NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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REPLY RE DEFS.’ MOT. TO EXCLUDE

[NO. CV06-0204JCC] - 1

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES S. GORDON, Jr., a married

individual, d/b/a ‘GORDONWORKS.COM';

OMNI INNOVATIONS, LLC., a

Washington limited liability company,

Plaintiffs,

v.

VIRTUMUNDO, INC, a Delaware

corporation d/b/a

ADNOWLEDGEMAIL.COM;

ADKNOWLEDGE, INC., a Delaware

corporation, d/b/a

ADKNOWLEDGEMAIL.COM; SCOTT

LYNN, an individual; and JOHN DOES,

1-X,

Defendants.

NO. CV06-0204JCC

REPLY IN SUPPORT OF

DEFENDANTS’ MOTION TO

EXCLUDE OR COMPEL

NOTE ON MOTION

CALENDAR: 

March 30, 2007

I. INTRODUCTION

In support of their motion for summary judgment, Plaintiffs first disclosed their

reliance on seven witnesses in support of their case-in-chief. This disclosure was after the

discovery cutoff and the witnesses were not included in Plaintiffs’ Fed. R. Civ. P. 26(a)

initial disclosure. Accordingly, Plaintiffs should not be permitted to rely upon the

witnesses in their case. 

Plaintiffs do not dispute that the witnesses were disclosed in violation of the Civil

Case 2:06-cv-00204-JCC Document 119 Filed 03/30/2007 Page 1 of 6

Gordon v. Virtumundo Inc et al Doc. 119

Dockets.Justia.com
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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REPLY RE DEFS.’ MOT. TO EXCLUDE

[NO. CV06-0204JCC] - 2

Rules. Plaintiffs’ only opposition is that (i) they agreed to exclude the witnesses from

trial; and (ii) that Plaintiffs previously proposed limited deposition dates for some of the

witnesses. Neither of Plaintiffs’ arguments are persuasive.

In fact, the seven witnesses are essential to Plaintiffs’ burden to prove standing

under CAN-SPAM or RCW § 19.190.090(2). Plaintiffs’ standing under those statutes

require that Plaintiffs demonstrate that they are a “provider of Internet access service

adversely affected” and “engaged in the business of providing internet access service to

the public.” RCW § 19.190.090(2); 15 U.S.C. § 7706(g)(1). Without customers,

Plaintiffs cannot establish these essential elements and those claims should be dismissed

as a matter of law for lack of standing.

II. ARGUMENT AND AUTHORITY

A. Plaintiffs’ Offer To Exclude Witnesses From Trial Is Incomplete

While Plaintiffs have offered to exclude the seven belatedly disclosed witnesses

from trial, Plaintiffs expressly refused to remove the witnesses from consideration by the

Court in support of Plaintiffs’ motion for summary judgment. Indeed, Plaintiffs mock the

very suggestion as “disingenuous”. (Opposition at p.3). However, it is Plaintiffs’

position that is unsupportable. 

It is nonsensical to rely upon witnesses in support of Plaintiffs’ motion for

summary judgment, but not rely upon the witnesses at trial. In both instances, Plaintiffs

have the burden of proof. Plaintiffs cannot have it both ways; either the witnesses are

relevant to their prima facie case, or they are not. If the witnesses are not relevant to

Plaintiffs’ case, then they should be struck from the record at trial and summary

judgment. However, if they are relevant, then they should be subject to the Fed. R. Civ.

P. 26(a)(1) disclosure rules and made available for depositions.

Plaintiffs’ agreement to exclude the seven witnesses at trial but not summary

judgment is based upon a fundamental misconception of the nature of summary judgment. 

A plaintiff moving for summary judgment bears the burden of production and persuasion

Case 2:06-cv-00204-JCC Document 119 Filed 03/30/2007 Page 2 of 6
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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REPLY RE DEFS.’ MOT. TO EXCLUDE

[NO. CV06-0204JCC] - 3

on each genuine issue of material fact for each of the elements of the asserted causes of

action. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). A dispute as to a

material fact is “genuine” if there is sufficient evidence for a reasonable jury to return a

verdict for the nonmoving party. Id., 477 U.S. at 248. The primary purpose of summary

judgment is to dispose of factually unsupported claims and defenses prior to trail. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). 

Strictly speaking, facts are not, at summary judgment, admitted into the evidentiary

record. Rather, facts asserted at summary judgment are a reflection of the facts that will

be asserted at trial and that Plaintiffs will move to enter into the record. Fed. R. Civ. P.

56(e) provides, in pertinent part, that

Supporting and opposing affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the matters stated

therein. 

Fed. R. Civ. P. 56(e) (emphasis added). If the Court concludes that no reasonable trier of

fact could rule but that those facts - when they have been admitted into evidence - support

each of the elements of the cause of action, then summary judgment is appropriate. It

makes no sense to assert facts by declaration in support of summary judgment unless

those facts are reflective of the expected testimony at trial. Defendants dependence upon

the seven witnesses on summary judgment but not at trial is a logical fallacy.

B. Without the Seven Customer Witnesses, Plaintiffs Cannot Allege Standing

under CAN-SPAM or RCW § 19.190.090(2)

The seven witnesses are essential to Plaintiffs’ prima facie case and, if the

witnesses are not included in the record, much of Plaintiffs’ case should be dismissed

forthright. The seven witnesses constitute all of the purported customers of Plaintiffs’

Internet access service. As has previously been briefed (see e.g., Dkt. 108 at p. 9-11),

Plaintiffs’ standing under CAN-SPAM requires that Plaintiffs are a “provider of Internet

access service adversely affected” by certain violations and a pattern of practice of other

violations. 15 U.S.C. § 7706(g)(1). Without customers, Plaintiffs cannot establish (i) that

Case 2:06-cv-00204-JCC Document 119 Filed 03/30/2007 Page 3 of 6
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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1Defendants do not concede that seven customers of friends and family are sufficient to confer standing

under CAN-SPAM or RCW § 19.190.090(2). To the contrary, Defendants have moved for summary judgment

on the ground that, inter alia, Plaintiffs do not have standing even if the Court considers the testimony of

Plaintiffs’ seven customers. (See Dkt. #108)

2Fed. R. Civ. P. 26(a)(1) provides, in pertinent part, that,

Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise

stipulated or directed by order, a partymust, without awaiting a discovery request, provide to other

parties:

(A) the name and, if known, the address and telephone number of each individual likely to have

discoverable information that the disclosing party may use to support its claims or defenses, unless

solely for impeachment, identifying the subjects of the information.

REPLY RE DEFS.’ MOT. TO EXCLUDE

[NO. CV06-0204JCC] - 4

they provide an Internet access service, or (ii) their business suffers as a result of a

violation. Both are essential to Plaintiffs’ claims under CAN-SPAM. Similarly,

Plaintiffs’ standing under CEMA relies, in part, upon Plaintiffs’ alleged status as a

“person engaged in the business of providing internet access service to the public.” RCW

§ 19.190.090(2); see also First Amended Complaint (Dkt. # 15) at 13. Unless Plaintiffs

can establish they have customers, then they cannot establish that they are providing an

Internet access service to the public. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002); T.W. Elec. Serv. v. Pac. Elec. Contractors Ass'n, 809 F.2d

626, 630 (9th Cir.1987) (uncorroborated allegations and “self-serving testimony” do not

create a genuine issue of material fact).

Without the testimony of Plaintiffs’ seven customers, Plaintiffs cannot establish a

prima facie case of standing under CAN-SPAM or RCW § 19.190.090(2)1. These

witnesses were not timely disclosed as required pursuant to Fed. R. Civ. P. 26(a)2. (See

Dkt. # 25 (Plaintiffs’ Initial Disclosures)). Moreover, Plaintiffs have volunteered to strike

the testimony of the witnesses from Plaintiffs’ case-in-chief at trial. Without the trial

testimony of the seven customers, Plaintiffs do not have standing under CAN-SPAM or

RCW § 19.190.090(2) and their claims brought pursuant thereto should be dismissed. See

Hart v. Parks, 450 F.3d 1059, 1065 (9th Cir. 2006) (where the moving party bears the

burden of proof at trial, the non-moving party meets the summary judgment standard by

pointing to the absence of evidence to support the moving party’s case.)

Case 2:06-cv-00204-JCC Document 119 Filed 03/30/2007 Page 4 of 6
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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REPLY RE DEFS.’ MOT. TO EXCLUDE

[NO. CV06-0204JCC] - 5

C. Plaintiffs’ Waiver Argument has no Basis in Law or Fact

Plaintiffs’ second argument is equally unavailing. Plaintiffs concede that they

failed to disclose the seven customer witnesses until after the discovery cutoff. 

Thereafter, Plaintiffs proposed a window of dates during which the witnesses would be

available for depositions which began “as early as December 27, 2006.” (Opposition at

p.2). When Defendants requested the depositions in February 2007, however, Plaintiffs

decreed that the window of opportunity for the depositions were closed. Having ignored

the deadline imposed by Fed. R. Civ. P. 26 and the Court-ordered discovery cutoff (see

Dkt. #67), Plaintiffs ask the Court to enforce their unilaterally imposed deadline. 

Plaintiffs ask the Court for an order which ignores firm Court ordered deadlines but

enforces their arbitrary deadlines. However, Plaintiffs site no rule, law or logic that

supports their contention or their proposed relief. This effort should be rejected by the

Court.

III. CONCLUSION

For the foregoing reasons, Defendants respectfully request that Plaintiffs’ reliance

on the seven customer witnesses not timely disclosed be struck from the record on

summary judgment and at trial. Furthermore, because Plaintiffs cannot establish standing

under CAN-SPAM or RCW § 19.190.090(2) without the testimony of its alleged

customers, Plaintiffs’ causes of action under CAN-SPAM and RCW § 19.190.090(2)

should be dismissed as a matter of law. Without the testimony of customers, Plaintiffs

have no corroboration that they are a “provider of Internet access service adversely

affected” or a “person engaged in the business of providing internet access service to the

public.” 15 U.S.C. § 7706(g)(1); RCW § 19.190.090(2). Plaintiffs’ only testimony

supporting those claims are their own uncorroborated allegations and “self-serving

testimony” which cannot, by themselves, create a genuine issue of material fact.

///

///

Case 2:06-cv-00204-JCC Document 119 Filed 03/30/2007 Page 5 of 6
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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REPLY RE DEFS.’ MOT. TO EXCLUDE

[NO. CV06-0204JCC] - 6

DATED this 30th day of March, 2007.

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

BY:

Derek A. Newman, WSBA No. 26967

Roger M. Townsend, WSBA No. 25525

Attorneys for Defendants

Case 2:06-cv-00204-JCC Document 119 Filed 03/30/2007 Page 6 of 6