 F.Supp.2d 1249, 1253 (D.Nev. 1998). It is undisputed that the alleged postings of Defendant Mitchell were sent from the State of Connecticut to individuals in states other than Nevada. It is also undisputed that Defendant Mitchell does not live, work or own property in Nevada. It is highly unusual and unreasonable to exercise jurisdiction under these circumstances. See, CoreVent Corp. v. Nobel Industries, 11 F.3d at 1488. Indeed, the Ninth Circuit has stated that "[t]he smaller the element of purposeful injection, the less is jurisdiction to be anticipated and the less reasonable is its exercise." Id. (emphasis added.)
Plaintiffs claim that it does not have resources to initiate an action in Defendant Mitchell's home state of Connecticut appears to be disingenuous. (Opposition, p. 2.) Plaintiff?s website boasts of its profitable business with over 700 "retail locations" throughout the fifty United States [3]. In contrast, Defendant Mitchell is an individual who has no contacts with Nevada, and does not have the type of corporate resources boasted of by Plaintiff. This attempt to create the unfair burden of expensive long-distance litigation upon Defendant Mitchell heavily militates against jurisdiction. CoreVent Corp. v. Nobel Industries, 11 F.3d at 1487-90 (the unfair burden of long-distance litigation upon the defendant weighed heavily against jurisdiction where there was little or no purposeful availment).
[3] See, footnote 1.
Based on the foregoing, and the arguments previously raised in Defendant Mitchell's Motion regarding the unreasonableness of jurisdiction, the third prong of the minimum contact test fails. Id.
2. Summary
Plaintiff cannot satisfy the minimum contacts test. Exercising jurisdiction over a Defendant, like Mr. Mitchell, who allegedly did nothing more than post Internet messages to individuals outside the forum, would violate "traditional notions of fair play and substantial justice." Cybercell, Inc. v. Cybercell, Inc., 130 F.3d at 415. As the Ninth Circuit has noted, no court has ever exercised personal jurisdiction over a defendant in these circumstances. Panavision International v. Toeppen, 141 F.3d at 1321. Mr. Mitchell cannot be subjected to jurisdiction in a forum with which he has no contact. Id.
C. CASE LAW TO SUPPORT THAT CHALLENGING EVIDENCE
DOES NOT SUBMIT A DEFENDANT TO JURISDICTION OF THE COURT
Defendants can assert substantive defenses under Rule 12 without impliedly consenting to the Court's personal jurisdiction:
The Federal Rules have abandoned the concepts of "special" and "general" appearances. Now, a defendant can assert jurisdictional defenses, venue defenses, and even substantive defenses under Rule 12 without impliedly consenting to the court's personal jurisdiction. [58]
58. See Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 191 (D.C.Cir.1984); Johnson v. Board of County Comm'rs for County of Fremont, 868 F.Supp. 1226, 1230 n.2 (D.Colo.1994) (noting that technical distinctions between general and special appearances have been abolished). See also Orange Theatre Corp. v. Rayherxtz Amusement Corp., 139 F.2d 871, 874 (3d Cir.) (writing that a defendant "is no longer required at the door of the federal courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power himself to remain outside even while he steps within"), cert. denied, 322 U.S. 740, 84 S.Ct. 1057, 88 L.Ed. 1573 (1944); Dunmars v. City of Chicago, 22 F. Supp. 2d 777, 783 n.6 (N.D. Ill. 1998) commenting that Federal Rules have virtually eliminated distinction between general and special appearances).
Steven Baicker-McKee, et al., Federal Civil Rules Handbook, p. 263-64 (2000).
As regards the fabricated evidence, Defendant finds Plaintiff's assertion that "they are in possession of the Internet posts as originally made" to be laughable. Plaintiff's original rendition of the message in question was a) a textual representation of a message, not a screen print of the actual message itself, allowing Plaintiff to modify said message at will, and b) no URL was provided so that the court may verify for itself the message as it exists now, and has always existed, on the Internet. For reference, said URL is Message 8020831. Had Plaintiff truly been in possession of a version of said message as represented to the Court, Plaintiff would surely have attached it in their Opposition. Plaintiff can not and Plaintiff will not because said message never ever existed as represented to the Court. It is obvious that Council for Plaintiff was negligent for not verifying said evidence actually ever existed and is further negligent for alleging "Defendant possibly in conjunction with an agent of one or more of the Defendant bulletin boards [sic; as of the date of this filing, neither of the named bulletin boards, Silicon Investor nor Raging Bull, had been served and thus are not Defendants]" changed said message without, again, verifying the message as represented to court ever existed in the first place.
D. CONCLUSION
Based on the foregoing, Defendant Mitchell respectfully submits that this Court has no personal jurisdiction over him and that Plaintiff's Complaint must be dismissed, or, alternatively, the Court should dismiss the case because Plaintiff has blatantly and brazenly fabricated evidence against Defendant Mitchell.
DATED this ______ day of May, 2000.
___________________________________
Jeffrey S. Mitchell
Pro Se
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Note: Document copied almost entirely from a filing for D. Tod Pauly submitted by Smith, Larsen & Wixom of Las Vegas, NV. |
