UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Federal Trade Commission

v. Civil No. 04-cv-377-JD

SmartBot.Net, Inc., et al.

O R D E R

Defendant John Robert Martinson moves to dismiss the Federal

Trade Commission’s claims against him, asserting a lack of

personal jurisdiction. The FTC responds that the due process

requirements of the Fifth Amendment have been met and that

Martinson is amenable to service of process under the FTC Act, 15

U.S.C. § 53(b). Martinson contends that § 53(b) does not apply

in the circumstances of this case.

The FTC alleges that Martinson is or was the chief executive

officer of two Georgia corporations, Mailwiper, Inc., and Spy

Deleter, Inc., that sold and distributed computer “anti-spyware”

products which were advertised by defendant Seismic Entertainment

Products, Inc., through “pop up” computer advertising. The “pop

up” ads are disseminated through unauthorized changes to

consumers’ web browsers. The FTC alleges that Martinson,

Mailwiper, and Spy Deleter have violated the FTC Act, 15 U.S.C. §

45(a), because their practices have caused substantial injury to

consumers without any countervailing benefit. The FTC seeks an

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Section 53(b) provides that the Commission may bring suit 1

to enjoin an act or practice “[w]henever the Commission has

reason to believe - - (1) that any person . . . is violating, or

is about to violate, any provision of law enforced by the Federal

Trade Commission, and (2) that the enjoining thereof . . . would

be in the interest of the public . . . .” 15 U.S.C. § 53(b)(2).

The statute also provides for nationwide service of process: “In

any suit under this section, process may be served on any person

. . . wherever [he] may be found.”

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injunction pursuant to § 53(b) to stop the alleged violations of

§ 45(a).

The party asking the court to exercise personal jurisdiction

over a defendant bears the burden of showing that it exists. Jet

Wine & Spirits v. Bacardi & Co., 298 F.3d 1, 7 (1st Cir. 2003). 

In federal question cases, the Fifth Amendment governs the

personal jurisdiction analysis and requires that a defendant have

adequate contacts with the United States as a whole. United

States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir.

2001). In addition, the defendant must be amenable to service of

process as authorized either by the federal statute providing the

cause of action or by a civil rule. Id.

There is no dispute that Martinson, who is a Georgia

resident, has sufficient contacts with the United States to

satisfy the Fifth Amendment. The FTC contends that § 53(b),

which provides for nationwide service of process, makes Martinson

amenable to suit. Martinson challenges the application of § 1

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53(b) on the ground that his two corporations, Mailwiper and Spy

Deleter, have been dissolved. He argues that since the

corporations no longer exist, the activity the FTC sought to

enjoin has ceased, and the FTC cannot seek an injunction under §

53(b) against him. 

Martinson responded to the FTC’s assertion of jurisdiction

under § 53(b) only in his reply. The FTC has not sought leave to

file a surreply to address the issues raised in the reply. The

FTC raised the possibility of personal jurisdiction based on

minimum contacts with New Hampshire only in a footnote. 

The present state of the record is insufficient to permit a

decision on the question of personal jurisdiction. Further,

given Martinson’s representations in his reply, it appears that

the claim against him might be resolved by agreement and a

stipulation. Therefore, counsel shall first discuss the

possibility of settling the claim against Mailwiper, Inc., Spy

Deleter, Inc., and Martinson. If those efforts are unsuccessful,

the FTC shall file a surreply responding to the arguments

Martinson has raised in his reply on or before August 12, 2005.

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Conclusion

For the foregoing reasons, the FTC and defendants Mailwiper,

Inc., Spy Deleter, Inc., and Martinson shall use their best

efforts to resolve the claim against those defendants. In the

event they are not successful, the FTC shall file a surreply

responding to the arguments Martinson has raised in his reply on

or before August 12, 2005.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

July 26, 2005

cc: Ralph A. Jacobs, Esquire

W. Scott O’Connell, Esquire

Charulata B. Pagar, Esquire

Laura M. Sullivan, Esquire

Martha Van Oot, Esquire

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