Re: 5/11/00 - [AZNT] Order for Plaintiff to present sworn affidavit of phone calls made to them by D. Tod Pauly; 5/22/00 - Plaintiff's Compliance with Court Order; 6/2/00 - Pauly's Reply
ENTERED AND SERVED
MAY 11, 2000
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
AMAZON NATURAL TREASURES, INC., a Nevada corporation,
Plaintiff,
V.
JANICE SHELL, DEAN DUMONT, D. TOD PAULY, JEFFREY MITCHELL, CYNTHIA DEMONTE, DEMOTE & ASSOCIATES, a New York corporation, SILICON INVESTOR, a Delaware corporation, RAGING BULL, a Delaware corporation, JOHN DOE NO. 1 aka Carl W. Does I through CXIII, and Black Corporations I through XX, inclusive,
Defendants.
CV-S-00-0158-PMP (RLH)
ORDER
Presently before this Court is Defendant D. Tod Pauly's Motion to Dismiss for Lack of Personal Jurisdiction (#10) filed on March 20, 2000. Plaintiff Amazon Natural Treasures, Inc. filed an Opposition (#22) on April 20, 2000. Defendant D. Tod Pauly filed a Reply in Support of Defendant D. Tod Pauly's Motion for Lack of Personal Jurisdiction (#27) on April 28, 2000.
I.
A plaintiff bears the burden of establishing that a federal court has personal jurisdiction over the defendants. See Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). When a defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (2), a plaintiff is "obligated to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction." Amba Marketinq Systems, Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir.1977).
During oral argument held on Thursday, May 4, 2000, counsel for Plaintiff Amazon Natural Treasures, Inc. offered to present evidence that Defendant Pauly had made phone calls to a representative of Amazon Natural Treasures, Inc. in order "to follow up on [allegedly injurious] comments made on the Internet." Such evidence, counsel asserted, would demonstrate the existence of this Court's personal jurisdiction over Defendant Pauly.
IT IS THEREFORE ORDERED that Plaintiff Amazon Natural Treasures, Inc. shall have up to and including May 22, 2000, to present sworn affidavits averring such conduct and additional briefing as a supplement to its Opposition to Defendant D. Tod Pauly's Motion to Dismiss (#22).
IT IS FURTHER ORDERED that Defendant D. Tod Pauly shall have up to and including June 2, 2000, to file a response to any affidavits and arguments submitted by Plaintiff Amazon Natural Treasures, Inc. as a supplement to the Reply in Support of Defendant D. Pauly's Motion to Dismiss for Lack of Personal Jurisdiction (%27).
DATED: May 10, 2000
[signature]
PHILIP M. PRO
United States District Judge
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ROBERT S. QUALEY, ESQ.
Nevada Bar No. 3570
JASON A. AWAD & ASSOCIATES
386 South Eastern Avenue .as Vegas, Nevada 89119
Telephone: 702-732-4141
Attorney for Plaintiff
AMAZON NATURAL TREASURES, INC.
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
AMAZON NATURAL TREASURES, INC., a Nevada corporation,
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 2ARLW DOES I through CXIII, and ~LACK CORPORATIONS I through XX, inclusive,
Defendants.
CV-S-000158-PMP (RLH)
DATE:
TIME:
PLAINTIFF'S COMPLIANCE WITH COURT ORDER
COMES NOW Plaintiff AMAZON NATURAL TREASURES, INC., a Nevada corporation, by and through its attorneys of record, ROBERT QUALEY, with JASON A. AWAD & ASSOCIATES, and attaches hereto sworn Affidavit of Michael A. Sylver, together with supporting documents in opposition to Defendant PAULY's Motion to Dismiss. DATED this 22nd day of May, 2000.
JASON A. AWAD & ASSOCIATES
ROBERT S. QUALEY, ESQ.
Nevada Bar No. 3570
4386 S. Eastern Avenue
Las Vegas, NV 89119
Attorneys for Plaintiff
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AFFIDAVIT OF MICHAEL A. SYLVER
STATE OF NEVADA )
) SS:
COUNTY OF CLARK )
MICHAEL A. SYLVER, being first duly sworn, deposes and says:
l. That I am a resident of Las Vegas, Nevada.
2. That I have full and accurate knowledge of the facts contained herein, save those items represented to be based upon information and belief and I am fully competent to testify to the same in a court of law.
3. On numerous occasions Todd Pauley called Amazon Natural Treasures, Inc. and asked to speak with me.
4. On December 15, 1999, Todd Pualey sent me an ICQ message when on was on-line on my computer. I do not know how Todd Pauley was able to acquire my ICQ number as I never received any ICQ messages from anyone other than specific business associates. I thought it was odd that I would receive an ICQ message from an unknown person. Not realizing at the time who Tonto was, I simply answered the ICQ message: What is a Tonto?
5. Approximately 45 minutes later, I received a telephone call in the Office from Todd Pauley. After I said hello, he asked if he was speaking with Michael Sylver. I said yes and asked who this was? He said: Todd Pauley. He then said why did you not answer my ICQ message - do you have something to hide? I said answer who? He then said "you .... (vulgarity) ...... are all ..... (vulgarity)..We are going to get you ....... (vulgarity).
6. Not appreciating language as such, I immediately hung up the telephone and advised him not to call here again. For the next several weeks, Todd Pauley and Jeffrey Mitchell were continuously calling Amazon Natural Treasures, Inc. and harassing personnel.
7. Subsequently, my ICQ message was talked about and posted on the Amazon Natural Treasures, Inc.'s Internet chat rooms. This was brought to my attention individually and at separate times by Gary Dobry, Michael Kuhns and Jerry Cammarack. A copy of the post is attached hereto as Exhibit 1 specifically incorporated herein.
FURTHER YOU AFFIANT SAYETH NAUGHT.
[signature]
MICHAEL A. SYLVER
Subscribed and sworn to before me
this 19 day of May 2000
Cheryl A. S. Higley
Commission Expires 8/1/00
Notary Public in and for the
County of Clark, State of Nevada
[no seal]
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Note: Attached are 42 pages of e-mail sent from PugsTKO@aol.com to various parties, including manaus@ibm.net, SpiderRico@worldnet.att.net, and rquiel@msn.com. All but one is a cut and paste (as opposed to a screen print) from SI and/or RB; no URLS for the e-mail are provided.
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AFFIDAVIT OF D. TOD PAULY IN SUPPORT OF
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
STATE OF WISCONSIN )
) ss
COUNTY OF MANITOWOC )
TOD PAULY, having been duly sworn, deposes and says:
1. I have personal knowledge of the facts set forth in this Affidavit and, except as otherwise indicated, am competent to testify.
2. I am a resident of the state of Wisconsin.
3. I have read the Affidavit of Michael A. Sylver dated May 19, 2000.
4. I have never telephoned Michael Sylver or any other individual at Amazon Natural Treasures. Mr. Sylver's Affidavit to the contrary is absolutely and unequivocally false.
5. I have attached true and accurate copies of my residential and business telephone records for the period relevant to the allegations made to Mr. Sylver's Affidavit. As these records show, I did not make any telephone calls to Mr. Sylver or Amazon Natural Treasures.
6. I have sent private ICQ e-mail messages to Mr.. Sylver under his e-mail name of "Manaus." These private e-mail messages were dated October 7, 1999, December 13, 1999 and December 15, 1999. A true and accurate copy of the historical printout of these private e-mail messages to Mr. Sylver are attached to my Affidavit. As these private e-mail messages indicate, they congratulate Mr. Sylver and Amazon Natural Treasures and also inquire whether Amazon has retail locations in Wisconsin. These private e-mail messages constitute my complete communication with Mr. Sylver.
DATED this ____ day of May, 2000.
D. TOD PAULY
SUBSCRIBED AND SWORN
to before me this 31st day of May, 2000
[signature]
Notary Public
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HISTORICAL LOG OF
PRIVATE E-MAILS TO MR. SYLVER
ICQ History Log For:
16705144 manaus
Started on Wed May 24 12:20:44 2000
tonto 10/7/99 3:15 PM Do you provide Pug's with all his information, or does he make some of it up?
tonto 12/13/99 11:07 AM Pugs is hurting you, not helping the company. Congrats on moving forward with the GRAS status. It makes sense. Too many lawsuits and not enough business.
tonto 12/15/99 4:56 PM Do you have any retail locations in Wisconsin?
manaus 12/15/99 4:57 PM what is a tonto
tonto 12/15/99 4:57 PM a fool
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MR. PAULY'S PRIVATE TELEPHONE RECORDS
SUBMITTED IN CAMERA - UNDER SEAL
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Exhibit B
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
NEXTECH, INC.,
Plaintiff,
v.
AMAZON NATURAL TREASURES, INC., et al.,
Defendants.
CV-S-98-1622-DWH (LRL)
ORDER
This case comes before the court on plaintiff?s Emergency Application for Contempt Sanctions, for Appointment of a Temporary Receiver, for Injunctive Relief, and for Attorney's Fees and Costs (#47). The court has considered the Emergency Application, the Declaration of Barbara Pino in Support thereof (#47A), defendants' Opposition (#50), the testimony, other evidence, and arguments of counsel presented at the hearing on May 24, 1999, and plaintiffs Affidavits of Attorney's Fees and Costs (#53 and #54). The court has also considered plaintiff's Supplement to Emergency Application for Contempt Sanctions, for Appointment of a Temporary Receiver, for Injunctive Relief, and for Attorneys Fees and Costs (#58i, defendants' Response (#60), plaintiffs Reply (#62), defendants' Notice to Court (#72), and the arguments of counsel presented at the hearing on June 29, 1999. Based on the foregoing, the following order will be entered.
This dispute is the climax of plaintiff's efforts to secure defendant Michael A. Sylver's compliance with the January 14, 1999 order of the Honorable David W. Hagen, U.S. District Judge, directing the unrestricted transfer of 224,000 shares of Amazon stock to Nextech. At long last, but not before the court was required to conduct two separate contempt proceedings, Amazon and Michael Sylver complied with, Judge Hagen's order on June 23, 1999, thereby purging themselves of contempt.
Two matters remain for consideration. First, Nextech seeks reimbursement for the fees and costs defendants' obstreperous conduct forced it to incur. Second, Nextech requests that the court refer this matter to the United States Attorney to consider filing perjury charges against Mr. Sylver and Jean Ricciardi.[1] As to the latter request, the court has serious reservations about the viability of a perjury prosecution, and therefore declines to make the referral. This is not to say, however, that the court is unmindful of the 'defendants' transparent attempts to mislead the court and to delay compliance with Judge Hagen's order. Defendants' obstructive conduct will weigh heavily in the court's determination of the extent to which defendants should be required to reimburse Nextech for the legal bills it incurred in connection with its efforts to bring about defendants' compliance. Accordingly, and with good cause appearing,
[1] Inasmuch as the relief now sought by Nextech is neither case dispositive nor a judgment of contempt, neither a report and recommendation under 28 U.S.C. õ 636(b)(1)(B) nor a certification under õ 636(e) is required.
IT IS ORDERED that Nextech's Emergency Application for Contempt Sanctions, for Appointment of a Temporary Receiver, for Injunctive Relief, and for Attorney's Fees and Costs (#47) is granted to the following extent: defendants shall, not later than July 16, 1999, pay to counsel for Nextech the sum of $40,000 as the attorney?s fees and costs incurred in obtaining compliance with Judge Hagen's order.
DATED this 30th day of June, 1999.
[signature]
LAWRENCE R. LEAVITT
UNITED STATES MAGISTRATE JUDGE |
