Twitter, Inc. v. Skootle Corp. et al

Filing 23

NOTICE OF MOTION AND MOTION to Dismiss the case against Garland E. Harris filed by Garland E. Harris. Motion Hearing set for 8/2/2012 01:00 PM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Responses due by 5/25/2012. Replies due by 6/1/2012. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 5/11/2012)

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Address:

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Yourname: Garland E. Harris

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noll Adams St.
rH· Palm Beach, FL 33407

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PhoneNumb er:

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~12-334-8440
~[e-mail]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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) Case Number: , V 12 1721

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Plaintiff( s),

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NOTICE OF MOTION AND MOTION

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) DISMISS THE CASE AGAINST

vs.

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) GARLAND E. HARRIS

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~ AND AUTHORITIES IN SUPPORT

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ir--_ _ _ _____;_ _
) THEREOF

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AND MEMORANDUM OF POINTS

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DATE:

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Defendant(s).

TIME:

) COURTROOM: ~~======;;;;:::;!
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) JUDGE: Hon.

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________________________)
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at [time]=·~ M
P======~' or as soon thereafter as the matter can be heard in th
courtroom of the Honorable Oudge 's name] AUREL BEEL R

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NOTICE OF MOTION AND MOTION TO
CASENo.(:;V 121721

ISMISS
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The motion will be based on this Notice of Motion and Motion, th

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Memorandum of Points and Authorities below, the Declaration(s) of names o

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eo le who wrote declarations Z HE DEFENDANT - GARLAND E. HARRIS.

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and the [Proposed] Order filed herewith.

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MEMORANDUM OF POINTS AND AUTHORITIES

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Before completing this section, read Chapter 7 of the Pro Se Handbook.
This section should include the following separate parts. Number each part.
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1. A table of contents and a table of authorities, if the memorandum i
longer than ten pages;
2. A statement of the issues you want the court to decide;
3. A brief statement of the facts that are relevant to this motion;
4. Your argument for why the judge should grant this motion. Includ
citations to relevant cases and law. When you refer to specific facts,
those facts should also appear in a DECLARATION, which you mus
submit with this motion. After you state a fact in this section of th
motion, state what paragraph ofthe DECLARATION contains thefac
you are using to support your position.

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Tfie efenoant, Garlano . arris, an Inoivi ·ua an resioent oftfie State of

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lorida, respectfully moves this Court for an order Clismissing this action for the

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easons stated below:

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CASENO.

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write on it.}

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1. LacK of suoject matter juris ICtion: llie oefenoant argues tliat llie Court oes

f'4. not have· the legal"authority to hear the kind of lawsuit that the plaintiffliled,
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ursuant to Fed. R. Civ. P. 12(b)(1). The Court is kindly reminded that The United

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States Congress has placed an additional barrier to diversity jurisdiction, the

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amount in controversy requirement. This is a minimum amount of money which

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he parties must be contesting is owed to them. As of mid 2007, under 28 U.S.C.

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§1332(a), a claim for relief must EXCEED the sum or value of$75,000, exclusive

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of interest and costs and without considering counterclaims. The Plaintiff states on

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page 6 of their complaint "... efforts to combat the wrongdoing ofHarris, at least

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$75,000", which does not meet the minimum standards of Diversity Jurisdiction.

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Furthermore, Plaintiff alleges on page 6 (C) 26. that a Terms of Service
· greement or- TOS was entered into by the Defendant and page 13 (H) 59. "The

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TOS is a valid, enforceable contract. .. " and further page 13 (H) 57 "Harris violates

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he Twitter TOS ... ". Contract law is a state matter and not a matter that should

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waste the valuable time of the United States Federal Court System.

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Finally the Plaintiffs use of"spam" does not comply with the CAN-SPAM Act

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of2003 (Pub. L. 108-187, S. 877) which is specifically addressed to email

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messaging. The Defendant respectfully suggests that the Court has no jurisdiction

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in the case of a "fresh definition" of a word that is defined in settled law.

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Declaration Paragraphs 1,2,4, 7 support the facts in this section.

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NOTICE OF MOTION AND MO:.T.!.::~.:...T. O r.==r=S S~::;:;----;:::;;;;-___...;~--_::_-----_.:l~l
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2. acl< of petsonal juriS tction over llie oefen<Iant: Tne oefenoant argues that e
or she has so little connection with the district in which the case was filed that the
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Court has no legal authority to hear the case, pursuant to Fed. R. Civ. P. 12(b)(2).

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Mr. Harris resides in W. Palm Beach Florida 3048.4 miles away and has not

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conducted business in California for over 3yrs. which predates involvement with

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e Plaintiff. Declaration Paragraph 6 supports the facts in this section.

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3. Improper venue: the defendant argues that the lawsuit was filed in the wrong

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eographicallocation, pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1391

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ith special rules listed in§§ 1392-1413. Finally, a case may be dismissed because

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its venue is harshly "unfair" to one or more parties

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non conveniens, often used in cases where the events took place in a foreign

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der a doctrine called forum

ountry. In this case the Defendant is 3048.4 miles away and a venue in California

f6" . otild oe narshly~unfait. Declaration Paragraph 6 supports the facts in this section:
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4. Insufficiency of process or insufficiency of service of process: the defendant

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argues that the plaintiff did not prepare the summons correctly or did not correctly

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serve the defendant, pursuant to Fed. R. Civ. P. 12(b)(4) and he argues that the

21 summons he received does not bear the seal of the Court and Pursuant to the
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ederal Rules of Procedure, certain documents, a Summons in a Civil Action,
"must bear the seal of the Court" to be valid.

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NOTICE OF MOTION AND MOTION TO
CASE NO. CV 12 1721

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5. Fai ure to state a claim upon wliicfi relief canoe grantea: tfie aefendant argues
t even if everything in the complaint is true, the defendant did not violate the

law, pursuant to Fed. R. Civ. P. 12(b)(5).

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At worst, according to page 6 (C) 26. the Plaintiff states that a Tenns of Service

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greement or TOS was entered into by the Defendant and page 13 (H) 59. "The

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TOS is a valid, enforceable contract. .. " and further page 13 (H) 57 "Harris violates

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e Twitter TOS ... " and the remedy is according to Plaintiff to on page 7 (C) 29.

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"The Rules provide that an account may be suspended for TOS violations if... ".

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;a.U1g tQ Pl~tiffs "exhibit An the~e is not remedy p;rovid~d for beyond th~

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"permanent suspension" on an account, and said action was taken by the Plaintiff

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against the Defendant.Declaration Paragraphs 2,3,5,7,8,9,10 support the facts in

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's section.

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NOTICE OF MOTION AND MOTION TO
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All parties who are making this motion must sign, date, and print their names here.
Attach another page ifyou need to.
Respectfully submitted,

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ProSe

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NOTICE OF MOTION AND MOTION TO
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