Omni Innovations LLC et al v. BMG Music Publishing NA Inc et al

Filing 10

(STRICKEN, as per MO, docket no. 11 ). Second AMENDED COMPLAINT against defendant(s) BMG Columbia House Inc, filed by Omni Innovations LLC.(Siegel, Robert) Modified/text on 3/22/2007 (CL, ).

Omni Innovations LLC et al v. BMG Music Publishing NA Inc et al

Doc. 10

Case 2:06-cv-01350-JCC

Document 10

Filed 03/21/2007

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i.Justice Law, P.C.
1325 Fourth Ave., Suite 940 Seattle, WA 98101 Phone: [phone] Fax: [phone]

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON, SEATTLE OMNI INNOVATIONS, LLC, a Washington Limited Liability company; and JAMES S. GORDON, JR., a married individual, Plaintiffs, v. BMG COLUMBIA HOUSE, INC., a New York corporation; and JOHN DOES, I-X, Defendants, PARTIES, JURISDICTION, VENUE 1. Plaintiff OMNI INNOVATIONS, LLC, (hereinafter "OMNI") is a Washington limited liability company duly licensed and registered with the State of Washington, with its principal place of business in Franklin County, Washington. 2.
3.

NO. CV6-1350 JCC [SECOND] AMENDED COMPLAINT

Plaintiff JAMES S. GORDON, JR., (hereinafter "GORDON") is a married individual residing in Franklin County, Washington. On information and belief, plaintiffs allege that Defendant BMG COLUMBIA HOUSE, INC., ("BMG") is a New York corporation, with its principal places of business in the states of New York and California.

Dockets.Justia.com

Case 2:06-cv-01350-JCC

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4. 5. 6. 7.

Jurisdiction is proper pursuant to 28 U.S.C. §1331 (federal question) and 28 U.S.C. §1332 (diversity). This Court has supplemental jurisdiction of state law claims pursuant to U.S.C. § 1367. Venue is proper pursuant to 28 U.S.C. §1391. From at least August 2003 through May 2005, Plaintiff GORDON provided and enabled computer access for multiple users to a computer server that provides access to the Internet.

8. 9.

From and after May 2005, Plaintiff OMNI provided and enabled computer access for multiple users to a computer server that provides access to the Internet. The domain names served by Plaintiffs or one of Plaintiffs include: anthonycentral.com, chiefmusician.net, ehahome.com, itdidnotendright.com, jammtomm.com, jaycelia.com, celiajay.com, jaykaysplace.com, rcw19190020.com, and gordonworks.com (collectively the "Domains" and individually and generically a "Domain").

10.

At all times material hereto, for the Domains and each of them, the information that all e-mail addresses at each Domain (the "Recipient Addresses") belong to Washington residents was and is available upon request from the registrant of each Domain, each registrant being a Washington resident and each Domain being registered with a Washington address.

11.

During the time period of approximately August 2003 through present, Plaintiffs received at the Domains electronic-mail messages (collectively the "E-mails" or individually and generically as an "Email").

12.

The E-mails, and each of them, were received by Plaintiffs', and/or others receiving email through Plaintiffs' internet access services serving the Domains. Each of the E-mails misrepresents or obscures information in identifying the point of origin or the transmission path thereof, and thereby violate the Washington CEMA (19.190 et seq.), and further each of these E-mails contains header information that is

13.

FIRST AMENDED COMPLAINT FOR DAMAGES, PENALTIES, ETC. -2

i.Justice Law, P.C.
1325 Fourth Ave., Suite 940 Seattle, WA 98101 Phone: [phone] Fax: [phone]

Case 2:06-cv-01350-JCC

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materially false or materially misleading, and thereby violate Federal Can-Spam Act of 2003 ( ). The foregoing violations include without limitation: "subject" lines; "from" lines; and other header information such as: IP address and host name information do not match, or are missing or false, in the "from" and "by" tokens in the Received header field; and dates and times of transmission are deleted or obscured. On information and belief, Plaintiffs allege that some of the E-mails used the Internet domain name of a third party or third parties without permission of that third party or those third parties. Defendants initiated the transmission of the E-mails, and each of them. In the alternative, Defendants each conspired or otherwise acted in collusion with another or others or assisted another or others to transmit the E-mails, and each of them. At all times material hereto, Defendants knew or had reason to know that the Recipient Addresses, and each of them, were and are held by a Washington resident.

FIRST CAUSE OF ACTION ­ CAN-SPAM ACT

15 U.S.C. §7701 et seq. On the basis of the facts set forth hereinabove, Defendants initiated the transmission of the E-mails, and each of them, to a protected computer in violation of 15 U.S.C. §7704(a), causing damage to Plaintiffs GORDON and OMNI as the providers of the Internet access service receiving each such E-mail in the amount of $100 for each such E-mail, as provided in 15 U.S.C. §7706 (g) (3). Defendants did willfully and knowingly so act in violation of the provisions of 15 U.S.C. §7701 et seq.

FIRST AMENDED COMPLAINT FOR DAMAGES, PENALTIES, ETC. -3

i.Justice Law, P.C.
1325 Fourth Ave., Suite 940 Seattle, WA 98101 Phone: [phone] Fax: [phone]

Case 2:06-cv-01350-JCC

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Filed 03/21/2007

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SECOND CAUSE OF ACTION ­ CEMA RCW 19.190.010 - .070 On the basis of the facts set forth hereinabove, Defendants initiated, conspired with another to initiate, or assisted the transmission of the E-mails, and each of them, in violation of RCW 19.190.020, causing damage to Plaintiffs GORDON and OMNI as the interactive computer service receiving each such E-mail in the amount of $1,000 for each such E-mail, as provided in RCW 19.190.040 (2). THIRD CAUSE OF ACTION ­ CONSUMER PROTECTION ACT Ch. 19.86 RCW On the basis of the facts set forth hereinabove, Defendants initiated the E-mails, and each of them, in violation of RCW 19.190.030 and Chapter 19.86 RCW, causing damage to Plaintiffs GORDON and OMNI as the interactive computer service receiving each such E-mail in the amount of $1,000 for each such E-mail, as provided in RCW 19.190.040 (2).

REQUEST FOR RELIEF Plaintiff respectfully requests the following relief: 1. Entry of a Judgment against the Defendant in the amount of $1,100 per E-mail (a total of $3,580,500), plus such other and further damages as may be proved at trial, plus treble damages to the extent permitted by Chapter 19.86 RCW and to the extent permitted by 15 U.S.C. §7706 (g) (3) (C), plus prejudgment and post-judgment interest at the highest rate permitted by law, plus cost of suit and reasonable attorney fees pursuant to Chapter 19.86 RCW and 15 U.S.C. §7706 (g) (4);

FIRST AMENDED COMPLAINT FOR DAMAGES, PENALTIES, ETC. -4

i.Justice Law, P.C.
1325 Fourth Ave., Suite 940 Seattle, WA 98101 Phone: [phone] Fax: [phone]

Case 2:06-cv-01350-JCC

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2. Entry of a permanent injunction against the Defendant prohibiting the Defendant from sending or causing to be sent electronic mail messages of any kind or nature to e-mail addresses at the Domains, hereinabove. 3. Such other and further relief as the Court deems just and equitable in the premises. RESPECTFULLY SUBMITTED this 21st day of March, 2007. i.Justice Law, P.C. /S/ Robert J. Siegel Robert J. Siegel, WSBA #17312 Attorney for Plaintiffs DOUGLAS E. MCKINLEY, JR Attorney at Law /S/ Douglas E. McKinley, Jr. Douglas E. McKinley, Jr., WSBA#20806 Attorney for Plaintiffs

FIRST AMENDED COMPLAINT FOR DAMAGES, PENALTIES, ETC. -5

i.Justice Law, P.C.
1325 Fourth Ave., Suite 940 Seattle, WA 98101 Phone: [phone] Fax: [phone]

Case 2:06-cv-01350-JCC

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Filed 03/21/2007

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CERTIFICATE OF SERVICE I hereby certify that on March 21, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Derek A. Newman; Roger M. Townsend
I.JUSTICE

LAW, P.C.

BY: /S/ ROBERT J. SIEGEL ROBERT J. SIEGEL WASHINGTON BAR NO. 17312 1325 FOURTH AVENUE, SUITE 940 SEATTLE, WA 98101 TELEPHONE: [phone] FAX: [phone] [e-mail]

FIRST AMENDED COMPLAINT FOR DAMAGES, PENALTIES, ETC. -6

i.Justice Law, P.C.
1325 Fourth Ave., Suite 940 Seattle, WA 98101 Phone: [phone] Fax: [phone]