Xcentric Ventures, LLC et al v. Stanley et al

Filing 72

MOTION for Alternative Service on Defendants Stanley, et al. by Xcentric Ventures, LLC, Ed Magedson. (Attachments: # 1 Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6)(Speth, Maria)

Xcentric Ventures, LLC et al v. Stanley et al

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Kraig J. Marton, #003816 [e-mail] Maria Crimi Speth, #012574 [e-mail] Adam S. Kunz, #018827 [e-mail] Laura A. Rogal, #025159 [e-mail] JABURG & WILK, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA XCENTRIC VENTURES, LLC, an Arizona corporation, d/b/a "RIPOFFREPORT.COM"; ED MAGEDSON, an individual Plaintiffs, v. WILLIAM "BILL" STANLEY, an individual; WILLIAM "BILL" STANLEY d/b/a DEFAMATION ACTION.COM; WILLIAM "BILL" STANLEY d/b/a COMPLAINTREMOVER.COM; WILLIAM "BILL" STANLEY aka JIM RICKSON; WILLIAM "BILL" STANLEY aka MATT JOHNSON; ROBERT RUSSO, an individual; ROBERT RUSSO d/b/a COMPLAINTREMOVER.COM; ROBERT RUSSO d/b/a DEFENDMYNAME.COM; ROBERT RUSSO d/b/a QED MEDIA GROUP, L.L.C.; QED MEDIA GROUP, L.L.C.; QED MEDIA GROUP, L.L.C. d/b/a DEFENDMYNAME.COM; QED MEDIA GROUP, L.L.C. d/b/a COMPLAINTREMOVER.COM; DEFAMATION ACTION LEAGUE, an unincorporated association; and INTERNET DEFAMATION LEAGUE, an unincorporated association; Defendants.
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Case No: 2:07-CV-00954-NVW MOTION FOR ALTERNATIVE SERVICE ON DEFENDANTS WILLIAM "BILL" STANLEY; WILLIAM "BILL" STANLEY d/b/a DEFAMATIONACTION.COM; WILLIAM "BILL" STANLEY d/b/a COMPLAINTREMOVER.COM; WILLIAM "BILL" STANLEY aka JIM RICKSON; AND WILLIAM "BILL" STANLEY aka MATT JOHNSON

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Plaintiffs Xcentric Ventures, Inc. d/b/a Ripoffreport.com and Ed Magedson (collectively, "Plaintiffs") pursuant to Rule 4(e), Fed.R.Civ.P., hereby request that this Court enter an Order allowing alternative service of the Summons and Verified Complaint in this matter because extensive efforts to serve Defendant "Stanley" or "William Stanley" (identified in the Complaint as: William "Bill" Stanley, William "Bill" Stanley d/b/a DefamationAction.com; William "Bill" Stanley d/b/a ComplaintRemover.com; William "Bill" Stanley aka Jim Rickson; and William "Bill" Stanley aka Matt Johnson) by the standard method of service authorized by Rule 4, Fed.R.Civ.P. have failed. Defendant Stanley is intentionally avoiding service of process. This Motion is supported by the following Memorandum of Facts and Authorities, with exhibits including affidavits and other documents, and by all of the pleadings and matters of record, all of which are incorporated herein by this reference. DATED this 27TH day of September, 2007.

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JABURG & WILK, P.C.

/Maria Crimi Speth/ Maria Crimi Speth Attorneys for Plaintiffs

MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs have made extensive efforts to locate and serve Defendant Stanley. Plaintiffs have made extensive efforts to serve William Stanley, to no avail. William Stanley lists an Austria address at 8 Redetsky Strasse, Klagenfurt in all of his domain name registrations. He has sent emails and made verbal statements that he is living in Austria and not subject to the laws of the United States. However, an

investigator located in Austria went to Stanley's Austria address and also contacted the 2
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

owner of that property, Alfred Schurz. The investigator has reported back that Stanley had previously lived at the 8 Redetsky Strasse address, but left for America "several weeks ago". Exhibit "1", Affidavit and translation to be filed at a later date. 1 On May 16, 2007, Plaintiffs' process server attempted to serve Defendant Stanley at his last known United States address of 9503 Blue Creek Lane, Austin, Texas 78758. The current resident at that address, Carolyn Estiville, stated that she has no knowledge of Defendant Stanley and that he does not live at that address. However, she did state that she occasionally receives telephone calls for him at her telephone number, 512-832-0911. (Exhibit "2"). Plaintiffs then obtained an address for Stanley at 5407 Antoine Dr., Houston, Texas through Lexis Nexis public records search. According to Lexis Nexis, this address is valid as of August, 2007. (Exhibit "3") Plaintiff's process server attempted service at that address several times with no success. The address is a computer repair facility and Stanley is known to work for a computer repair service. The occupants at that address, however, claim that Stanley has not worked at that address for five years. (Exhibit "4"). William Stanley has a valid, current vehicle registration for a vehicle registered in Texas. (Exhibit "3") Because of the relationship between the parties, Plaintiffs have also attempted to serve Defendant Stanley at the two addresses known to be the home addresses of Defendant Russo in Maine, 54 North Street, Portland, ME, 04101 and 11 Gay Street, Portland, ME 04103-2416. (Upon information and belief, Mr. Russo recently moved from North Street to Gay Street.) Plaintiff's process server attempted service at those addresses approximately four times, but did not locate Mr. Stanley at those addresses. (See Exhibit "5")

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Plaintiff is awaiting an affidavit or declaration from the Austrian investigator. In light of the time delay in receiving the declaration (which must be translated from German to English) and in light of the need to expedite service, Plaintiff is filing this Motion before receipt of the declaration. The declaration will be filed upon receipt.

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

II.

Defendant Stanley is avoiding service. Defendant Stanley has used [e-mail] and

[e-mail] to send email to counsel for Xcentric. (See Exhibit "6", copy of emails from Defendant Stanley to Counsel Maria Speth.) Plaintiffs have copied Defendant Stanley on all pleadings by sending the pleadings via e-mail to The Stanley Email Addresses, and Stanley has responded, showing that he is both aware and contemptuous of this litigation. (See Exhibit "6") In an email response when Counsel Maria Speth sent the Court's order, Defendant Stanley bragged "In my country we truly have free speech" (See Exhibit "6", email of June 22, 2007.) He has referred to the lawsuit contemptuously: "You can deceive the court with your bullshit all you want. It changes nothing for me." Defendant Stanley referred to the process of this suit as "pissing in the wind."(See Exhibit "6", email of May 20, 2007.) He also boasted that "you should study me before you continue to piss me off. You will see a history of complete defiance." Id. (emphasis added) Stanley's refusal to submit himself to the jurisdiction of this court, along with misrepresenting his whereabouts, justifies alternative service by publication and email.

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III.

The Court should allow initial service by publication and email. a. The Federal Rules of Civil Procedure and the Arizona Rules of Civil Procedure allow service by publication

Pursuant to Rule 4(e), Fed.R.Civ.P., Plaintiffs may effect service on Defendant Stanley "pursuant to the law of the state in which the district court is located". Therefore, Plaintiffs may utilize any form of service contemplated by the State of Arizona, which is the state in which this Court is located. Rule 4.2, Arizona Rules of Civil Procedure, provides the basis upon which a plaintiff may effect service of process on an out-of-state defendant. Rule 4.2(f) allows for service by publication

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Where the person to be served is one whose present residence is unknown but whose last known residence was outside the state, or has avoided service of process. Rule 4.2(f), Ariz.R.Civ.P. The rule allows weekly publication for one month of the Summons, accompanied by a statement as to the manner in which a copy of the pleading being served may be obtained, in a newspaper published in the county where the action is pending. Id. Incidentally, Rule 4.2(f) also requires, "when the residence of the person to be served is known," that the Summons and pleading be mailed to that residence. Defendant Stanley's last known residence was outside the state of Arizona, his current residence is unknown, and he has been avoiding service of process as described above. Service by publication should be allowed under the laws of Arizona, through publication of the Summons and a notice in The Arizona Capitol Times, a newspaper of general circulation published in Maricopa County. The notice will inform Mr. Stanley that a copy of the Complaint may be obtained from the Court or from Plaintiff's counsel. Other methods of service on out-of-state defendants expressly authorized by the Arizona Rules of Civil Procedure are not practical. As explained by Rule 4.2(b), [s]ervice of process may be made outside the state but within the United States in the same manner provided in Rule 4.1(d)-(l) of these Rules by a person authorized to serve process under the law of the state where such service is made. Ariz.R.Civ.P., Rule 4.2 (b). Each method of service set out in Rule 4.1(d)-(l), Ariz.R.Civ.P., requires that an individual defendant be located or the individual's defendant's residence be known, or contemplates service on an entity. b. The Court should allow and order subsequent service by email. Plaintiffs also request that he Court allow all pleadings and papers subsequent to the Summons and Complaint required to be served upon Defendant Stanley to be served by email to The Stanley Email Addresses, and by deposit with the Clerk of the Court, pursuant to Rule 5(b)(C) & (D), and Rule 5(b)(3) and Rule 5(e).

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

IV.

Conclusion These proposed alternative methods of service are appropriate given the law, the

rules of civil procedure, and the circumstances of this case. DATED this 27th day of September, 2007.

JABURG & WILK, P.C.

/Maria Crimi Speth/ Maria Crimi Speth Attorneys for Plaintiffs Certificate of Service I hereby certify that on September 27, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Teresa Kay Anderson Snell & Wilmer LLP One Arizona Center 400 E Van Buren Phoenix, AZ 85004 Michael Kent Dana Snell & Wilmer LLP 400 E Van Buren Phoenix, AZ 85004-0001 With a COPY of the foregoing emailed on this 27th day of September, 2007, to: William "Bill" Stanley [e-mail] [e-mail] With a COPY of the foregoing hand delivered on the 28th day of September, 2007, to: Honorable Neil V Wake United States District Court District of Arizona s/Maria Crimi Speth/ 6
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