CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA v. SERVIN et al

Filing 10

Memorandum in opposition to re 9 MOTION for Extension of Time to File Answer or Otherwise Respond filed by CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit 1 - Extract from "Yes Men" Web site, # 2 Exhibit 2 - Ltr from R. Corn-Revere to W. Potts, dated 11/17/2009)(Mueller, Michael)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
CHAMBER OF COMMERCE OF THE
)
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
) Case No.: 1:09-cv-02014
v.
)
JACQUES SERVIN (aka ANDY BICHLBAUM )
)
aka HINGO SEMBRA), IGOR VAMOS (aka
)
MIKE BONANNO), SUPPORT AND
)
COMMITMENT, INC., DAVID SIEVERS,
)
MORGAN GOODWIN, SARAH MURPHY,
)
)
and JOHN and JANE DOES NOS. 1-20,
)
)
Defendants.

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO
DEFENDANTS’ MOTION FOR EXTENSION OF TIME
Pursuant to Federal Rule of Civil Procedure 6(b)(1) and Local Civil Rule 7(b), Plaintiff,
The Chamber of Commerce of the United States of America (the “Chamber”), hereby responds
to Defendants’ motion for an extension of time in which to respond to Plaintiff’s First Amended
Complaint. For the reasons below, Plaintiff opposes the extremely long extension requested by
Defendants, but does not oppose a reasonable extension until December 11, 2009:
1.

The Chamber filed its complaint on October 26, 2009, and named one additional

Defendant in an amended complaint filed on November 6, 2009.1 The Chamber’s complaint
arises from Defendants’ misappropriation of the Chamber’s trademarks and software, and their
fraudulent use of the Chamber’s identity to deceive the press and public. The publicity resulting
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The First Amended Complaint was filed before any of the Defendants responded to the
original complaint. It made no changes to the causes of action asserted in the original complaint.

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from Defendants’ fraudulent activities has been used to advertise a motion picture directed by
Defendants Servin and Vamos, which they describe as a “true story” about how they “lie their
way into big business conferences.”
2.

Under Fed. R. Civ. P. 12(a)(1)(A)(i) and 15 (a)(3), the named Defendants have

different deadlines for responding to the First Amended Complaint due to the fact that they were
served on different dates. Defendants acknowledge that one of them (David Sievers) had a
deadline of November 20, two (Jacques Servin and Support and Commitment, Inc.) have a
deadline of November 23, and two (Morgan Goodwin and Sarah Murphy) have a deadline of
November 30. See Defendants’ Motion at 3. 2
3.

Before Defendants filed their Motion, the Chamber offered Defendants an extension

of time until December 11, 2009 to respond to the First Amended Complaint. This extension
would have permitted all of the Defendants to file their responses at the same time, and would
have prevented any disruption of Defendants’ Thanksgiving holiday plans. The extension would
also have resulted in the Chamber filing its response to Defendants’ forthcoming motion to
dismiss before the December holidays. Defendants, however, rejected the Chamber’s offer.
4.

Defendants are now asking the Court to grant them until January 5, 2010 to respond

to the Complaint, asserting that the additional time is needed to “review the factual allegations in
the complaint,” “prepare Defendants’ responses,” and “coordinate their various legal defenses,
including potential challenges to Plaintiff’s attempts to serve the Defendants.” Defendants’
2

The remaining Defendant (Igor Vamos) has so far avoided service despite efforts to
serve him at his home and office, and we learned this morning that he has left the country. Mr.
Vamos, however, has obviously been aware of the allegations in the complaint for at least three
weeks, since his attorney discussed the case with Chamber’s counsel on November 3, and since
Mr. Vamos’ “Yes Men” Web site published a statement on this case under his picture on October
28, entitled “Yes Men Statement on Chamber Lawsuit.” See Exh. 1 (extract from Vamos’s and
Servin’s “Yes Men” Web site). The “Yes Men” is a name that Defendants Vamos and Servin
use to conduct their trade.

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Motion at 3. The additional time sought by Defendants would be prejudicial to the Chamber,
and is not justified by the circumstances of this case.
5.

The requested extension would be prejudicial to the Chamber because Defendants are

engaged in an ongoing course of conduct detrimental to the Chamber. As a result of Defendants’
fraudulent use of the Chamber’s trademarks and identity, several national news organizations
have already been deceived into publishing reports that incorrectly attributed Defendants’
statements to the Chamber, which the news organizations later retracted when they learned they
had been deceived. Until this case is resolved, the Chamber remains at risk that Defendants will
continue to misappropriate its trademarks and identity for the purpose of deceiving the public.
For example, as alleged in the Complaint, Defendants acquired and used a portion of the
software code from the Chamber’s Web site to fraudulently steer traffic to their own fake Web
site and then allow users to “click through” to the Chamber’s real Web site. See First Amended
Complaint ¶ 20. Defendants have not returned this software or represented that it has been
destroyed. Similarly, Defendants have refused to forego using the Chamber’s trademarks on the
Web or otherwise pending a ruling on their motion to dismiss (see Exh. 2 (Nov. 17, 2009 letter
from Robert Corn-Revere to William E. Potts, Jr.)), claiming that this would infringe their own
“substantive rights.” Defendants’ Motion at 4. Every extension that Defendants obtain in this
case is therefore an extension of the time that Defendants believe they can continue to
misappropriate the Chamber’s trademarks, software and identity.
6.

Defendants also have no need for the lengthy extension they are requesting. The

Complaint’s factual allegations involve matters within Defendants’ personal knowledge, and
they should therefore be able to respond in short order. Moreover, Defendants all retained
counsel promptly. On November 3, 2009, an attorney from the Electronic Frontier Foundation

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notified the Chamber’s counsel that he is representing Defendants Vamos, Servin, Sievers,
Goodwin and Support and Commitment, Inc. in this litigation. The following week, five
additional attorneys entered appearances on behalf of those same Defendants and also on behalf
of Defendant Sarah Murphy, who was added as a Defendant in the First Amended Complaint
filed on November 6, 2009.
7.

Defendants’ professed concern about Defendants having different deadlines for

responding to the First Amended Complaint can be easily rectified by requiring all Defendants
who have been served to respond to the complaint by the December 11, 2009 date that the
Chamber has offered Defendants. This would give Defendant Sievers a 21-day extension of
time, Defendants Servin and Support and Commitment, Inc. an 18-day extension of time, and
Defendants Goodwin and Murphy an 11-day extension of time. The fact that the remaining
Defendant (Igor Vamos) has so far avoided service and has now left the country is no reason to
further delay his co-Defendants from responding to the Complaint.
8.

Defendants’ Motion incorrectly suggests that Rule 6 requires this Court to grant any

extension they request, regardless of the delay that it may cause in the progress of this action.
Defendants’ Motion at 3-4. To the contrary, “[t]he court is expected to use its discretion to
extend time periods in a manner that will ‘secure the just, speedy, and inexpensive determination
of every action and proceeding,’ as stated by Rule 1.” 1 JAMES WM. MOORE, ET AL., MOORE’S
FEDERAL PRACTICE § 6.06[1][a] (3d. ed. 2008) (quoting Baden v. Craig-Hallum, 115 F.R.D. 582,
584-585 (D. Minn. 1987)). The lengthy extension sought by Defendants -- which would give
Defendant Sievers 66 days and Defendant Servin 63 days to respond to the complaint -- is
unreasonable, unnecessary, prejudicial and contrary to the interest of securing a just, speedy and
inexpensive determination of this action.

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WHEREFORE, Plaintiff respectfully requests that the Court deny Defendants’
motion to extend the time in which they must answer or respond to Plaintiff’s First Amended
Complaint. In the event the Court decides that a reasonable extension is appropriate, Plaintiff
respectfully requests that the extension be granted only until December 11, 2009.
Dated: November 23, 2009

HUNTON & WILLIAMS, LLP

/s/ Michael J. Mueller_________________
RICHARD L. WYATT, JR.
(D.C. Bar No. 424775)
MICHAEL J. MUELLER
(D.C. Bar No. 412025)
THOMAS M. HUGHES
(D.C. Bar No. 460134)
WILLIAM E. POTTS, JR.
(D.C. Bar No. 945824)
1900 K Street, NW
Washington, DC 20006
Tel: [phone]
Fax: [phone]

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via
electronic mail and U.S. Mail postage pre-paid this 23rd day of November, 2009 upon:
Robert Corn-Revere, Esq.
Davis Wright Tremaine, LLP
1919 Pennsylvania Avenue, N.W., Suite 200
Washington, D.C. 20006

Matthew Zimmerman, Esq.
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
Counsel for Defendants

By: /s/ Michael J. Mueller____________________
Michael J. Mueller

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