Gordon v. Impulse Marketing Group Inc

Filing 36

MEMORANDUM of Points and Authorities in Support re 2 First MOTION to Dismiss Defendant Defendant's Additional Supplemental Response Re: Defendant's Motion to Dismiss filed by Impulse Marketing Group Inc. (Ivey, Floyd)

Gordon v. Impulse Marketing Group Inc

Doc. 36

Case 2:04-cv-05125-FVS

Document 36

Filed 05/20/2005

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Floyd E. Ivey Liebler, Ivey & Connor, P.S. 3 1141 N. Edison, Suite C P.O. Box 6125 4 Kennewick, WA 99336 Telephone [phone] Fax [phone]
2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant's Motion to Dismiss Pursuant to FRCP 12(b)(6) - 1.
Z:\IPClient\ImpulseMarketingGroup v. Gordon\Pleadings\DefendantMotionToDismiss\Defendant.Additional.Supplement al.Response.Motion to Dismiss 051520.wpd

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON ) ) ) Plaintiffs ) ) vs. ) ) IMPULSE MARKETING GROUP, INC., ) a Nevada Corporation, ) ) Defendants ) ___________________________________ ) JAMES S. GORDON, JR., an individual residing in Benton County, Washington, NO. CV-04-5125-FVS DEFENDANT'S ADDITIONAL SUPPLEMENTAL RESPONSE RE: DEFENDANT'S MOTION TO DISMISS

Defendant Impulse Marketing Group, Inc. now submits Additional Supplemental Response regarding Defendant's Motion to Dismiss. On or about March 31, 2005, the Court directed the parties to provide it with Supplemental Memoranda of Law with respect to whether Federal Rule of Civil Procedure §9(b) applies to Washington's Commercial Electronic Mail Statute, RCW §19.190 et seq. and the Washington Consumer Protection Act, RCW §19.86 et seq. (collectively, the "Washington Statutes"). Both parties briefed the Court on this issue. The Defendant respectfully submits this Additional Supplemental Response to further clarify Defendant's Supplemental Memorandum of Law. Defendant continues to maintain that Plaintiff's allegations arising out of
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Dockets.Justia.com

Case 2:04-cv-05125-FVS

Document 36

Filed 05/20/2005

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Defendant's violations of the Washington Statutes are preempted by the CANSPAM Act of 2003 ("CAN-SPAM"). There are only two (2) limited exceptions where CAN-SPAM would not arguably bar Plaintiff's Complaint. Said exceptions are found in Sections 8(b)(2)(A)&(B) of CAN-SPAM wherein the express language provides: (A) This Act shall not be construed to preempt the applicability of State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or (B) other State laws to the extent that those laws relate to acts of fraud or computer crime (emphasis added). In the above-referenced matter, Section 8(b)(2)(A) is inapplicable because Plaintiff's Complaint specifically alleges that his damages arise from Defendant's transmission of electronic mail. Further, none of Plaintiff's causes of action sound in trespass, contract, or tort law. Should the Court hold that Plaintiff's allegations arising out of Defendant's violations of the Washington Statutes are not barred by CAN-SPAM then any and all of Plaintiff's allegations must necessarily relate to acts of fraud or computer crime by definition. As Plaintiff does not have standing to allege that Defendant committed any computerized criminal act whatsoever, the allegations with respect to Defendant's violations of the Washington Statutes must necessarily relate to acts of fraud, thus triggering the applicability of the heightened pleading requirement under Federal Rule of Civil Procedure §9(b). The Defendant submits that are novel and have, to Defendant's knowledge, never before been adjudicated. DATED this 20th day of May, 2005. LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Defendant's Motion to Dismiss Pursuant to FRCP 12(b)(6) - 2.

Z:\IPClient\ImpulseMarketingGroup v. Gordon\Pleadings\DefendantMotionToDismiss\Defendant.Additional.Supplement al.Response.Motion to Dismiss 051520.wpd

Case 2:04-cv-05125-FVS

Document 36

Filed 05/20/2005

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By /s/ FLOYD E. IVEY FLOYD E. IVEY, WSBA #6888 Local Counsel for Defendant

KLEIN, ZELMAN, ROTHERMEL & DICHTER, LLP By PETER J. GLANTZ by telephone authority by /S/FLOYD E. IVEY PETER J. GLANTZ Attorneys for Defendant
I hereby certify that a copy of the foregoing was sent via facsimile and electronically filed EFS on this 20th day of May, 2005, to: Douglas E. McKinley, Jr. P.O. Box 202 Richland, WA 99352 ______________________________________ Secretary to Floyd E. Ivey

Defendant's Motion to Dismiss Pursuant to FRCP 12(b)(6) - 3.

LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Z:\IPClient\ImpulseMarketingGroup v. Gordon\Pleadings\DefendantMotionToDismiss\Defendant.Additional.Supplement al.Response.Motion to Dismiss 051520.wpd