Re: 3/28/00 - [AZNT] DEFENDANT JEFFREY S. MITCHELL'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FABRICATION OF EVIDENCE
Jeffrey S. Mitchell
In proper person
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. )
__________________________________________ )
DEFENDANT JEFFREY S. MITCHELL'S MOTION TO
DISMISS FOR LACK OF PERSONAL JURISDICTION
AND FABRICATION OF EVIDENCE
Pursuant to Fed. R. Civ. P. 12(b)(2), Defendant Jeffrey S. Mitchell ("Mr. Mitchell"), hereby moves to dismiss Plaintiff's Complaint on grounds that this Court lacks personal jurisdiction over him. Mr. Mitchell also moves to dismiss Plaintiff's Complaint on grounds that he was never served a Summons along with the Complaint. Lastly, Mr. Mitchell also moves to dismiss Plaintiff's Complaint on grounds the Plaintiff fabricated evidence cited to be used against him. This Motion is made and based upon the attached Memorandum of Points and Authorities, the attached Affidavit of Mr. Mitchell, all pleadings and papers on file in this case, and upon such other evidence as may be presented at any hearing conducted by the Court.
DATED this ______ day of March, 2000.
___________________________________
Jeffrey S. Mitchell
In proper person
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Plaintiff Amazon Natural Treasures, Inc. ("Amazon") alleges that various defendants, including Mr. Mitchell, have posted messages on specific Internet websites that have caused a decrease in Amazon's stock price. (Complaint, pp. 17-18.) Amazon claims that these website messages were false and has asserted claims for defamation, libel, and tortious interference. (Id., p. 1.) Amazon also seeks a preliminary injunction prohibiting the defendants from posting similar messages in the future. (Id.)
Mr. Mitchell was not served with a Complaint until February 26, 2000. No Summons was ever served. Mr. Mitchell has been informed that a hearing date of April 4, 2000 has been scheduled on the preliminary injunction motion. Mr. Mitchell respectfully submits that this Court has no jurisdiction over him and that, in any event, Mr. Mitchell was served 10 days after the court deadline of February 16, 2000 for service for inclusion in this hearing. Mr. Mitchell also respectfully submits that the preliminary injunction hearing should not occur until this jurisdictional issue has been decided.
II. FACTUAL BACKGROUND
Amazon's only allegations regarding Mr. Mitchell is that he allegedly posted messages on the Internet via the Silicon Investor and Raging Bull websites. (Id., pp. 39-40 and Exhibits 6 and 7.) Amazon does not allege that any of these messages were directed or aimed at anyone in Nevada. (See, Id.) Rather, the messages were allegedly sent from Mr. Mitchell in Connecticut to the remaining defendants in states such as Wisconsin and New Hampshire. (Id., pp. 24-25.)
Mr. Mitchell lives and is domiciled in Connecticut. He is not authorized to do business in Nevada and has never conducted any business activities in Nevada. He does not maintain a bank account, telephone listing, or agent in Nevada. Nor does he rent, own, use, or possess any real or personal property in Nevada. Moreover, Mr. Mitchell has never directed any message, regarding Amazon, to anyone in Nevada via Silicon Investor or Raging Bull. Thus, Mr. Mitchell has no connection with the State of Nevada, and the Complaint against him must be dismissed. (See, Affidavit of Jeffrey S. Mitchell, attached hereto as Exhibit A.)
III. LEGAL ARGUMENT FOR LACK OF PERSONAL JURISDICTION
A. NEVADA'S LONG-ARM STATUTE AND DUE PROCESS CONSIDERATIONS DO NOT PERMIT THIS COURT TO EXERCISE PERSONAL JURISDICTION OVER MR. MITCHELL
Personal jurisdiction does not exist over a non-resident, like Mr. Mitchell, unless the plaintiff can establish that it is consistent with: (1) Nevada's long-arm statute; and (2) constitutional principles of due process. See, Kumarelas v. Kumarelas, 16 F. Supp. 2d 1249, 1253 (D. Nev. 1998). In Nevada, this two-part inquiry collapses into a single due process analysis because personal jurisdiction is coextensive with the reach of the Due Process Clause.2 Id. Under this due process analysis, personal jurisdiction exists only where the non-resident defendant has "certain minimum contacts with [the forum state] such that maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Core-Vent Corp. v. Nobel Industries, 11 F.3d 1482, 1484 (9th Cir. 1993).
The "minimum contacts" test must be satisfied in the form of either "general" or "specific" jurisdiction. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 416 (1997). As discussed below, neither general nor specific jurisdiction exists.
1. No General Jurisdiction Exists
The United States Supreme Court has held that general jurisdiction exists only where a defendant is domiciled in the forum state or where his activities there are so "substantial" or "continuous and systematic" that the defendant may be deemed present in the forum and, therefore, subject to suit over claims unrelated to its activities there. See, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984). "The level of contact with the forum state necessary to establish general jurisdiction is quite high." Shute v. Carnival Cruise Lines, 897 F.2d 377, 380 (9th Cir. 1990).
Applying this stringent standard, the Ninth Circuit has held that no general jurisdiction existed over a non-resident who conducted no business in the forum state, maintained no office or bank accounts in the state, paid no taxes in the state, and had no exclusive agents in the state. Id. at 380-81. The Ninth Circuit has also held that no general jurisdiction existed over a nonresident doctor even though the doctor had numerous patients in the forum state, used the forum state's medical insurance system and telephone directory listings to reach those patients, and solicited patients via these directories in the forum state. Congeleum Corp. v. DLW Aktiengesellschaft, 729 F.2d 1240, 1242-43 (9th Cir. 1984).
Here, Mr. Mitchell neither lives nor is domiciled in Nevada. He does not, and has not, conducted any business in Nevada. Nor does he own or use any property in Nevada. Thus, as a matter of law, no general jurisdiction exists over Mr. Mitchell. Id.
2. No Specific Jurisdiction Exists
Specific jurisdiction only exists where the cause of action arises from the defendant's contacts with the forum. Firouzabadi v. First Judicial District Court of the State of Nevada, 885 P.2d 616, 618 (Nev. 1994). The Ninth Circuit applies a three-part test to make this determination: (1) the defendant must have done some act by which it purposefully avails itself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of the forum's laws; (2) the claim must arise out of the defendant's forum-related activities; and (3) the exercise of jurisdiction must be reasonable. Ballard v. Savage, 65 F.3d 1495, 1497 (9th Cir. 1995); Terracom v. Valley National Bank, 49 F.3d 555, 559 (9th Cir. 1995). As discussed below, Amazon cannot satisfy these three elements.
a. Mr. Mitchell Has Not Purposefully Availed Himself of the Privilege of Conducting Activities in Nevada
The "purposeful availment" test ensures that a non-resident defendant will not be hauled into court based on random, fortuitous or attenuated contacts with the forum state or upon the unilateral activity of another party or third person. Kurnarelas v. Kurnarelas, supra, 16 F. Supp. 2d at 1253. Instead, it requires that the defendant must have "taken deliberate action" toward the forum state. Ballard v. Savage, 65 F.3d at 1498.
In the context of Internet activity, the "purposeful availment" test requires that the defendant must have purposefully directed his electronic activity in a "substantial way" to the forum state. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997). In Cybersell, a Florida defendant posted advertisements on the Internet under the trademark of the plaintiff, an Arizona corporation. The defendant's Internet messages were not directed to anyone in a particular state but, rather, were accessible to Interact users across the country -- including users in the forum state of Arizona. The Plaintiff then filed a federal lawsuit in the District of Arizona alleging, among other claims, fraud and trademark infringement. The trial court subsequently granted the defendant's motion to dismiss for lack of personal jurisdiction. 130 F.3d at 416.
The Ninth Circuit Court of Appeals upheld the trial court's decision, holding that jurisdiction did not exist merely because the defendant's Internet messages were accessible to the forum residents. Id. at 415. Rather, the Court held that there needed to be "something more" to indicate that the defendant purposefully directed his Internet messages "in a substantial way to the forum state." Id. at 418. In this regard, the Court noted that none of the Internet messages at issue were ever sent by the defendant to anyone in Arizona. Id at 419. The Court therefore held that "it would not comport with 'traditional notions of fair play and substantial justice'" to exercise personal jurisdiction over a non-resident defendant who did not purposefully direct his Internet activity to the forum state. Id. at 415-18.
The Cybersell Court based its ruling on Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997). In Bensusan, the non-resident defendant posted information on a general access website using a name that was trademarked by the plaintiff in the forum state. The defendant's Internet postings were not directed or targeted toward anyone in the forum state, although they were accessible nationwide on the Internet. The non-resident defendant then filed a motion to dismiss for lack of personal jurisdiction. The trial court granted this motion and the appellate court affirmed. In its holding, the trial court held that the defendant did not purposefully avail itself to the forum state because the Internet postings were "not ...purposefully directed toward the forum state." 937 F. Supp. at 301.
Finally, in Core-Vent Corp. v. Noble Industries, 11 F.3d 1482 (94 Cir. 1993), the Ninth Circuit 'also held that no personal jurisdiction existed where alleged defamatory information was not purposefully directed toward anyone in the forum state. In Core-Vent Corp., non-resident defendants published articles in a medical journal that was circulated world-wide. The plaintiff, a California corporation, alleged that the information was defamatory and that its harmful effects were felt in California. However, there was no evidence that California was a "primary audience" of the information, or that the defendants purposefully directed the information to California. As a result, the Ninth Circuit held that jurisdiction did not exist because the articles were not "expressly directed" toward anyone in the forum state. Id. at 1486.
Here, Mr. Mitchell did not direct the alleged messages on the Silicon Investor website toward anyone in Nevada. (See, Complaint, pp. 24-25, and Exhibits 6 and 7 attached thereto.) Thus, "it would not comport with 'traditional notions of fair play and substantial justice'" to exercise personal jurisdiction over Mr. Mitchell when none of the alleged website messages were directed to anyone in this forum. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d at 415-18; see also, Core-Vent Corp. v. Noble Industries, 11 F.3d at 1486; Bensusan Restaurant Corp. v. King, 937 F. Supp. at 301. The purposeful availment test therefore fails, and Mr. Mitchell's motion must be granted.
b. Plaintiff's Claims Against Mr. Mitchell Do Not Arise Out of Mr. Mitchell's Contacts with Nevada
The second requirement for specific jurisdiction is that the claim asserted must arise out of the defendant's forum related activities. Ballard v. Savage, 65 F.3d at 1500; Terracom v. Valley National Bank, 49 F.3d at 560. In this regard, the Ninth Circuit has adopted a "but for" test to determine whether a particular claim arises out of forum-related activities, Id.
Amazon cannot satisfy this requirement. First, as has been established, Mr. Mitchell has not conducted any activities in Nevada. He does not reside, work, or own property of any type in Nevada. Nor were the alleged website postings purposefully directed toward anyone in Nevada. Since Mr. Mitchell had no forum-related activities, there cannot be any claim arising out of this void of activity. Moreover, even if Mr. Mitchell had conducted forum-related activities, it cannot be said, without relying upon speculation and conjecture, that the alleged harm would not have occurred "but for" these alleged activities. The second requirement for specific jurisdiction therefore fails. Id.
c. Specific Jurisdiction Over Mr. Mitchell Is Not Reasonable
Whether specific jurisdiction is reasonable is dependent upon seven factors: (1) the extent of the defendant's purposeful availment; (2) the burden on the defendant in defending in the forum state; (3)the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Terracom v. Valley National Bank, 49 F.3d at 561. These factors must be balanced and no one factor is dispositive. Id.
These factors do not favor jurisdiction. First, even assuming that the purposeful availment requirement could be satisfied, its extent would be minimal because the alleged messages were purportedly directed towards individuals in states other than Nevada. Second, the burden to Mr. Mitchell, and the remaining individual defendants, of traveling long distances from their homes, family, and work in order to litigate this matter in Nevada would be unduly oppressive. Certainly, the burden of long-distanced litigation would be less burdensome on Amazon, as a corporate plaintiff, that it would be on the individual defendants. Third, the extent of the conflict with the sovereignty of Mr. Mitchell's home state of Connecticut is substantial. The alleged activities of Mr. Mitchell occurred in Connecticut. To exercise jurisdiction over alleged activities that occurred in Connecticut, and which were allegedly directed towards individuals located in states other than Nevada, would be an unconscionable violation of "traditional notions of fair play and substantial justice." Fourth, it is difficult to understand how the State of Nevada could have any interest in adjudicating claims regarding non-resident individuals allegedly communicating to each other outside of Nevada. Fifth, judicial economy favors a forum where the individual defendants live and where the alleged communications occurred, Another forum would substantially reduce travel and other expenses during discovery and trial. Finally, the existence of alternative forums is apparent because jurisdiction would likely exist in Connecticut and possibly in the states of the remaining defendants as these are the forums where the alleged communications occurred. Thus, each of the relevant factors establish that exercise of jurisdiction in Nevada would be unreasonable. Id.
In sum, the three-prong test of specific jurisdiction fails.
IV. LEGAL ARGUMENT FOR FABRICATION OF EVIDENCE
Amazon has attached to its complaint a few examples chosen from posts Mr. Mitchell has contributed to the Silicon Investor Amazon Natural Treasures message board (see Exhibits 6 and 7). Some of these examples appear to be screen prints, which cannot easily be altered, while others appear to be texts cut from the original online posts and pasted to a word processing program. In the latter case, potential problems are compounded by the lack of an Internet address for the original message.
The last two pages of Exhibit 7 are identical: a textual representation -- not a screen print -- of a message purportedly written by Mr. Mitchell on February 15, 1999 and posted to the Silicon Investor website. The last five lines of the message, beginning with "Hogger how do you fell [sic] selling poison pills that..." have been added by parties unknown on behalf of Plaintiff in a blatant attempt to fabricate evidence against Mr. Mitchell. The original message may be viewed at Message 8020831. An affidavit from Silicon Investor attesting that the message currently displayed on Silicon Investor is the original and only version of it is attached hereto as Exhibit B.
V. CONCLUSION
Based on the foregoing, Defendant Jeffrey S. Mitchell respectfully requests that its Motion to Dismiss for Lack of Personal Jurisdiction and Fabrication of Evidence.
DATED this ______ day of March, 2000.
___________________________________
Jeffrey S. Mitchell
In proper person
=====
Note: Document copied almost entirely from a filing for D. Tod Pauly submitted by Smith, Larsen & Wixom of Las Vegas, NV. |
