Gordon v. Impulse Marketing Group Inc

Filing 482

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS re 403 Motion. Signed by Judge Fred Van Sickle. (SAP, Case Administrator)

Gordon v. Impulse Marketing Group Inc

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

JAMES S. GORDON, No. CV-04-5125-FVS Plaintiff, v. IMPULSE MARKETING, INC., JEFFREY GOLDSTEIN, PHILLIP HUSTON, and KENNETH ADAMSON, Defendants. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

THIS MATTER comes before the Court on the Defendants' Motion to Dismiss the First Amended Complaint, Ct. Rec. 403. represented by Robert J. Siegal. The Plaintiff is

The Defendants are represented by

Floyd Ivey, Sean A. Moynihan, and Peter Glantz. BACKGROUND The Plaintiff, James S. Gordon, is a Washington resident and the registered user of the internet domain name "gordonworks.com." The

Defendants are Impulse Marketing Group, Inc. ("Impulse"), a Nevada corporation, and three of its employees: Kenneth Adamson, Jeffrey Goldstein, and Phil Huston. Impulse is an electronic marketing

company that transacts business with Washington by sending commercial electronic mail messages ("email") to Washington state residents. Impulse operates by collecting personally identifiable information from individuals who sign up to receive free products and/or services ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS- 1

Dockets.Justia.com

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at websites run by Impulse and/or its marketing partners.

In

consideration for receiving free products and/or services from an Impulse related website, it requires that individuals using its websites agree to submit accurate personal subscriber information ("Subscriber Profiles"). By submitting their Subscriber Profiles,

individuals grant Impulse the right to transfer the Subscriber Profiles to third parties for marketing purposes. Impulse Marketing

subscribes revenue from the licensing and/or use of accurate Subscriber Profiles. The Plaintiff initiated the present lawsuit on November 23, 2004, alleging that Impulse violated Washington's Commercial Electronic Mail Act ("CEMA"), RCW § 19.190 et seq., and Washington's Consumer Protection Act ("CPA"), RCW § 19.86 et seq., by initiating and/or conspiring with others to initiate unsolicited commercial emails to various addresses at Plaintiff's domain, "gordonworks.com." On May 2,

2006, the Court granted the Plaintiff's request to amend the Complaint to include claims under the Federal CAN-SPAM Act (15 U.S.C. § 7701 et seq.), Washington's Deceptive Offers statute (RCW § Washington's Identity Crimes statute (RCW § provision of CEMA (RCW § 19.190.080). 19.170),

9.35), and a new

The Court also gave the

Plaintiff leave to name additional defendants, Jeffrey Goldstein, Kenneth Adamson, and Phillip Huston, officers and/or directors of Impulse. (Ct. Rec. 356).

The Plaintiff filed his First Amended Complaint ("FAC") on June 13, 2006. On August 31, 2006, the Defendants moved to dismiss the FAC Without seeking leave of the Court, the

on a number of grounds.

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Plaintiff filed a Second Amended Complaint ("SAC"), Ct. Rec. 448-3, along with their response to the motion to dismiss. objected to the SAC as an unauthorized pleading. sought leave to file the SAC. The Defendants

The Plaintiff then

The Court has denied the Plaintiff's

request to file the Second Amended Complaint, but given the Plaintiff leave to plead damages for his Prize Statute claim. motion to dismiss the FAC is now before the Court. DISCUSSION I. LEGAL STANDARD A complaint should not be dismissed for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6) unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 When the legal sufficiency of a complaint's The Defendants'

L. Ed. 2d 80, 84 (1957).

allegations are tested with a motion under Rule 12(b)(6), all factual allegations set forth in the complaint are taken as true and construed in the light most favorable to the plaintiff. Co., 83 F.3d 1136, 1140 (9th Cir. 1996). Epstein v. Wash. Energy

The Court must give the

plaintiff the benefit of every inference that reasonably may be drawn from well-pleaded facts. Cir. 1998). The parties have submitted a number of declarations in support of their briefing on the motion to dismiss. The Court will consider Tyler v. Cisneros, 136 F.3d 603, 607 (9th

these materials only in ruling upon the Defendants' challenge to personal jurisdiction. A court may not generally consider material

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beyond the pleadings in ruling upon a motion to dismiss. Davis, 295 F.3d 890, 896 n.3 (9th Cir. 2002).

Thompson v.

If the Court were to

rely on the declarations submitted by the parties, the Court would be obliged to convert the motion to dismiss into a motion to for summary judgment. Jackson v. Southern California Gas Co., 881 F.2d 638, 643 This the Court declines to do, as the proper

n.4 (9th Cir. 1989).

time for consideration of declarations is generally at summary judgment, after both parties have had an opportunity to conduct discovery. The Court may and will consider the declarations and, if

necessary, resolve factual disputes in addressing the Defendants' personal jurisdiction argument. Inlandboatmens Union of the Pac. v.

Dutra Group, 279 F.3d 1075, 1083 (9th Cir. 2002). II. SUBJECT MATTER JURISDICTION This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Under section 1332, the federal district courts have original

jurisdiction to hear civil cases where the parties are citizens of different states and more than $75,000 is in controversy. Plaintiff is a Washington resident. The

The Defendants are a Nevada FAC ¶¶ 1.1-1.5. FAC ¶ 2.5.

corporation and citizens of the State of Georgia. The Plaintiff alleges more than $75,000 in damages.

Subject matter jurisdiction is therefore proper in this case. III. COMMERCIAL ELECTRONIC MAIL ACT Under Washington's Commercial Electronic Mail Act ("CEMA"), it is illegal to transmit email that misrepresents its point of origin, misrepresents its transmission path, or contains false information. Wash. Rev. Code § 19.190.020. The statute authorizes an individual

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who receives emails that violate CEMA to bring an action to recover damages. Wash. Rev. Code § 19.190.040(1). Interactive computer Wash. Rev.

services injured by such emails may also recover damages. Code § 19.190.040(2).

An "interactive computer service" is,

any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions. Wash. Rev. Code § 19.190.010(8). The statute provides separate Wash. Rev. Code §

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definitions for "domain name" and "web page."
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19.190.010 (10), (13).
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CEMA further provides that it is illegal to

use email to induce a person to provide identifying information. Wash. Rev. Code § 19.190.080.
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Private individuals may bring civil Wash. Rev.

actions for damages for violations of this subchapter. Code § 19.190.090(1).
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The owner of a web page who has been "adversely

affected" by a violation of Section 19.190.80 may also bring suit. Wash. Rev. Code § 19.190.090(2).
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The Defendants argue that Gordon, as an individual bringing suit
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on behalf of himself, does not have standing to pursue his CEMA claim
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because he does not qualify as an "interactive computer service."
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The

Plaintiff responds that Gordon qualifies as an interactive computer
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service because he makes information available to thousands of
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computer users on his website.
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The Court does not find either party's The parties have neither cited

briefing on this issue persuasive.
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case law nor defined the technical terms at issue in the definition. If the interpretation of the term "interactive computer service"
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presents a question of first impression, analysis beyond recitation of the statutory language will be necessary. Moreover, even if the Plaintiff does not qualify as an interactive computer service, he may still seek recovery under Section 19.190.020 for those emails he received personally. He may also seek

recovery for the injuries he suffered personally and the adverse effects the Defendants' conduct had on him as a provider of internet access service under Section 19.190.080. CEMA claim is therefore denied. IV. CONSUMER PROTECTION ACT In order to state a cause of action under Washington's Consumer Protection Act ("the CPA"), a plaintiff must allege five elements: (1) an unfair or deceptive act or practice, (2) in trade or commerce, (3) that impacts the public interest, (4) which causes injury to the party in his business or property, and (5) the injury must be causally linked to the unfair or deceptive act. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash. 2d 778, 785-86, 719 P.2d 531, 535-37 (Wash. 1986). Conduct that Dismissal of the Plaintiff's

violates CEMA constitutes "an unfair or deceptive act in trade or commerce" for the purposes of the CPA. Wash. Rev. Code § 19.190.100.

The Defendants imply that the Plaintiff lacks standing to bring his CPA claims because Gordon does not qualify as an interactive computer service. Given that the Defendants have failed to persuade

the Court that the Plaintiff is not an interactive computer service, the Plaintiff may yet be able to prove that the Defendants engaged in an unfair or deceptive trade practice by violating CEMA. the Plaintiff's CPA claim is therefore inappropriate. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS- 6 Dismissal of

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V.

THE CAN-SPAM ACT The Controlling the Assault of Non-Solicited Pornography and

Marketing Act ("CAN-SPAM") attempts to decrease the problems associated with commercial electronic mail by prohibiting a number of emailing practices. 15 U.S.C. § 7701 et seq. While CAN-SPAM is

generally enforced by the Federal Trade Commission, providers of "internet access service" may also seek relief under CAN-SPAM. U.S.C. § 7706(g)(1). 15

For the purposes of CAN-SPAM, "`Internet access

service' has the meaning given that term in section 231(e)(4) of the Communications Act of 1934." 15 U.S.C. § 7702(11). The

Communications Act defines "internet access service" as a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services. 47 U.S.C. § 231(e)(4).

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The Defendants argue that the Plaintiff does not have standing to
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bring claims under CAN-SPAM because Gordon, as an individual bringing
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suit on behalf of himself, is not an internet access service.
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The

Plaintiff responds that he is an internet access service because, as the sole proprietor of gordonworks.com, he enables the site's users to
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access content and email on the Internet.
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The Court is not persuaded that dismissal of the Plaintiff's CAN23

SPAM claim is appropriate.
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The parties agree that CAN-SPAM defines

"internet access service" in terms of what the entity in question does rather than in terms of the entity's ownership structure.
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The

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Plaintiff has made a logical argument that his activities qualify him under this definition. In contrast, the Defendants have not provided

any analysis in support of their argument that an individual who operates a domain name may not qualify as an internet access service. While the Defendants do point to a secondary source that supports their position, the persuasive value of this unbinding authority is negated by the absence of analysis. Dismissal of the Plaintiff's CAN-

SPAM claim at this stage of the litigation would be premature. VI. THE PRIZE STATUTE Washington's Prize Statute prohibits the deceptive promotional advertizing of prizes. Wash. Rev. Code § 19.170.010 et seq. "A

person who suffers damages" as a result of such advertizing practices may bring a cause of action to recover damages. 19.170.060. Wash. Rev. Code §

The FAC alleges that the Defendants transmitted many FAC ¶¶

emails that violated the Prize Statute in unspecified ways. 4.3.1-4.3.2.

The Defendants argue that the Plaintiff does not have

standing to bring his Prize Statute claim because he has failed to plead that the Defendants' alleged violations of the Prize Statute caused him to suffer damages. However, the Court has granted the

Plaintiff permission to amend the First Amended Complaint to plead damages under the Prize Statute. denied. VII. PERSONAL JURISDICTION A trial court may only exercise personal jurisdiction over an out-of-state defendant when the exercise of jurisdiction is both consistent with due process and authorized by the state's long arm ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS- 8 The motion to dismiss this claim is

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statute. 2006).

Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154-55 (9th Cir. Due process is satisfied when a defendant has a sufficient

number of contacts with the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. When a

310, 316, 66 S. Ct. 154, 159, 158 90 L. Ed. 2d 95, 102 (1945).

defendant has so many contacts with the forum state as to "approximate physical presence," the courts within that state have general jurisdiction over the defendant and may exercise it on any claim. Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1168-69 (9th Cir. 2006). Where, however, a defendant has only limited contacts with the

forum state, the courts within it may only exercise specific jurisdiction. Pebble Beach Co. v. Caddy, 453 F.3d at 1154 n.1.

The Ninth Circuit applies a three-part test in determining whether a defendant has sufficient minimum contacts with the forum state to establish specific jurisdiction. when, (1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum, (2) the claim arises out of or results from the defendant's forum-related activities, and (3) the exercise of jurisdiction is reasonable. Id. at 1155. Minimum contacts exist

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The plaintiff in a civil action has the burden of proving that
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the court has personal jurisdiction over a defendant.
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Lee v. City of

Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001).
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Once the plaintiff

has satisfied the first two prongs of the minimum contacts test, the

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burden shifts to the defendant to prove that the exercise of jurisdiction would be unreasonable. Schwarzenegger v. Fred Martin In considering the

Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).

evidence, the court should take unchallenged allegations in the complaint as true, conflicts in facts should be resolved in favor of the plaintiff, and the evidence before the court should be construed in the light most favorable to the plaintiff. F.3d at 1187. While the Defendants do not contest the court's jurisdiction over Impulse, they do challenge the court's jurisdiction over Goldstein and Adamson. However, dismissal of the claims against Goldstein and Id. at 800; Ochoa, 287

Adamson is inappropriate because the Plaintiff has plead facts sufficient to confer personal jurisdiction. The Plaintiff has plead

that Adamson and Goldstein are officers or directors of Impulse who exercise control over Impulse's policies and practices. FAC ¶ 1.5.

Assuming this allegation to be true, Adamson and Goldstein did purposefully avail themselves of the privilege of conducting activities in Washington. While the Defendants have submitted

evidence to the contrary, the Court must resolve such factual disputes in favor of the Plaintiff under Ochoa and Schwarzenegger. 800; 287 F.3d at1187. VIII. VAGUENESS 374 F.3d at

Under the notice pleading requirements of the Federal Rules of Civil Procedure, a complaint in a civil suit must contain "a short and plain statement of the grounds upon which the court's jurisdiction depends." Fed. R. Civ. P. 8(a)(1). "The `short and plain statement'

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must provide the defendant with `fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Dura Pharm., Inc. v.

Broudo, 544 U.S. 336, 346, 125 S. Ct. 1627, 1634, 161 L. Ed. 2d 577, 588 (2005)(citing Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80, 85 (1957)). To satisfy this standard, the

plaintiff's complaint should set forth allegations respecting all material elements of a particular claim. Brennan v. Concord EFS,

Inc., 369 F. Supp. 2d 1127, 1130 (N.D. Cal. 2005). A complaint may properly be dismissed when it is "vague, conclusory, and general and does not set forth any material facts in support of the allegations." North Star Int'l v. Arizona Corp. More specifically,

Comm'n, 720 F.2d 578, 583 (9th Cir. 1983).

dismissal is appropriate when "one cannot determine from the complaint who is being sued, for what relief, and on what theory, with enough detail to guide discovery." Jacobson v. Schwarzenegger, 357 F. Supp.

2d 1198, 1205 (C.D. Cal. 2004)(quoting McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996)). The Defendants argue that the FAC fails to satisfy the pleading requirements of Rule 8 because it is vague and consists entirely of conclusory allegations. While the Court is troubled by

the vague and conclusory nature of the FAC, the FAC does provide the Defendants with "fair notice" of the nature of the Plaintiff's claims. Unlike the complaint dismissed in Jacobson, one can determine the identity of the defendants, the relief sought, and the theories alleged in the FAC. It is also possible to proceed with discovery by

seeking the emails at issue. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS- 11

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IX.

MOTION FOR A MORE DEFINITE STATEMENT A defendant may move for a more definite statement when the

complaint is "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed. R. Civ. P. 12(e). A

motion for a more definite statement is not a remedy for a lack of detail, however. Sheffield v. Orius Corp., 211 F.R.D. 411, 414-15 (D.

Or. 2002); Castillo v. Norton, 219 F.R.D. 155, 163 (D. Ariz. 2003). Motions for a more definite statement are disfavored, leading some district courts to conclude that such motions should be denied if the missing information may be obtained through discovery. Castillo, 219

F.R.D. at 163; Davison v. Santa Barbara High School District, 48 F. Supp. 2d 1225, 1228 (C.D. Cal. 1998). The Defendants request an order compelling the Plaintiff to provide, for each and every allegedly offensive email: 1) The address to which it was sent; 2) The date on which it was sent; 3) The basis upon which the Plaintiff claims it violates a statute; and 4) The basis upon which the Plaintiff claims the Defendant sent it. (Ct. Rec. 404 at 18-19.) The Plaintiff argues that all of the

information the Defendants seek has been provided in discovery. The Court finds that the nature of the Plaintiff's claims, combined with the vagueness of the FAC, presents an exceptional circumstance that warrants a more definite statement. While the FAC

provides notice concerning the nature of the Plaintiff's claims, it is ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS- 12

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nevertheless so ambiguous that the Defendants cannot reasonably be expected to frame a responsive pleading. not identify the emails at issue. Specifically, the FAC does

Without such identification, the

Defendants have no way of knowing if they should "admit" or "deny" sending the emails. Nor is it possible to "admit" or "deny" that an

email violates any of the statutes at issue without first knowing the content of the email. Even if the Defendants have been provided with the emails through discovery, a more definite statement is necessary to prevent the Plaintiff from presenting a moving target. While not all of the

information requested by the Defendants is necessary to achieve this end, the Plaintiff must identify the emails at issue, the time frame during which they were sent, and the basis upon which he claims the Defendants sent the emails. Attempting to litigate a claim without

first identifying the acts and documents that gave rise to the claim is contrary to the "just, speedy, and inexpensive determination of the action" required by Federal Rule of Civil Procedure 1. CONCLUSION Following this Court's disposition of the Defendant's Second Motion to Dismiss, the Plaintiff may continue to pursue his claims under Washington's Commercial Electronic Mail Act, Washington's Consumer Protection Act, Washington's Deceptive Offers statute, Washington's Identity Crimes statute, Washington's Prize Statute, and the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act. The Plaintiff must provide the Defendant with a more Accordingly,

definite statement as specified below.

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IT IS HEREBY ORDERED: 1. The Defendants' Motion to Dismiss the First Amended Complaint, Ct. Rec. 403, is GRANTED IN PART and DENIED IN PART. 2. The Plaintiff shall file a more definite statement identifying: a) The number of emails at issue; b) The time frame during which the emails were sent; c) The addresses and domain names that received the emails; and d) A brief summary of the factual basis upon which the Plaintiff claims that Impulse sent the emails. IT IS SO ORDERED. The District Court Executive is hereby

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directed to enter this order and furnish copies to counsel. DATED this 14th day of May, 2007. s/ Fred Van Sickle Fred Van Sickle United States District Judge

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