NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ RESP. TO MOT. FOR

RELIEF FROM DEADLINE - 1

(CV06-0204JCC)

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

DEFENDANTS’ RESPONSE TO

MOTION FOR RELIEF FROM

DEADLINE

NOTE ON MOTION CALENDAR:

November 15, 2006

I. INTRODUCTION

Defendants Virtumundo, Inc., Adknowledge, Inc., and Scott Lynn (collectively

“Defendants”) respectfully request this Court deny the motion (Dkt. No. 42) of plaintiffs

James Gordon and Omni Innovations, LLC (together, “Plaintiffs”) for relief from their

November 13, 2006 deadline to file an opposition to Defendants’ Motion for an

Undertaking (Dkt. No. 38) pursuant to 15 U.S.C. § 7706(g)(4). Instead of responding to

Defendants’ timely and proper motion, Plaintiffs moved for relief on the ground that they

Case 2:06-cv-00204-JCC Document 44 Filed 11/09/2006 Page 1 of 6

Gordon v. Virtumundo Inc et al Doc. 44

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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DEFS.’ RESP. TO MOT. FOR

RELIEF FROM DEADLINE - 2

(CV06-0204JCC)

intend to move for summary judgment within thirty (30) days. The two motions are

unrelated. Plaintiffs’ request that the Court not consider Defendants’ pending motion is

improper and without basis in fact or law. Plaintiffs propose that they will not have to

respond to Defendants’ Motion for Undertaking, effectively requesting that the Court

strike Defendants’ motion. Motions to strike have been abolished in this district. LR

7(g). Defendants respectfully request the Court deny Plaintiffs’ motion for relief from a

deadline and require that Plaintiffs timely oppose Defendants’ motion for an undertaking

or waive any response.

II. ARGUMENT

A. Defendants’ motion for an undertaking is not tantamount to a motion

for summary judgment.

Plaintiffs’ argument that Defendants’ motion for an undertaking necessitates a

motion for summary judgment is nonsensical. Plaintiffs base their argument entirely on

the fact that Defendants “admit” that they sent the six emails analyzed in the motion for

the undertaking (three of which were from Adknowledge and three of which were from

Virtumundo). This is a non-sequitur. A motion requiring that Plaintiffs post an

undertaking to secure fees and costs is wholly independent of a motion for summary

judgment. Summary judgment is intended to provide judicial efficiency where no

reasonable trier of fact could dispute liability. Fed. R. Civ. P. 56. The principal purpose

of summary judgment is “to isolate and dispose of factually unsupported claims.”

Celotex, 477 U.S. at 323-24, 106 S. Ct. at 2553. Celotex Corp. v. Catrett, 477 U.S. 317,

323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (The moving party bears the burden of

showing that there is no evidence which supports an element essential to the

non-movant's claim.) 

On the other hand, a motion for an undertaking has a lower standard and an

entirely different purpose. The Court should require an undertaking under 15 U.S.C.

§ 7706(g)(4) if there is a possibility that the Court will ultimately award the attorneys’

fees and costs provided for under CAN-SPAM. See Motion for Undertaking, Dkt. No.

Case 2:06-cv-00204-JCC Document 44 Filed 11/09/2006 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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1As described in Defendants’ Motion for an Undertaking, Plaintiffs claims are

unlikely to prevail at trial. Plaintiffs have grossly over-pled this lawsuit alleging that

Defendants’ emails violate every provision of CAN-SPAM. Defendants emails are fully

CAN-SPAM compliant. Defendants, through motion practice and discovery, have

inquired why Plaintiffs’ believe that Defendants’ emails violate CAN-SPAM; but

Plaintiffs refuse to advance any theory in support of their case.

DEFS.’ RESP. TO MOT. FOR

RELIEF FROM DEADLINE - 3

(CV06-0204JCC)

38, at p.2-3. The purpose of an undertaking is to protect against litigants asserting

frivolous claims or defenses for nuisance or settlement value. Id. Congress enacted

CAN-SPAM to include an undertaking to protect parties against vexatious litigants. This

case is the quintessential case meriting an undertaking. Plaintiffs have filed a frivolous

lawsuit over emails that comply with CAN-SPAM and refuse to articulate a theory of

liability1.

Resolution of Defendants’ motion for an undertaking will not resolve Plaintiffs’

proposed summary judgment motion, nor will resolution of Plaintiffs’ summary judgment

motion resolve the motion for an undertaking. In its motion for an undertaking,

Defendants assert that Plaintiffs cannot make a prima facie case of liability. The emails

Plaintiffs proffer are either unrelated to Defendants or, on their face, comply with CANSPAM. On this basis alone, the Court should require that Plaintiffs post an Undertaking. 

In contrast, to grant Plaintiffs’ proposed motion for summary judgment, the Court

must consider substantially more questions of law and fact at a higher standard. For

example, Plaintiffs must authenticate each of the 17,000 emails in dispute and connect

those emails to Defendants. The Court must engage in an email-by-email analysis of the

17,000 messages in dispute. Plaintiffs must prove, as a matter of law, that (i) they were

damaged by the emails; and (ii) that they are an “Internet access service.” 15 U.S.C.

§ 7706(g)(1) (providing that “A provider of Internet access service adversely affected by

a violation” may bring a civil action). Plaintiffs must demonstrate that each email

contains false and misleading transmission information, subject headings, or that each

included a “return address or comparable mechanism” that permitted Plaintiffs to opt-out

from receiving future emails. 15 U.S.C. § 7704.

Case 2:06-cv-00204-JCC Document 44 Filed 11/09/2006 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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DEFS.’ RESP. TO MOT. FOR

RELIEF FROM DEADLINE - 4

(CV06-0204JCC)

Furthermore, Plaintiffs must establish that Defendants’ affirmative defenses cannot

prevail as a matter of law. Plaintiffs’ actions amount to statutory entrapment, namely

Plaintiffs opted-in to receive emails from Defendants for the purpose of establishing a

cause of action under CAN-SPAM and Washington State law. Plaintiffs did not

unsubscribe “in a manner specified” in any of the messages which they received. CANSPAM, 15 U.S.C. § 7704(a)(3)(A) & (4). Defendants will certainly prove these facts, but

until discovery is complete the issues remain in contention and prevent either party from

preparing a successful summary judgment motion. Indeed, Defendants have sixteen (16)

affirmative defenses, and most cannot be resolved without some discovery.

Summary judgment requires a substantial effort and expense by the parties because

they must present all evidence in support of their case and demonstrate that no reasonable

trier of fact would not rule in their favor. In contrast, Defendants’ Motion for

Undertaking requires a narrow determination whether there is a reasonable likelihood that

Defendants will be the prevailing party in Plaintiffs’ CAN-SPAM claims. Defendants’

motion for an undertaking is not equal procedurally nor substantially to Plaintiffs’

proposed motion for summary judgment.

B. Summary judgement is not ripe.

The discovery cutoff in this case is December 15. Fed. R. Civ. P. 16(f). No

depositions have been taken. (See Townsend Decl at ¶ 2). Expert witness reports have

not been exchanged. (See Townsend Decl at ¶ 2). The expert witness’s report will be

based upon a consideration of Plaintiffs’ deposition testimony, which has not been

established.

Plaintiffs’ claim that summary judgment is ripe is disingenuous. Plaintiffs have

not deposed Defendants’ witnesses, have no knowledge regarding Defendants’ efforts to

comply with CAN-SPAM, their unsubscribe process, or the merits of any of Defendants’

affirmative defenses. Likewise, Plaintiffs have not been subject to a deposition to

determine whether they were legitimately damaged by Defendants’ alleged emails,

whether they even received the emails, whether they are proffering duplicate emails to

Case 2:06-cv-00204-JCC Document 44 Filed 11/09/2006 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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DEFS.’ RESP. TO MOT. FOR

RELIEF FROM DEADLINE - 5

(CV06-0204JCC)

increase damages, whether Plaintiffs are an “Internet access service” provider, whether

Plaintiffs were mislead by the subject matter of Defendants’ emails, or whether any of the

other elements of a CAN-SPAM violation can be satisfied as a matter of law. Plaintiffs

assert that the only disputed question of fact is whether Virtumundo or Adknowledge

initiated the transmission of “at least a portion” of the emails alleged by Plaintiffs. (See

Motion, Dkt. No. 42, at 3:6-8). Their argument is specious because a claim under CANSPAM requires analysis of several factors more than whether a Defendant initiated a

portion of the emails in question.

C. Plaintiffs proposed relief will not increase judicial economy.

Plaintiffs make the present motion waving the flag of judicial economy. In truth,

granting Plaintiffs’ proposed relief will increase the costs on the parties and the court. 

Due to the timing of Plaintiffs’ proposed motion for summary judgment, the motion

would be filed at the end of the discovery period so that the parties will nonetheless have

to incur the expense of preparing for and taking depositions. Additionally, the legal

expenses (and the magnitude of the Court’s involvement) are substantially greater in

filing, opposing, and resolving a motion for summary judgment.

The motion for an undertaking only pertains to Plaintiffs’ claims under CANSPAM. Even if the Court resolves the CAN-SPAM issues, Plaintiffs’ state law claims

remain. The state law claims have different elements and defenses. The motion for an

undertaking is narrow and intended by Congress to resolve before the parties expend

substantial resources in a frivolous CAN-SPAM lawsuit. Plaintiffs’ effort to expand a

narrow motion into a full-blown resolution of Plaintiffs’ claims under CAN-SPAM under

the guise of judicial economy should be rejected.

D. The Court should forbid multiple attempts at summary judgment.

Even if Plaintiffs could prevail at some juncture, they do not have the evidence to

sustain the summary judgment standard at this time. Consequently, after their summary

judgment motion is denied, presumably they will file a second summary judgment motion

once discovery is complete. The Court should not allow for duplicative litigation that

Case 2:06-cv-00204-JCC Document 44 Filed 11/09/2006 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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DEFS.’ RESP. TO MOT. FOR

RELIEF FROM DEADLINE - 6

(CV06-0204JCC)

consumes unnecessary resources.

Plaintiffs’ instant motion for relief is based on the pretense that an early summary

judgment motion would increase judicial economy. Any purported benefit in conserving

resources would be wiped out if Plaintiffs are later permitted to file a second motion for

summary judgment. The Court should not permit two attempts at a summary judgment

motion on the same issues.

III. CONCLUSION

Plaintiffs’ proposed summary judgment motion is not germane to Defendants’

pending motion for an undertaking. If Plaintiffs believe they can prevail as a matter of

law, then they can file for summary judgment at any time in this litigation without regard

for the Defendants’ pending motion. Plaintiffs should not be permitted to use their

contemplated motion for summary judgment as a mechanism for striking Defendants’

legitimate motion for an undertaking. Accordingly, this Court should deny Plaintiffs’

motion for relief (Dkt. No. 42) and require Plaintiffs to file a timely response to

Defendants’ pending motion for an undertaking (Dkt. No. 38) or waive any response.

 DATED this 9th day of November, 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 44 Filed 11/09/2006 Page 6 of 6