On May 14, 2007, e360Insight LLC and David Linhardt filed a state court action in Cook County Circuit Court (Civil Division) against Mark Ferguson, Susan Wilson (a/k/a Susan Gunn), Rob Saecker (a/k/a Fudo), Rich Tietjens (a/k/a Morely Dotes), William Silverstein, and Tim Skirvin (a/k/a Screwtape III).
Your faithful scribe had been watching Cook County Circuit Court (Chancery Division) instead, and so we apologize for the delay in getting this case to you.
According to at least one press report, this lawsuit is an attempt to prove that the Spamhaus Project does business in the United States. If so, this lawsuit is rather ill-fated.
I probably have more Spamhaus ties than several of the defendants do. Ooo! Maybe that means that Mr. Linhardt will be suing this site next.
Alas, it appears that the star-struck lawsuit is gone with the following entry in the Clerk's docket:
Activity Date: 8/30/2007 Participant: E360 INSIGHT
VOLUNTARY DISMISSAL W/LEAVE TO REFILE-ALLOWED
Judge: QUINN, THOMAS P.
This lawsuit may come back since leave to refile was granted.
Well, here it is in all of its cookie-cutter glory.
What happened here is that e360's attorneys took the prior Federal Court case and added a name, butchered Count III, which was originally against only Ferguson and Wilson, so that it now only mentions "Plaintiffs", except for the Prayer where relief is only sought against Ferguson and Wilson.
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
E360INSIGHT, LLC, an Illinois Limited Liability Company, and DAVID LINHARDT, an individual,
Plaintiffs,
v.
MARK JAMES FERGUSON, an individual, SUSAN WILSON A.K.A. SUSAN GUNN, an individual, ROB SAECKER A.K.A. FUDO, an individual, RICH TIETJENS A.K.A. MORELY DOTES, an individual, WILLIAM SILVERSTEIN, an individual, and TIM SKIRVIN A.K.A. SCREWTAPE III, an individual
Defendants.
VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND FOR DAMAGES
Plaintiffs, e360lnsight, LLC (e360) and David Linhardt (Linhardt) (collectively "Plaintiffs"), by and through their attorneys, Synergy Law Group, LLC, for their Complaint against Defendants, Mark James Ferguson, Susan Wilson a.k.a. Susan Gunn, Rob Saecker a.k.a. Fudo, Rich Tietjens a.k.a. Morely Dotes, William Silverstein and Tim Skirvin a.k.a. Screwtape III, (collectively "Defendants"), state as follows:
NATURE OF THE ACTION
1. This is an action by e360, an internet marketing company, and Linhardt, its President, for a preliminary and permanent injunction, as well as damages, against Defendants who have repeatedly made defamatory statements by referring to Plaintiffs as "spammers" and causing Plaintiffs to be listed as "spammers" resulting in their e-mail being blocked from the intended recipients and therefore costing Plaintiffs lost profits.
The statements made by the Defendants constitute defamation per se and the resulting blocking of Plaintiffs' e-mails constitutes tortious interference with a prospective economic advantage. Further, certain Defendants have actively and without justification interfered with existing contracts between Plaintiffs and third parties. This lawsuit seeks to enjoin that behavior and compensate Plaintiffs for the damage that Defendants have caused them.
PARTIES
2. e360 is an Illinois Limited Liability Company located in Wheeling, Illinois, with its principal offices located at 600 Northgate Parkway, Suite A.
3. David Linhardt is an individual who resides at [REDACTED] and is a citizen of Illinois.
4. Mark James Ferguson ("Ferguson") is an individual who resides at [REDACTED].
5. Susan Wilson a.k.a. Susan Gunn ("Susan") is an individual who resides at [REDACTED].
6. Rob Saecker, a.k.a. Fudo ("Fudo") is believed to be a citizen of the United States and residing or working in the State of Washington.
7. Rich Tietjens, aka, Morley Dotes ("Dotes") is believed to be a citizen of the United States and residing at [REDACTED] making him a citizen of Oregon.
8. William Silverstein is an individual residing in Los Angeles, CA.
9. Tim Skirvin a.k.a. Screwtape III ("Skirvin") is an individual who is a citizen of Champaign, IL.
JURISDICTION AND VENUE
10. This Court has jurisdiction over Defendants pursuant to Section 2-209 et seq. of the Illinois Code of Civil Procedure, 735 ILCS 5/2-209(2001), because the Defendants have committed the torts alleged herein in Illinois.
11. Venue is proper in Cook County, Illinois regarding all Defendants pursuant to Section 2-101 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-101 (2001), because all or a substantial part of all the actions and violations committed by the Defendants occurred in Cook County, Illinois, and each defendant transacts business in Cook County, Illinois by posting material to the internet that is available in Cook County, Illinois.
FACTS COMMON TO ALL COUNTS
12. e360 is an e-mail based marketing company whose business practices have, at all times relevant to the allegations in this complaint, complied with, and continue to comply with all federal and state requirements and standards pertaining to the sending of commercial e-mail, including the Controlling the Assault ofNon-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. § 7701 (CAN-SPAM).
13. e360 is hired by and partners with companies that wish to market their products or services using the internet. This marketing is targeted to persons "opting in" to a list whereby they agree to accept e-mail announcements. These persons sign up at lists owned by e360 or its business partners, some of which are then verified through a "double opt-in" process.
14. e360 does not engage in "spamming", which is essentially the digital equivalent of sending junk mail that is neither asked for nor wanted. Unlike anyone engaged in spamming, the internet marketing in which e360 engages employs a variety of permission processes that e360 controls, and that its marketing partners use, to obtain permission and consent from, and provide notice to, the consumers that receive the e-mail messages.
15. Plaintiffs have valid contracts with various third-parties to send e-mail on behalf of the third-parties.
16. Defendants are aware that Plaintiffs are in the business of sending e-mail and that Plaintiffs contract with third-parties to send e-mail on their behalf.
17. Defendants' repeated postings on internet websites that Plaintiffs are spammers has caused Plaintiffs to be blacklisted and have their e-mails blocked as Spam.
18. Defendants intentionally post that Plaintiffs are spammers with the intent that Plaintiffs' a-mails will be blocked as spam, causing Plaintiffs' clients to cease business with Plaintiffs.
19. Plaintiffs have lost clients and business opportunities as a result of Defendants' postings that Plaintiffs are spammers which resulted in Plaintiffs being blacklisted and prevented Plaintiffs from sending e-mails.
20. Plaintiffs have suffered damages as a result of Defendants' tortious interference with their prospective business opportunities.
21. Defendants have submitted Plaintiffs email message(s) to third-party blacklist and reputation monitoring services, like www.spamhaus.org, and have represented that Plaintiffs' email messages are spam with the intent that Plaintiffs' e-mails will be blocked as sparn, causing Plaintiffs' clients to cease business with Plaintiffs and causing Plaintiffs' suppliers to cease business with Plaintiff.
Count I
Defamation Per Se Against All Defendants
1-21.Plaintiffs restates and realleges paragraphs I through 21 above as paragraphs 1-21 of Count I.
22. Defendants have repeatedly referred to Plaintiffs as spammers through various online postings that can be accessed in the state of Illinois via the internet.
23. Defendants' references to Plaintiffs as spammers constitute defamation per se because it is a violation of Federal law to send Spam e-mail messages.
24. Defendants should be enjoined from making any further defamatory postings concerning the Plaintiffs.
WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment on their behalf and against Ferguson, Susan, Fudo, Skirvin and Chien and to award Plaintiffs an amount in excess of $50,000 to compensate Plaintiffs for Defendants' defamatory statements concerning Plaintiffs, an award of punitive damages for the defamatory statements and for injunctive relief barring Defendants from posting or otherwise putting on the internet that Plaintiffs are spammers and for any other relief that this Court deems just.
Count II
Tortious Interference With A Prospective Business Advantage Against All Defendants
1-21. Plaintiffs restates and realleges paragraphs 1 through 21 above as paragraphs 1-21 of Count II.
22. Defendants have forwarded e-mails received from Plaintiffs or Plaintiffs affiliates to e-mail blocking entities with the intent to have Plaintiffs' e-mail blocked as Spam.
23.Defendants are aware that Plaintiffs are in the business of marketing through the use of e-mail and that Plaintiffs contract with third parties to send e-mail.
24. Defendants sent e-mails received from Plaintiffs to e-mail blocking entities with the intention of having e-mail sent by Plaintiffs blocked and thus interfered with Plaintiffs business and prospective business opportunities.
25. Plaintiffs have lost business and business opportunities as a result of Defendants sending of e-mails received from Plaintiffs to e-mail blocking entities and the resulting blocking of Plaintiffs e-mails.
26. Plaintiffs lost business has resulted in lost income to Plaintiffs.
WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment on their behalf and against all Defendants and to award Plaintiffs an amount in excess of $50,000 to compensate Plaintiffs for Defendants' intentional interference with Plaintiffs' prospective economic advantage, punitive damages for Defendants' willful conduct and for any other relief that this Court deems just.
Count III
Tortious Interference With A Contract Against All Defendants
1-21. Plaintiffs restates and realleges paragraphs 1 through 21 above as paragraphs 1-21 of Count III.
22. Plaintiffs have contracts with third parties to provide the necessary bandwidth to send their e-mails.
23. Defendants know that Plaintiffs have contracts with third parties to provide bandwidth to Plaintiffs.
24. Defendants have sent e-mail received from Plaintiffs to e-mail blocking entities alleging that Plaintiffs are spammers with the intention the Plaintiffs' e-mail would be blocked as spam and that Plaintiffs' service providers would cease to provide bandwidth to Plaintiffs.
25. Certain third party service providers have terminated their contracts to provide bandwidth to Plaintiffs as a result of Defendants' intentional interference with Plaintiffs' contracts.
26. Plaintiffs have suffered damages as a result of their third party service providers terminating their contracts with Plaintiffs.
WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment on their behalf and against Ferguson and Susan and to award Plaintiffs an amount in excess of $50,000 to compensate Plaintiffs for Defendants' intentional interference with Plaintiffs' contracts, punitive damages for the willful conduct of Defendants and for any other relief that this Court deems just.
27. Plaintiffs request a jury trial.
Respectfully submitted,
E3601nsight, LLC. and David Linhardt
By:
Bartly J. Loethen Daniel J. Peters
Synergy Law Group, LLC 730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone:(312) 454-0015
Facsimile:(312) 454-0261
VERIFICATION
Under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.
Sworn to and subscribed before me
A Notary Public, this 31st day of April, 2007.
OFFICIAL SEAL
KATHLEEN M SMITH
NOTARY PUBLIC -STATE OF ILLINOIS
MY COMMISSION EXPIRES:02/16/09
Here are the official notices of appearance in this case.
Mark Ferguson comes out of the gate with a Motion to Dismiss. A special appearance allows him to argue that motion without generally acceding to the Court's jurisdiction.
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
E360INSIGHT, LLC, an Illinois Limited Liability Company, and DAVID LINHARDT, an individual,
Plaintiffs,
v.
MARK JAMES FERGUSON, an individual, SUSAN WILSON A.K.A. SUSAN GUNN, an individual, KELLY CHIEN, an individual, ROB SAECKER A.K.A. FUDO, an individual, RICH TIETJENS A.K.A. MORELY DOTES, an individual, WILLIAM SILVERSTEIN, an individual, and TIM SKIRVIN, an individual
Defendants.
MOTION FOR EXPEDITED DISCOVERY
Plaintiffs, e360lnsight, LLC (e360) and David Linhardt ("Linhardt") (collectively "Plaintiffs"), by and through their attorneys, Synergy Law Group, LLC, for their request for expedited discovery pursuant to Supreme Court Rule 201(d), state as follows:
1. Plaintiffs have been victimized by a computer hacker. The hacker gained access to Plaintiffs' servers and sent out unauthorized e-mails containing pornographic content to customers of Plaintiff's client. Plaintiff also has reason to believe the hacker copied intellectual property owned by Plaintiff including click tracking code, Plaintiff's IP addresses and Plaintiff's email list of consumer email addresses and other personally identifiable information.
2. Based on information and belief, the hacker gained unauthorized access to Plaintiffs' servers. The hacker logged into the Plaintiff's servers approximately fifteen (15) times. While connected to Plaintiff's servers, the hacker accessed Plaintiff's email application server and took approximately 952 separate actions. These actions included modifying email message content by changing the text contained in email messages. The hacker also substituted Plaintiff's client's benign marketing images with pornographic images. Once the pornographic images were added by hacker, the hacker sent email messages containing the pornographic images to approximately 297,000 of the Plaintiff's client's customers. At the time the hacker was connected to Plaintiffs servers, the hacker was connected to the Internet using the following IP addresses and at the following times:
a. 216.190.249.109 - [15/Apr/2007:23:24:15 - 0500]
b. 216.190.249.117 - [17/Apr/2007:10:02:23 - 0500]
c. 216.190.249.121 - [18/Apr/2007:23:15:29 - 0500]
d. 216.190.249.126 - [20/Apr/2007:10:13:31 - 0500]
e. 216.190.249.134 - [22/Apr/2007:11:43:57 - 0500]
f. 216.190.249.135 - [22/Apr/2007:15:06:10 - 0500]
g. 216.190.249.136 - [15/Apr/2007:14:25:51 - 0500]
h. 216.190.249.139 - [20/Apr/2007:22:18:57 - 0500]
i. 216.190.249.35 - [21/Apr/2007:14:44:09 - 0500]
j. 216.190.249.36 - [23/Apr/2007:09:56:22 - 0500]
k. 216.190.249.48 - [13/Apr/2007:20:27:19 - 0500]
l. 216.190.249.61 - [23/Apr/2007:19:44:07 - 0500]
m. 216.190.249.81 - [23/Apr/2007:21:55:47 - 0500]
n. 216.190.249.84 - [21/Apr/2007:04:39:15 - 0500]
o. 216.190.249.95 - [21/Apr/2007:01:42:33 - 0500]
3. Based on information and belief, Electric Lightwave, Inc. has control of the IP addresses identified in ¶ 4 a-o.
4. Based on information and belief, Electric Lightwave, Inc. is able to provide the name and address of any individual who gained access to the internet through the IP addresses identified in ¶ 4 a-o.
5. Plaintiffs believe that the hacker may be one of the individual defendants named in the above-captioned matter.
6. Plaintiffs are in need of expedited discovery because they are unsure as to how long Electric Lightwave, Inc. will retain information regarding the IP addresses identified in ¶4 a-o.
WHEREFORE, Plaintiffs request that this Court enter and Order granting Plaintiffs' request for expedited discovery and for any other relief the Court deems just.
Respectfully submitted,
Bartly J. Loethen
Daniel J. Peters
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
E360INSIGHT, LLC, an Illinois Limited Liability Company, and DAVID LINHARDT, an individual,
Plaintiffs,
v.
MARK JAMES FERGUSON, an individual, SUSAN WILSON A.K.A. SUSAN GUNN, an individual, RICH TIETJENS A.K.A. MORELY DOTES, an individual, WILLIAM SILVERSTEIN, an individual, and TIM SKIRVIN A.K.A. SCREWTAPE III, an individual
Defendants.
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NOTICE OF MOTION
TO: SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on June 1, 2007 at 9:30 a.m. or as soon thereafter as counsel may be heard,'jthe undersigned will appear before the Honorable Thomas P. Quinn in Courtroom 2202 of the Richard J. Daley Center, Chicago, Illinois, and then and there present Plaintiffs Motion For Expedited Discovery, a copy of which is attached hereto and hereby served upon you.
CERTIFICATE OF SERVICE
The undersigned, a non-attorney, certifies that she caused a copy of the attached Plaintiff's Motion For Expedited Discovery to be served upon the above named parties, via US Mail from Chicago, Illinois before 5:00 p.m. on May 23, 2007.
Bartly J. Loethen
Daniel J. Peters
Synergy Law Group, L.L.C.
730 West Randolph, 6th Floor Chicago, IL 60661
312.454.0015
Cook County # 38398
SERVICE LIST
Mark James Ferguson
[redacted]
Susan Wilson
[redacted]
Rob Saecker
[redacted]
Rich Tietjens
[redacted]
William Silverstein
[redacted]
Tim Skirvin
[redacted]
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
E360INSIGHT, LLC, an Illinois Limited
Liability Company, and DAVID LINHEART, an individual,
Plaintiffs,
v.
MARK JAMES FERGUSON, an individual,
SUSAN WILSON A.K.A. SUSAN GUNN, an individual,
ROB SAECKER A.K.A. FUDO, an individual, RICH TIETJENS
A.K.A, MORELY DOTES, an individual, WILLIAM SILVERSTEIN,
an individual, and TIM SKIRVIN, an individual
Defendants.
DEFENDANTS' MOTION TO DISMISS PURSUANT TO 735 ILCS 2-619 AND 735 ILCS 2-613
NOW CONES Defendant, MARK JAMES FERGUSON, pro se defendant, and request this Honorable Count to dismiss Plaintiff's action. In support of his motion, moving party states as follows:
I.
BACKGROUND AND PROCEDURAL HISTORY
According to the complaint, on May 11, 2007, Dave Lirthardt [Linhardt] and E360Insight [e360] allege they have been damaged by "repeated postings on internet websites that Plaintiffs are spammers" by Defendant Plaintiffs make three claims and make these claims against all defendants in their complaint: Defamation Per Se; Tortious Interference with a Prospective Business Advantage; and Tortious Interference with a Contract.
Defendant denies his activity was unlawful or improper and asserts that all his publications to be truthful and accurate.
II
PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION
In personam jurisdiction (or personal jurisdiction) is the power of a court to adjudicate the personal legal rights of parties properly brought before it.
Due process of law requires appearance or service of process (notice of pendency of the lawsuit) before the defendant can be personally bound by any judgment and a person is subject to in personam jurisdiction on any of the following:
1) Presence, i.e., physically present in the forum jurisdiction while being served with a copy of the summons and complaint, (Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L..Ed. 565 (1877)).
2) Residency. (Milliken v. Meyer, 311 U.S, 457, 61 S.Ct. 339, 85 L,Ed. 278 (1940).)
3) Consent to personal jurisdiction.
4) Minimum Contacts. (International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct, 154, 90 L.Ed. 95 (1945))
Having sufficient dealings or affiliations with the forum jurisdiction which make it reasonable to require the defendant to defend a lawsuit brought in the forum state. The due process clause does not permit a state to exercise personal jurisdiction over an individual or corporation with which the state has no contacts, ties or relations,.
Defendant meets none of the requirements for in personam jurisdiction and does not consent to Illinois jurisdiction.
III
PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED FOR LACK OF SPECIAL JURISDICTION
Defendant resides and accesses a computer in Washington, through a computer located is Santa Rosa California where Sonic.net has its data center. (Exhibit "1," attached to the Declaration of Mark Ferguson in Support of the Motion.)
Plaintiff uses an Illinois computer to access Google's Usenet tools which are located at Google's data center in Califomia, (Exhibit "2" attached to the Declaration of Mark Ferguson in Support of the Motion.)
None of the alleged acts occurred in IIlinois, so Illinois does not have subject matter jurisdiction (International Shoe Co, supra; Borden Chemicals, 512 Ill. App, 3d at 41, 726 N.E.2d at 78.)
"when a suit, neither arises from nor relates to a defendant's activities within the state where suit has been filed, the court is limited to exercising general jurisdiction over the out-of state defendant."
Further Plaintiffs have not alleged any Third parties in Illinois have viewed alleged posts and simply being accessible in Illinois is not a basis for jurisdiction. (Howard v. Missouri Bone and Joint Center, Inc., No. 05-476, --- N.E.2d --- , 2007 WL 1217855 Ill. App, 5th Dist. (2007).) To require that all Internet posting subjects the writer to every jurisdiction in the world would chill the exercise of free speech on the Internet.
IV.
PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED FOR LACK OF GENERAL JURISDICTION
For this Court to claim general jurisdiction over any Defendant that Defendant would have to meet at least one of the following legal bases.
1) Defendant would have to be conducting or had conducted "systematic and continuous" business in Illinois presently or at the time of the complaint.
2) Defendant would have to be conducting or had conducted a large volume of interstate business for Defendant created through agent(s) in Illinois.
3) Defendant and or its agents would have to be receiving or had to have received the protection of the laws of Illinois.
4) Defendant would have to have or had permanent agents established in Illinois.
Defendant meets none of the above requirements for general jurisdiotion.
V.
DEFENDANT REQUESTS THAT THIS COURT MAKE A PRELIMINARY INQUIRY INTO THIS CASE
The presiding judge must perform due diligence within their court prior to making a 'claim to jurisdiction to avoid doing undue harm to out of state Defendants who contests jurisdiction. This is done to insure that acts or omissions that form the basis of a cause of action are true and accurate or if that complaint is patently without merit.
Defendant respectfully requests this Court make such an inquiry. (Wiedemann v. Cunard Line Ltd., 63 Ill.App.3d 1023, 1030.)
VI.
ALTERNATIVELY, DEFENDANT ASSERTS THAT VENUE IS IMPROPER
This request to dismiss for improper venue is not a matter of simply being an "inconvenient forum" but a matter of justice. Defendant has no ties to Illinois, resides approximately twenty-four hundred [2,400] miles away and no less than six [6] states away. Being forced to mount a defense from such a distance would be unfair to the Defendant. (Bell v. Louisville & Nashville R. R. Co., (1985), 106 IIl.2d 135)
VII
CONCLUSION
The newsgroup net.admin.net-abuse.email. [NANAE] is essentially a public forum much the same as any town hall .meeting is a public forwn where individuals can offer their opinions and views and was created for the sole intention of tracking, down those that abuse email "for Network Administrators for Network Abuse by Email".
Plaintiff barged in frequently to this public forum and intentionally posted to it with the sole intent to disrupt the meeting no less than one-hundred and ninety three [193] times, (Exhibit "3," attached to the Declaration of Mark Ferguson in Support of the Motion.) When participants finally had enough and reacted, Plaintiffs's response was to file litigation to quell the free speech enjoyed by all participants of NANAE. The Defendant was merely responding to the intentional provocation of Plaintiffs posts and spams. The Defendant believes participants of NANAE should be offered the same first amendment rights and protections as any speaker when they attend a public forum intended for the discussion of public interests.
Defendant has identified Plaintiffs' email as "spam". These spams are deceptive, unsolicited and sent in bulk as Plaintiffs' Motion for Expedited Discovery clearly shows. Plaintiffs in their, complaint wrongfully claim spam to be unlawful attempting to justify their first cause of action. Legitimate "spam" conforms to federal and state laws and is not unlawful simply by nature of being spam. However, in this case, Plaintiffs' spam does not conform to legal requirements and therefore is unlawful as defined the Federal Can Spam Statute and the consumer protection act, chapter 19.86 TRW for Washington State. Allowing this case to continue would provide a real advantage to the Plaintiffs and be unfair to Defendant and the Defendant has the right to comment on the bulk nature of Plaintiffs' spams.
In any case, Plaintiff's spams are unlawful so Defendant's statements were truthful.
Mark James Ferguson Respectfully submitted,
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
E360INSIGHT, LLC, an Illinois Limited
Liability Company, and DAVID LINHARDT,
and individual,
Plaintiffs,
v.
MARK JAMES FERGUSON, an individual,
SUSAN WILSON A.K.A. SUSAN GUNN, an
individual, ROB SAECKER A.K.A. FUDO, an
individual, RICH TIETJENS A.K.A.
MORELY DOTES, an individual, WILLIAM
SILVERSTEIN, an individual, and TIM
SKIRVIN, an individual
Defendant’s.
DECLARATION
I Mark James Ferguson declare and state:
1. My name is Mark James Ferguson and I am a Defendant in this action. I make this declaration in support of Defendant’s Motion to Dismiss. The facts set out below are known to me personally and if called on I could testify to those facts under oath.
2. I am not now nor have I ever been a resident of Illinois.
3. I do not now nor have I ever owned, used or possessed any property, real or imagined in Illinois, I do not now nor have I ever paid taxes in Illinois, I do not now nor have I ever held or maintained a bank account with an Illinois state bank or a bank located within Illinois.
4. I am not now nor have I ever registered to vote in Illinois.
5. I am not now nor have I ever been employed in Illinois or to the best of my recollection ever done business with a company, business, individual or other entity located within Illinois.
6. I do not now nor have I ever had a telephone listing, address listing or postal listing in Illinois.
7. I have never made an appearance in any court for any action under any circumstances within the state of Illinois.
8. I do not now nor have I ever attempted to distribute information to any business, company, individual or other entity within the state of Illinois.
9. Each spam sent by Plaintiff’s violated the Can Spam Statute and Washington State Law.
10. Whew.com is properly registered to Defendant and the registration information reflects the place of ownership as 3831 S Fawcett Avenue, Tacoma, WA 98418 and is publicly available to any individual or entity that has access to the Internet.
11. Defendant has been active in the anti-spam community since 1996 and has nine years of experience with reading headers in both Usenet postings and email. This experience makes it easy for the Defendant to identify the sender of email and the posters of Usenet. It is with this extensive experience in both Usenet and Email tracking that the Defendant can make a positive identification of the emails the Plaintiffs did send and the postings [193] Plaintiff Linhardt made while representing e360 to NANAE. Some of these postings are relevant to this action and are included within this declaration for the Court’s information.
12. Defendant posted to NANAE on January 19, 2007 using the same email address Plaintiff was currently abusing with spam making it known to all the spam was not welcome [Exhibit, 4].
13. Plaintiffs on January 19, 2007 posted in response to defendant’s displeasure acknowledging that his spam was in fact unwanted unwelcome and harassing to the Defendant. [Exhibit, 5]
14. Plaintiffs’ spams continued and increased in frequency and volume almost 150% for the next forty-two [42] days. [Exhibit, 6]
15. Plaintiff makes claim in two separate posts to the Usenet made through Google’s Usenet tools that Defendant signed up to receive his newsletters. Plaintiffs falsely stated the Defendant signed up using an affiliate or associated website whose domain is 123freetravel.com on March 4, 2007. [Exhibit, 7]
16. Under the Federal can spam act plaintiff would have 10 days grace period to remove defendant's e-mail address from all lists. Plaintiff continued to send his unwelcome unwanted and harassing spam until February 23, 2007. The spam volume increased and frequency and quantity as stated above from 1.125 each day to 1.64 a day or an increase of almost 150%.
(4) PROHIBITION OF TRANSMISSION OF COMMERCIAL ELECTRONIC MAIL AFTER OBJECTION-
(A) IN GENERAL- If a recipient makes a request using a mechanism provided pursuant to paragraph (3) not to receive some or any commercial electronic mail messages from such sender, then it is unlawful--
(i) for the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request;
17. Washington Law the state I reside in a very specific in that it requires unsolicited commercial e-mail to have accurate and true header information and not be deceitful as rule of law RCW19.19020. Further it requires the onus on the sender to check the residency of the recipient.
§ 19.190.020. Unsolicited or misleading electronic mail -- Prohibition
(1) No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:
(a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or
(b) Contains false or misleading information in the subject line.
18. Each spam from Plaintiff was from a domain that had hidden and obfuscated domain registration information or the address, telephone and other information not belonging to the Plaintiffs. [Exhibit, 8]
19. IP space and IP allocation information was registered to companies not identified as being owned by the Plaintiffs making it almost impossible to identify the actual sender of the spam. [Exhibit, 9]
20. Each spam contained a mailing address registered to the domain that was not reflected in the domain registration. Addresses had two or more domains or entities registered as the removal address and domains had two or more addresses for removal. [Exhibit, 10] Defendant found this confusing and so no option for email removal was available to him.
I declare under penalty or perjury under the laws of the United States of America that all statements made in this declaration are true and accurate and that this declaration was executed on August 25, 2007.
Mark James Ferguson
This is e360's Response to Ferguson's Motion to Dismiss
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
E360INSIGHT, LLC, an Illinois Limited
Liability Company, and DAVID LINHARDT,
and individual,
Plaintiffs,
v.
MARK JAMES FERGUSON, an individual,
SUSAN WILSON A.K.A. SUSAN GUNN, an
individual, ROB SAECKER A.K.A. FUDO, an
individual, RICH TIETJENS A.K.A.
MORELY DOTES, an individual, WILLIAM
SILVERSTEIN, an individual, and TIM
SKIRVIN, an individual
Defendants.
REPLY BRIEF IN RESPONSE TO OPPOSITION TO MOTION TO DISMISS
NOW COMES Defendant, MARK JAMES FERGUSON, pro se defendant, reply to Plaintiff’s response to Defendant’s Motion to Dismiss, and state as follows:
1. Plaintiff has filed their Response Brief to Defendant’s Motion to Dismiss. The arguments put forth by Plaintiffs have not altered the facts of the case to their advantage nor has their response changed the requirements for this Court to exercise Personal Jurisdiction nor has Plaintiffs’ counsel put forth any valid points that would allow this Court to exercise Personal Jurisdiction under 735 ILCS 5/2-101.
Personal Jurisdiction
2. There are over sixty-thousand newsgroups on Usenet and over one-hundred specific to Illinois and twenty or more specific to Chicago (Exhibit “11,” attached). The Defendant did not post to these newsgroups and instead chose to post to only a single
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newsgroup, news.net,admin-abuse.email, hereafter NANAE whose charter is for the discussion of spammers like the Plaintiffs as the name implies. The posts made by the Defendant were on topic and consistent with the charter for that newsgroup and therefore cannot be considered targeted towards the Plaintiff other than Plaintiffs being the current subject of discussion or targeted towards the forum state.
3. When Plaintiff was made aware that the spam received was unwanted and unwelcome Plaintiff, Dave Linhardt offered to remove Defendant’s email address from Plaintiffs’ lists January 19, 2007 (Exhibit “5,” attached to the Declaration of Mark James Ferguson in Support of the Motion) Plaintiffs simply lied in this statement and continued to spam Defendant for an additional forty-two [42] days. Plaintiffs acknowledge receipt of Defendant’s Letter for Damages dated February 9, 2007 (Exhibit “12,” attached) but the spam from Defendant increased in volume and frequency and continued until February 23, 2007 subsequently followed immediately by a Federal Lawsuit for the exact same claims presented in this Court.
4. When Plaintiff saw what was posted Plaintiffs simply chose to compound their error by fabricating evidence and making false claim that Defendant signed up at some third party site (Exhibit “7,” attached to the Declaration of Mark James Ferguson in Support of the Motion). Plaintiffs' counsel had knowledge that this signup was questionable but chose not to question the validity instead choosing to believe Defendant was lying.
5. Plaintiffs make false claim Defendant signed up using his current IP address [131.191.63.103] on November 29, 2006 at exactly midnight or 00:00:00. The time stamp alone should have alerted any reasonable individual that this was a forgery and I would suggest Plaintiff’s counsel to be of reasonable intellect and perhaps competent and this speaks directly to the character of the Plaintiffs and their motives for filing litigation such as this.
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6. Defendant did inform Plaintiffs' counsel the fact that the IP address in question did not belong to the Defendant until January 12, 2007 at approximately 10:00AM (Exhibit “13,” attached). So unless Defendant can predict future events and what IP address will be assigned to him by a company Defendant does not yet know exists, Defendant simply could not have fabricated the signup and that leaves either Plaintiffs or their scapegoat 123freetravel.com as they have continued to claim to be the origin of the fabrication.
7. The nature of the Defendant's online services with Defendant's primary email, hosting and Usenet services being obtained solely from Sonic.net Inc., in California and Defendant’s broadband access to the Internet being delivered by Advanced Stream, a sub-contractor of the Click-Network! of the city of Tacoma precludes 123freetravel.com of knowing the Defendant's IP address and precludes 123freetravel.com as the source of the fabricated information. The Defendant’s current IP address is only visible in HTTP log files or when Defendant views a website. Defendant viewed Plaintiffs’ multiple sites during the course of his investigation into the 93 spam from Plaintiffs.
8. Plaintiff Dave Linhardt found Defendant’s IP address that only after January 12, 2007 was assigned to my home computer named, cindy.ferguson.betta.products in his log files connected the IP address with me and my spouse and then proceeded to fabricate the signup information and then backdated that fabrication to October 29, 2007 to cover himself in case he was sued for spamming.
9. Only Plaintiff Dave Linhardt had motive, opportunity and most importantly was the only one with the means to fabricate the signup he himself created and then posted to NANAE in an attempt to paint Defendant as an individual that signs up for mailing lists and then complains about them.
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10. Plaintiffs cite Bombliss v. Cornelsen and Keller v. Henderson where the parties had entered into a business relationship prior to any litigation and in Keller v. Henderson the original parties signed a contract to litigate any and all disputes in Illinois.
“The contract further provided that it was "deemed to be made in Illinois" and that Courtesy was acting as an agent for defendant to facilitate the sale of the plane. Additionally, the contract provided that any disputes arising out of the contract "shall be" litigated in Illinois.”
11. Next in Goldhaber v. Kohlenberg, Plaintiff's counsel conveniently leaves out the messages in question were not accessible to any others than the Plaintiff’s peers and therefore specifically targeted whereas in NANAE the readers are from all over the world and not specific to Illinois, not all system administrators, not all end users, not all blocklist maintainers and therefore Goldhaber v. Kohlenberg is completely contrary to the case before the Court.
“.... accessible only to other Continental pilots”
12. Plaintiffs’ counsel then makes the claim that Howard v. Missouri Bone and Joint Center, Inc., does not apply simply because Defendant knew Plaintiffs were an Illinois company and the harm occurred in Illinois. What harm has occurred? Plaintiffs have not supported any claims of harm with anything that can be attributable to Defendant’s statements. The harm was done by Plaintiff’s litigious nature and the Plaintiffs’ incessant need for publicity. Defendant posted to a single newsgroup with approximately five-hundred readers whereas Plaintiff interviewed no less than six times for the DMNews, an online news reporting agency with potentially thousands of readers that are in the industry.
Venue
13. Defendant used a computer in his home in Tacoma, Washington to compose and post his messages to a server located in Santa Rosa, California that belongs to Sonic.net Inc.,
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Plaintiff used a computer in his home to access a server that was located in California and belongs to Google Inc., to access the post made by Defendant.
14. Lastly in an attempt to further muddy the proceedings Plaintiffs attempt to use Calder v. Jones in a final attempt to claim Jurisdiction and or Venue. The Defendant knew a large percentage of readers were from Southern California where the Plaintiff resides and the harm was to have taken place. Defendants are in the business of publishing information for shock value. Defendant does not publish for money, Defendant has no knowledge of who reads his posts that reside in Illinois and Defendants is not posting with the intent of shocking people into reading his posts.
WHEREFORE, Defendant request his Motion to Dismiss be granted with prejudice and for any additional relief this Court deems just.
Respectfully Submitted,
Mark James Ferguson
This is Robert Saecker's motion to dismiss.
Like Ferguson's it alleges insufficient contacts with Illinois.
This is e360's Response to Saecker's Motion to Dismiss
This is Robert Saecker's Reply to e360's Response to his motion to dismiss.
The tone of this summed up in the following quote from the Conclusion:
"Plaintiffs rely upon a fringe minority opinion from a foreign jurisdiction and wrap that unusual piece of jurisprudence with incomplete and inaccurate positions of Illinois case law to bolster their argument that Illinois can assert personal jurisdiction over Saecker."
This should be a copy of a motion to change venue.
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
E360 Insight
v.
Ferguson, et al.
ORDER
The matter coming to be heard on Defendant's Motion to Transfer Venue, due notice having been given and the Court being advised of the premise, IT IS HEREBY ORDERED THAT:
1. The Plaintiffs shall have 21 days, or until August 10, 2007, to file and serve upon the Defendant its Response to the Motion to Transfer Venue.
2. The Defendant shall have 14 days, or until August 24, 2007, to file and serve upon the Plaintiff his Reply.
3. This matter is set for a hearing on Defendant's Motion to Transfer Venue on August 30, 2007, at 10:30 a.m. in Room 2006 (room number unclear on original) of the Daley Center without further notice.