Gordon v. Impulse Marketing Group Inc

Filing 43

DECLARATION by James S. Gordon, Jr. in Support re 40 First MOTION to Dismiss counterclaims and Third Party Defendants filed by James S Gordon, Jr. (McKinley, Douglas)

Gordon v. Impulse Marketing Group Inc

Doc. 43

Case 2:04-cv-05125-FVS

Document 43

Filed 08/17/2005

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DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]

THE HONORABLE FRED VAN SICKLE

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON AT RICHLAND JAMES S. GORDON, JR, an individual residing in Benton County, Washington. Plaintiff, v. IMPULSE MARKETING GROUP, INC., a Nevada Corporation Defendants. NO. CV-04-5125-FVS DECLARATION OF JAMES S. GORDON, JR. IN SUPPORT OF PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIMS AND THIRD PARTY DEFENDANTS UNDER FRCP 12(b)(6) OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT UNDER FRCP 56 OR IN THE ALTERNATIVE TO DISMISS UNDER FRCP (9)(b) Jury Trial Demanded

James S. Gordon declares as follows: 1) I, James S. Gordon Jr., am the named plaintiff in the above captioned lawsuit. I am over the age of 18 and am otherwise competent to testify.
Declaration of James S. Gordon, Jr. in support of plaintiff's motion to dismiss counterclaims and third party defendants ­ No. CV-04-5125-FVS

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DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]

Dockets.Justia.com

Case 2:04-cv-05125-FVS

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2)

On or about May of 1998, I registered the domain name "gordonworks.com" and began using it to make information relating to job searching and career development available to the general public on the internet. I also began using the email address "[e-mail]"

3)

In addition to the email address "[e-mail]" I created numerous other email addresses, all using the gordonworks.com domain. These included [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail].

4) 5) 6)

Many of these email addresses were published on the internet on various web pages I created. Almost as soon as each of these email addresses was published on the internet, I began receiving commercial email at these addresses. The addresses for my family members, [e-mail],
DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]

Declaration of James S. Gordon, Jr. in support of plaintiff's motion to dismiss counterclaims and third party defendants ­ No. CV-04-5125-FVS

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Case 2:04-cv-05125-FVS

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Filed 08/17/2005

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[e-mail], [e-mail], [e-mail], [e-mail], [e-mail], were all published on the internet on web pages I built for my family. 7) Although the web pages related to my family members, all of them were created and maintained by me, and email sent to any of these email addresses is and was received by me. 8) 9) Many of the commercial emails I had begun to receive contained offers purporting to offer free products. In response to these offers, on or about September 1, 2003, I submitted requests to receive the free products advertised in these offers. These submissions were made by visiting a website advertised in these emails, and entering an email address and other information into an online form. I used the following email addresses [e-mail], [e-mail], [e-mail], [e-mail], [e-mail], [e-mail]. 10) 11) I never received any of the free products advertised in the emails. Nowhere on any of these websites was I asked to give my consent to receive any commercial email from the Defendant, and at no time did I give my consent to receive any commercial email from the Defendant. 12) Almost immediately after I had filled out the online forms which purported to offer free products, I began to receive a torrent of commercial email from the Defendant at the email addresses I had used to try to accept the offers for free prizes.
DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]

Declaration of James S. Gordon, Jr. in support of plaintiff's motion to dismiss counterclaims and third party defendants ­ No. CV-04-5125-FVS

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13) 14) 15) 16) 17)

Within a few weeks of these requests for free products, I attempted to stop this torrent of commercial email by unsubscribing. In October of 2003, I began submitting "unsubscribe" requests to the Defendants, and continued to do so through Spring of 2005. These "unsubscribe" requests were ignored, and in fact, the amount of emails I received increased after these requests were sent. All of the emails that form the basis for my lawsuit against the Defendant were received by me after I had submitted these "unsubscribe" requests. Throughout the fall of 2003, I continued to receive emails from the Defendant, and I brought complaints about this unwanted and ongoing commercial email to the Federal Trade Commission, the Attorney General for Washington State, Tier 1 backbone internet providers, my local ISP, and the local, Richland, Washington police department.

18)

At the local Richland, Washington police department, I was put in contact with Officer Lew Reed, a police officer specializing in cybercrimes investigations. Officer Reed personally examined about 2,000 emails sent by the Defendant, and confirmed to me that information in the transmission paths of the emails in question had been omitted and/or mischaracterized.

19)

In November of 2004, having confirmed that the emails in question violated RCW 19.190 et seq., and having exhausted all avenues I could conceive of to stop the sending of this illegal spam to my domain short of litigation, I brought this suit against the Defendant.

20)

Despite all of these efforts, and the fact that my lawsuit against the Defendant has been pending for 9 months, to this day the Defendant
DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]

Declaration of James S. Gordon, Jr. in support of plaintiff's motion to dismiss counterclaims and third party defendants ­ No. CV-04-5125-FVS

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continues to send me commercial email that violates RCW 19.190 et seq. 21) In my prior lawsuit against Commonwealth Marketing Group, Inc., I identified my wife, Mrs. Bonnie Gordon; my children, Mr. James. S. Gordon III, Mr. Jonathan Gordon, and Ms. Jamila Gordon; my friends, Mr. Robert Pritchett, and Ms. Emily Abbey; and Officer Lew Reed as witnesses. 22) 23) 24) The Defendants have now sued all of these individuals as "Third Party Defendants." The Defendant's claims against the Third Party Defendants have no basis in fact whatsoever. To the extent that I ever had any conversations with any of the Third Party Defendants related to the commercial emails sent by the Defendant, I expressed my desire that they stop sending these emails, and my frustration that the Defendant would not. 25) To the best of my knowledge, at no time have any of the Third Party Defendants ever solicited any commercial emails to any "gordonworks.com" email address. 26) At no time did any of the Third Party Defendants and I ever discuss any "scheme" whereby they would solicit any commercial emails to any "gordonworks.com" email address, as such would have been directly contrary to my often stated desire that the Defendant stop sending me commercial email. 27) The Defendant's claims against the Third Party Defendants thus appear to be nothing more than an attempt to harm me by exposing my friends, family and law enforcement witnesses to the costs of defending
DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]

Declaration of James S. Gordon, Jr. in support of plaintiff's motion to dismiss counterclaims and third party defendants ­ No. CV-04-5125-FVS

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Case 2:04-cv-05125-FVS

Document 43

Filed 08/17/2005