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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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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’,

Plaintiff,

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

DISMISS FOR LACK OF

PERSONAL JURISDICTION

PURSUANT TO FED. R. CIV.

P. 12(b)(2)

NOTE ON MOTION CALENDAR:

April 7, 2006

Case 2:06-cv-00204-JCC Document 17 Filed 04/07/2006 Page 1 of 10

Gordon v. Virtumundo Inc et al Doc. 17

Dockets.Justia.com
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DEFS.’ REPLY RE MOT. TO

DISMISS ON JURISDICTION - i

(CV06-0204JCC)

TABLE OF CONTENTS

I. INTRODUCTION ........................................ 1

II. ARGUMENT AND AUTHORITY ........................... 2

A. Plaintiff’s Evidence is Fundamentally Flawed ............... 2

1. Plaintiff’s opposition and supporting declaration

contain material inconsistencies and constitute a

Rule 11 violation. ................................. 2

2. Most emails attached to Plaintiff’s declaration are

irrelevant. ....................................... 3

3. Plaintiff does not allege any facts relating to

Defendants other than Virtumundo. .................. 4

B. Plaintiff’s Authority Does Not Support His Opposition ........ 5

C. CAN-SPAM Requires Only That Defendants Provide an

Unsubscribe Link ...................................... 6

III. CONCLUSION .......................................... 8

Case 2:06-cv-00204-JCC Document 17 Filed 04/07/2006 Page 2 of 10
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1Subsequent to filing his Opposition, Plaintiff filed a First Amended Complaint. The

jurisdictional facts are materially the same and Defendants request that the Court deem the

underlying Motion to apply to the First Amended Complaint.

DEFS.’ REPLY RE MOT. TO

DISMISS ON JURISDICTION - 1

(CV06-0204JCC)

I. INTRODUCTION

Defendants Virtumundo, Inc. (“Virtumundo”), Adknowledge, Inc.

(“Adknowledge”), and Scott Lynn (collectively “Defendants”) should be

dismissed from this lawsuit for lack of personal jurisdiction1. Plaintiff’s

Response in Opposition to Motion to Dismiss (Dkt. No. 11, the “Opposition”)

contains numerous inconsistencies, mischaracterizations and inaccurate

citations to his own unsubstantiated declarations. For example, the

Opposition “categorically” claims Plaintiff never opted-in to receive emails,

whereas he testifies in his declaration (Dkt. No. 11 at 2:5-8) that he did optin.

Plaintiff has supplied only a handful of emails, the majority of which

have nothing to do with any of the defendants. Plaintiff relies on only two

emails from Defendant Virtumundo, which do not demonstrate purposeful

availment. He does not contend in his Opposition that any of the other

defendants sent him any email messages.

Plaintiff argues that Defendants purposefully availed themselves

because he sent emails to various email addresses at “virtumundo.com”, but

he admits he refused to unsubscribe through the unsubscribe link provided on

Virtumundo emails. 15 U.S.C. § 7701 et seq. (“CAN-SPAM”) provides that an

unsubscribe link is the federally mandated means to opt-out of receiving

commercial emails. CAN-SPAM puts the onus on email marketers and

recipients to follow the unsubscribe process in order to put the sender on

notice that the recipient wishes to opt-out. Virtumundo was entitled to rely

on CAN-SPAM in managing its email lists, and Plaintiff’s alleged

communication(s) other than “in a manner specified in the [commercial email]

Case 2:06-cv-00204-JCC Document 17 Filed 04/07/2006 Page 3 of 10
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DEFS.’ REPLY RE MOT. TO

DISMISS ON JURISDICTION - 2

(CV06-0204JCC)

message” is insufficient to constitute notice. 15 U.S.C. § 7704(a)(3)(A)(i). 

Emails to random addresses at “virtumundo.com” fail to put any defendant on

jurisdictional notice because even if Plaintiff sent them, the defendants never

received them.

Finally, Plaintiff lumps each of the defendants together as a single

entity, but alleges no facts relevant to any defendant other than Virtumundo. 

The motion to dismiss by defendants other than Virtumundo should be

granted because it is effectively unopposed. Virtumundo should be dismissed

because it could not have foreseen being haled into court here.

II. ARGUMENT AND AUTHORITY

A. Plaintiff’s Evidence is Fundamentally Flawed.

The facts alleged in support of Plaintiff’s Opposition are inconsistent

and unsupported. Plaintiff’s only evidence of putting any defendant on

jurisdictional notice is a self-serving declaration claiming he sent 200 emails

to various email addresses at the Virtumundo.com domain (but to no other

defendants), and that he registered his residency at the website located at

WAISP.org. However, Plaintiff fails to attach a single email or any other

evidence substantiating his claims. Moreover, the law does not impose a

burden on foreign residents to query the WAISP.org website. See e.g.,

Cybersell v. Cybersell, 130 F.3d 414 (9th Cir. 1997) (court does not have

jurisdiction over defendant in trademark owner’s home state even though

defendant could have searched the United States trademark office database

to determine trademark owner’s residency).

1. Plaintiff’s opposition and supporting declaration contain

material inconsistencies and constitute a Rule 11 violation.

Plaintiff’s declarations contain blatant inconsistencies and his

Opposition contains material falsehoods. The Opposition falsely states that

Case 2:06-cv-00204-JCC Document 17 Filed 04/07/2006 Page 4 of 10
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2Defendants have evidence which indicates that recipients from the Gordonworks.com

domain opted-in to receive emails from computers located in Richland, WA. Plaintiff Gordon

admits that he resides in Benton County, WA, which includes Richland. First Amended

Complaint at ¶ 1.1.

DEFS.’ REPLY RE MOT. TO

DISMISS ON JURISDICTION - 3

(CV06-0204JCC)

Plaintiff “wholly” and “categorically” denies having subscribed to receive

emails. Opposition at pp. 3:3 & 4,n.1 (Dkt. No. 11). However, Plaintiff

testifies explicitly in his declaration that “this next sentence is not true -

italicized) [Plaintiff has] never ‘opted-in’, ‘subscribed’, or ‘co-registered’, in

any manner with Virtumundo nor, to my knowledge, any of their ‘affiliates’, or

‘partners’.” Gordon Decl. (Dkt. 12) at ¶ 4 (emphasis in original)2. Plaintiff

subsequently filed a second Declaration omitting the false statement. See

Second Gordon Decl., Dkt. 16 at ¶ 4. However, Plaintiff did not bother to

correct the material misstatement in the Opposition and, instead, asserts the

false statement emphatically. This falsehood calls into question Plaintiff’s

veracity and the reliability of all of his unsupported testimony.

The Opposition proffers that Plaintiff sent cease and desist memos to

Virtumundo “literally thousands of times.” Opposition at p. 3:25. However,

the Gordon Decl. contradicts the Opposition by limiting the number of such

memos to “approximately 200 direct requests to Virtumundo to cease and

desist.” Gordon Decl. at ¶ 7. This inconsistency and the lack of documentary

support for the Opposition speak for themselves. Indeed, Plaintiff testifies he

sent 200 requests, but he does not attach any copies of such requests, and he

fails to cite a single specific occasion when he sent any communication to

Virtumundo or any other defendant.

2. Most emails attached to Plaintiff’s declaration are

irrelevant.

The emails attached to Plaintiff’s declaration (Dkt. No. 16) are either

irrelevant, inadmissible, and/or without authentication. For example, emails

Case 2:06-cv-00204-JCC Document 17 Filed 04/07/2006 Page 5 of 10
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28 3Citations to page numbers are to the Gordon Decl. (Dkt. 16).

DEFS.’ REPLY RE MOT. TO

DISMISS ON JURISDICTION - 4

(CV06-0204JCC)

from unrelated third parties from domains like “03.mdsa.com” (page 113),

“g.ew01.com”(page 12), “b.hm02.com”(page 13), “mindsharedesign.com”(page

16), and “prefersend.com” (page 23-24) are not in the least bit germane to this

matter. Plaintiff’s reliance on an email to an unrelated recipient, “5-

katie@ehahome.com”(page 26-27), is peculiar considering the recipient of the

email is not a party or witness to this case.

Plaintiff does not explain the relevance of these emails and the Court

should disregard them. In truth, Plaintiff acknowledges that he is relying on

“email ads from Virtumundo and other spammers.” Gordon Decl. at ¶ 5

(emphasis added). It is axiomatic that alleged unlawful conduct by other

parties is not relevant to a lawsuit against specific defendants. Similarly,

Plaintiff relies on a generic memo to an unnamed “Email Marketer”, but

supplies no evidence that this memo was sent to any defendant, other than

his self-serving declaration that the letter is an “example request.” Gordon

Decl. at ¶ 7. Like the emails to “other spammers” the Court should disregard

the generic memo.

3. Plaintiff does not allege any facts relating to Defendants

other than Virtumundo.

The only evidence Plaintiff submits pertaining to any defendant in this

matter are a few emails apparently from Virtumundo, which are insufficient

to establish any jurisdictional nexus. Gordon Decl. at page 14-15, 18. 

Plaintiff does not attach or claim to have received emails from any other

defendant. Ironically, Plaintiff attempts to distinguish this case from the

recent Utah Supreme Court decision in Fenn v. Mleads Enterprises, Inc., 2006

UT 8; 545 Utah Adv. Rep. 7 because “that case involved the sending of only

one (1) single email by” the defendant. However, in the present matter,

Case 2:06-cv-00204-JCC Document 17 Filed 04/07/2006 Page 6 of 10
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ATTORNEYS AT LAW, LLP

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4Plaintiffs other attempt to distinguish the Fenn case relies on differences between the

Utah and Washington laws. However, Fenn was decided primarily based upon the fourteenth

amendment to the United States Constitution, and the instant motion pertains to the federal

constitutional constraints of due process which are unrelated to the state law. Under either state

or federal law, the Court does not have personal jurisdiction over the defendants unless it finds

that the email marketer purposefully availed itself of the forum under applicable federal due

process principles.

DEFS.’ REPLY RE MOT. TO

DISMISS ON JURISDICTION - 5

(CV06-0204JCC)

Plaintiff only supplies two emails related to one of the defendants in this

lawsuit4, and no emails from any other.

Plaintiff attempts to impeach Defendants’ Motion because Defendants

“nowhere flatly deny Plaintiff received the emails in question.” However,

Plaintiff has supplied only the few emails attached to his declarations, most

of which are wholly irrelevant to any Defendant. Moreover, sending emails to

recipients who have opted-in to receive email solicitations or have not

unsubscribed to email lists is not unlawful. In light of Plaintiff’s constructive

admission that he opted-in to receive emails, Virtumundo had the right to

send Plaintiff these messages, and Plaintiff’s efforts to cast the defendants in

a negative light ring hollow.

B. Plaintiff’s Authority Does Not Support His Opposition.

Consistent with his approach to the facts, Plaintiff cites to law which

does not stand for the propositions for which they are cited. For example,

Plaintiff relies heavily on an order by Judge Zilly which purportedly supports

his Opposition. However, Plaintiff fails to advise the Court that Judge Zilly’s

decision was subsequently reconsidered and the decision was materially

changed. See Hodgell v. Memolink, W.Dist.Wa., No. CV02-2183Z, Dkt.

No. 23. Judge Zilly initially denied the motion to dismiss by all defendants

collectively, and Plaintiff cited only that order. On reconsideration, however,

Judge Zilly considered the jurisdictional facts as to each defendant and

dismissed two of them for lack of personal jurisdiction. As applied to the

present matter, Judge Zilly’s opinion supports the parsing of jurisdictional

Case 2:06-cv-00204-JCC Document 17 Filed 04/07/2006 Page 7 of 10
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ATTORNEYS AT LAW, LLP

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5Plaintiff acknowledges that he did not click on the functional unsubscribe link to these

emails, but that he did unsubscribe to emails sent from unrelated third parties. See Gordon

Decl. at page 16. 

6See, e.g., 15 U.S.C. § 7704 (a): “(3) Inclusion of return address or comparable mechanism

in commercial electronic mail-

 (A) IN GENERAL- It is unlawful for any person to initiate the transmission to a

protected computer of a commercial electronic mail message that does not contain a functioning

return electronic mail address or other Internet-based mechanism, clearly and conspicuously

displayed, that--

 (i) a recipient may use to submit, in a manner specified in the message, a reply

DEFS.’ REPLY RE MOT. TO

DISMISS ON JURISDICTION - 6

(CV06-0204JCC)

facts against Virtumundo, Inc., Adknolwedge, Inc., Scott Lynn and his

marital community and the ten John Does separately. The only arguable

jurisdictional facts advanced by Plaintiff pertain to Virtumundo and no other

Defendant, and even those facts do not establish a relationship between

Virtumundo and the state of Washington.

Plaintiff also cites to the resolution of his own Motion to Dismiss in the

Eastern District of Washington in a different case. Plaintiff only excerpted a

portion of that order. See Siegel Decl. at Exh. B. In truth, personal

jurisdiction was not at issue in that motion; rather, the issue was whether the

plaintiff had failed to state a claim. Accordingly, the Eastern District of

Washington case is wholly irrelevant to the instant motion.

C. CAN-SPAM Requires Only That Defendants Provide an

Unsubscribe Link.

Plaintiff argues that Defendants have purposefully availed themselves

because he sent emails to various email addresses at “virtumundo.com”,

although he refused to unsubscribe through the unsubscribe link provided on

Virtumundo emails5. Plaintiff argues that his emails “were much clearer and

specific than would be a questionable request to ‘unsubscribe’”. Opposition at

4:4-6. However, the CAN-SPAM Act, 15 U.S.C. § 7701 et seq, provides an

unsubscribe link is the federally mandated means to opt-out of receiving

commercial emails.

6

 Pursuant to CAN-SPAM, email marketers may not send

Case 2:06-cv-00204-JCC Document 17 Filed 04/07/2006 Page 8 of 10
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ATTORNEYS AT LAW, LLP

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electronic mail message or other form of Internet-based communication requesting not to receive

future commercial electronic mail messages from that sender at the electronic mail address

where the message was received; and

 (ii) remains capable of receiving such messages or communications for no less than

30 days after the transmission of the original message.”

7See 15 U.S.C. § 7704(a)(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;

 (ii) for any person acting on behalf of 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 with actual knowledge, or knowledge fairly implied on the basis of objective

circumstances, that such message falls within the scope of the request”

DEFS.’ REPLY RE MOT. TO

DISMISS ON JURISDICTION - 7

(CV06-0204JCC)

messages to the recipients more than 10 days after they opt-out, and the

unsubscribe link must remain functional for 10 days7.

Virtumundo was entitled to rely on CAN-SPAM in managing its email

lists and the unsubscribe process. Plaintiff posits that his “Dear Email

Marketer” memo is clearer than the unambiguous Federal law providing for a

uniform process for unsubscribing to email lists. This theory is specious. The

very purpose of a uniform Federal law is to allow business to ensure

compliance in every state. Plaintiff’s argument is like an airline refusing to

comply with Federal Aviation Administration regulations because the airline

thinks its practices are safer.

In fact, it is likely Plaintiff did not properly unsubscribe because he

wished to pursue litigation to collect statutory damages from email

marketers. Plaintiff admits he opted-in to receive emails, but he refused to

opt-out. He claims he sent communications to Virtumundo to request it stop

sending messages, but he does not provide any evidence that Virtumundo

received the alleged requests. Defendants submit that Plaintiff did

everything he could to avoid cessation of emails because if the emails stopped,

then Plaintiff’s alleged damages also would stop. Plaintiff probably opted-in

Case 2:06-cv-00204-JCC Document 17 Filed 04/07/2006 Page 9 of 10
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ REPLY RE MOT. TO

DISMISS ON JURISDICTION - 8

(CV06-0204JCC)

because he wished to create a cause of action; and he refused to opt-out

because he wished to increase his damages. If Plaintiff sent emails to random

“virtumundo.com” email addresses, he did so likely knowing Defendants

would not receive them, and to support a form-over-substance argument of a

jurisdictional nexus where none exists. Plaintiff’s refusal to follow the CANSPAM process, in favor of his alleged (without documentary support) emails

to random Virtumundo email addresses, does not satisfy the due process

requirements of personal jurisdiction.

III. CONCLUSION

Defendants are not subject to jurisdiction in this forum. Plaintiff does

not submit any facts indicating any defendant could reasonably foresee it was

sending messages to the state of Washington. Plaintiff’s Opposition pertains

only to Virtumundo. There are no alleged jurisdictional facts pertaining to

any of the other Defendants. Therefore, Defendants respectfully request this

Court dismiss this action with prejudice for lack of personal jurisdiction, and

award Defendants their reasonable attorney’s fees pursuant to RCW §

4.28.185(5).

DATED this 7th day of April, 2006.

Respectfully Submitted,

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 17 Filed 04/07/2006 Page 10 of 10