Gordon v. Impulse Marketing Group Inc

Filing 536

RESPONSE to Motion re 531 MOTION to Dismiss the Second Amended First Amended Complaint filed by James S Gordon, Jr. (Siegel, Robert)

Gordon v. Impulse Marketing Group Inc

Doc. 536

Case 2:04-cv-05125-FVS

Document 536

Filed 09/22/2007

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NO. CV-05-5079-FVS PLAINTIFF'S RESPONSE TO MOTION TO DISMISS SECOND AMENDED FIRST AMENDED COMPLAINT Page 1 of 6 i.JUSTICE LAW, P.C. PO Box 25817 Seattle, WA 98165-1317 Phone/Fax: [phone]

i.JUSTICE LAW, P.C. PO BOX 25817 Seattle, Washington 98165-1317 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, a married individual; Plaintiff, v. IMPULSE MARKETING GROUP, INC., a Nevada/Georgia corporation; JEFFREY GOLDSTEIN, individually and as part of his marital community; PHILLIP HUSTON, individually and as part of his marital community; KENNETH ADAMSON, individually and as part of his marital community; JOHN DOES, I-X, NO. CV-04-5125-FVS PLAINTIFF'S RESPONSE TO MOTION TO DISMISS SECOND AMENDED FIRST AMENDED] COMPLAINT

[JURY DEMAND]

COMES NOW, Plaintiff James S. Gordon, Jr. and, by and through undersigned counsel, responds to Defendants' Motion To Dismiss Second Amended First Amended Complaint.

Dockets.Justia.com

Case 2:04-cv-05125-FVS

Document 536

Filed 09/22/2007

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The Defendants motion to dismiss rests entirely on the proposition that the Plaintiff's Second Amended First Amended Complaint (Dkt. #513) (hereafter the "Complaint") fails to comply with the Court's Order of July 9, 2007 (Dkt. #512) (hereafter "the Court's Order"). As such, the Defendant's motion fails completely. Not only is it plain that the Plaintiff's Complaint complied with the Court's Order, it is equally plain that the Complaint actually provides substantially more detail than required by the Court's Order, and thus provides the Defendants substantially more information than even the Court required. In its Order, the Court stated:

"the Plaintiff shall file an amended pleading setting forth: 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 Plaintiff claims that Impulse sent the emails."

While the Court did not require Plaintiff to do so, Plaintiff made the actual emails that form the basis of the Plaintiff's claims an exhibit to the Complaint. Thus, Plaintiff has gone above and beyond the Court's mere requirement that the Plaintiff provide "the number of emails at issue," and has provided the actual emails
NO. CV-05-5079-FVS PLAINTIFF'S RESPONSE TO MOTION TO DISMISS SECOND AMENDED FIRST AMENDED COMPLAINT Page 2 of 6 i.JUSTICE LAW, P.C. PO Box 25817 Seattle, WA 98165-1317 Phone/Fax: [phone]

Case 2:04-cv-05125-FVS

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themselves.

Each of these emails contain the exact date and time that each of the emails was sent, as well as the exact addresses to which the emails were sent, and the domain names from which each was sent for each of the emails. Thus, rather than merely providing a range of dates (which was all that was required by the Court's Order), the Complaint contains the exact time and date each and every email was sent. Again, the Complaint goes above and beyond the Court's Order. Similarly, rather than merely providing a summary of the addresses and domain names that received the emails (which was all that was required by the Court's Order), the Complaint now contains the exact addresses and domain names for each email. Plainly, the Plaintiff has again provided far more information than required by the Court.

Finally, the Court's Order also required that the Plaintiff provide "a brief summary of the factual basis Plaintiff claims that Impulse sent the emails." Complying with this portion of the Court's Order was not difficult. The Defendants are indisputably a company that exists entirely to send email marketing, and the emails in question, attached as an exhibit to the Complaint, have the Defendant's name printed on them. In paragraphs 3.19 through 3.20 of the Complaint, the Plaintiff went so far as to attach printed versions of examples of these emails, calling out the specific
NO. CV-05-5079-FVS PLAINTIFF'S RESPONSE TO MOTION TO DISMISS SECOND AMENDED FIRST AMENDED COMPLAINT Page 3 of 6 i.JUSTICE LAW, P.C. PO Box 25817 Seattle, WA 98165-1317 Phone/Fax: [phone]

Case 2:04-cv-05125-FVS

Document 536

Filed 09/22/2007

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portions of example emails where the Defendant's name appears. Again, Plaintiff has more than complied with the Court's requirement that the Plaintiff provide a "brief summary of the factual basis Plaintiff claims that Impulse sent the emails."

Notably, and despite the Defendant's claims to the contrary, the Court did NOT require Plaintiff to include ANY recitation or summary of why the Plaintiff claimed that each of the emails sent by the Defendant violated the statutes. Rather, the Court's Order only required that the Plaintiff provide a summery of the evidence that the Defendant sent the emails. Despite the fact that the Court did not make any such requirement, again, Plaintiff provided significantly more details than the Court's Order required.

Not only did the Plaintiff amend his complaint to set forth "a brief summary of the factual basis Plaintiff claims that Impulse sent the emails," the Plaintiff also included a summary, complete with examples, of why the Plaintiff believed that these emails violated the statutes, complete with examples and exhibits. At paragraphs 3.9 through 3.14 in the Complaint, the Plaintiff described the Plaintiff's extensive efforts to get the Defendant to stop sending the Plaintiff spam. For years, despite all of these efforts, the Defendant continued to send the Plaintiff spam in violation of the statutes. Paragraphs 3.9 through 3.14 in the Complaint
NO. CV-05-5079-FVS PLAINTIFF'S RESPONSE TO MOTION TO DISMISS SECOND AMENDED FIRST AMENDED COMPLAINT Page 4 of 6 i.JUSTICE LAW, P.C. PO Box 25817 Seattle, WA 98165-1317 Phone/Fax: [phone]

Case 2:04-cv-05125-FVS

Document 536

Filed 09/22/2007

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further show how the Defendant uses various ruses to hide its identity, such as registering domains in the name of non-existent entities, also in violation of the statutes.

In its brief, the Defendant claims that the Court's Order required the Plaintiff to explain how each and every email at issue violates the statute. A plain reading of the Court's Order demonstrates that it contains no such requirement, and the Plaintiff is being disingenuous in leading the Court to believe that the Court's Order contained this requirement when, in fact, it did not. Nevertheless, it is clear that even if the Court did make this requirement, (which would be well beyond any requirement of notice pleading), the Plaintiff has complied. At a minimum, the Plaintiff has shown that each and every email at issue violates the law because the Defendant sent them after they had been asked repeatedly to stop.

In summary, the Court should deny the Defendant's motion not only because the Plaintiff's Second Amended First Amended Complaint (Dkt. #513) complies with the Court's Order of July 9, 2007, but also because the Plaintiff's Complaint provides vastly more detail and explanation of the Plaintiff's claims than is required under the Federal Rules and/or to satisfy notice pleading.

NO. CV-05-5079-FVS PLAINTIFF'S RESPONSE TO MOTION TO DISMISS SECOND AMENDED FIRST AMENDED COMPLAINT

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i.JUSTICE LAW, P.C. PO Box 25817 Seattle, WA 98165-1317 Phone/Fax: [phone]

Case 2:04-cv-05125-FVS

Document 536

Filed 09/22/2007

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DATED this 22nd day of September, 2007.

i.JUSTICE LAW, P.C.

/s/ Robert J. Siegel__________ Robert J. Siegel, WSBA #17312 Attorneys for Plaintiffs

Certificate of Service I, hereby, certify that on September 22, 2007, we filed this pleading with this Court. The Clerk of the Court will provide electronic notification system using the CM/ECF, which will send an electronic copy of this Notice to: Floyd E. Ivey; Sean Moynihan; Stacy Wolery. I further certify that I have served the foregoing to the following non-CM/ECF participants by other means: Bonnie Gordon; Jonathan Gordon; James S. Gordon, III; Jamila Gordon; Emily Abbey; and Hon. Harld D. Clarke, Jr. /S/ Robert J. Siegel Robert J. Siegel, WSBA #17312 Attorneys for Plaintiffs

NO. CV-05-5079-FVS PLAINTIFF'S RESPONSE TO MOTION TO DISMISS SECOND AMENDED FIRST AMENDED COMPLAINT

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i.JUSTICE LAW, P.C. PO Box 25817 Seattle, WA 98165-1317 Phone/Fax: [phone]