Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
This document is a court order granting the plaintiff's application to remand a case back to state court from federal court. The plaintiff had filed a complaint against the defendant in state court for claims related to the use of the plaintiff's likeness in a video game. The defendant removed the case to federal court, arguing the claims were preempted by federal copyright law. The court analyzed the relevant legal standards for removal and copyright preemption. Applying a two-part test, the court determined the plaintiff's claims were not preempted as they involved misappropriation of the plaintiff's name and likeness beyond what was agreed to, rather than contesting the defendant's copyright. The court therefore granted the application to remand the case back to
Establishing violations of Computer Fraud and Abuse ActDavid Sweigert
This document is a court opinion from the Ninth Circuit Court of Appeals regarding David Nosal's appeal of his criminal convictions. The court affirmed Nosal's convictions under the Computer Fraud and Abuse Act for unauthorized access to his former employer's computer system after his credentials were revoked. It also affirmed his convictions for trade secret theft under the Economic Espionage Act. However, the court vacated part of the restitution order and remanded for reconsideration of the attorneys' fees award.
This document is a petition for review filed with the Supreme Court of California seeking review of two appellate court decisions related to a legal malpractice case. The petitioners (the plaintiff and additional judgment debtors from the underlying case) are asking the Supreme Court to grant review of the present matter and hold it pending the outcome of a related case also pending before the Supreme Court. If the petitioners prevail in the related case, they would be entitled to reversal of the orders in the present matter. Granting review and holding the present matter would prevent those orders from becoming final while the related case is still pending.
This document is a complaint filed by Central Asia Institute against Philadelphia Indemnity Insurance Company regarding insurance coverage. It summarizes that CAl had an insurance policy with Philadelphia to cover certain legal claims. CAl and its executive director Greg Mortenson were sued in two matters (the "Pfau Litigation" and "AG Matter") and incurred legal defense costs. However, Philadelphia refused to fully cover and advance these defense costs, in breach of the insurance contract. CAl is suing Philadelphia for declaratory relief and damages for its failure to honor coverage obligations.
This document is a motion filed by the plaintiffs' attorneys requesting permission from the court to file a fourth amended complaint. Specifically, the motion requests: (1) changing the class definition; (2) removing Michele Reinhart as a plaintiff and adding George and Susie Pfau; and (3) adding claims against additional defendants including Central Asia Institute and MC Consulting for alleged RICO violations. The motion also details why the plaintiffs' counsel believes the additional claims and parties are necessary.
This document discusses spoliation of evidence claims and the preservation and destruction of evidence. It covers:
1) What constitutes evidence, including documents, testimony, tangible objects, video footage, computer data, logs, witness statements, samples, recordings, and more.
2) How the destruction of evidence can lead to an "adverse presumption" against the destroying party, meaning a jury may presume the evidence would have been unfavorable to them.
3) Available remedies for spoliation include discovery sanctions like fines, dismissal, or default judgment, as well as allowing an adverse presumption instruction to the jury.
4) Defenses to spoliation claims include if litigation was not foreseen,
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
The document summarizes a court case involving defendants Robert Martins and Antonio Guastella who were convicted of money laundering, wire fraud, and conspiracy. The defendants appealed their convictions, arguing that the admission of their co-conspirators' guilty plea allocutions violated their rights under the Confrontation Clause. The court found that (1) admitting the plea allocutions did violate the defendants' rights given they could not cross-examine the co-conspirators, but (2) the error was harmless because the evidence against the defendants, such as documentary evidence establishing they set up fake banks together, was overwhelming. The convictions were therefore upheld.
Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
This document is a court order granting the plaintiff's application to remand a case back to state court from federal court. The plaintiff had filed a complaint against the defendant in state court for claims related to the use of the plaintiff's likeness in a video game. The defendant removed the case to federal court, arguing the claims were preempted by federal copyright law. The court analyzed the relevant legal standards for removal and copyright preemption. Applying a two-part test, the court determined the plaintiff's claims were not preempted as they involved misappropriation of the plaintiff's name and likeness beyond what was agreed to, rather than contesting the defendant's copyright. The court therefore granted the application to remand the case back to
Establishing violations of Computer Fraud and Abuse ActDavid Sweigert
This document is a court opinion from the Ninth Circuit Court of Appeals regarding David Nosal's appeal of his criminal convictions. The court affirmed Nosal's convictions under the Computer Fraud and Abuse Act for unauthorized access to his former employer's computer system after his credentials were revoked. It also affirmed his convictions for trade secret theft under the Economic Espionage Act. However, the court vacated part of the restitution order and remanded for reconsideration of the attorneys' fees award.
This document is a petition for review filed with the Supreme Court of California seeking review of two appellate court decisions related to a legal malpractice case. The petitioners (the plaintiff and additional judgment debtors from the underlying case) are asking the Supreme Court to grant review of the present matter and hold it pending the outcome of a related case also pending before the Supreme Court. If the petitioners prevail in the related case, they would be entitled to reversal of the orders in the present matter. Granting review and holding the present matter would prevent those orders from becoming final while the related case is still pending.
This document is a complaint filed by Central Asia Institute against Philadelphia Indemnity Insurance Company regarding insurance coverage. It summarizes that CAl had an insurance policy with Philadelphia to cover certain legal claims. CAl and its executive director Greg Mortenson were sued in two matters (the "Pfau Litigation" and "AG Matter") and incurred legal defense costs. However, Philadelphia refused to fully cover and advance these defense costs, in breach of the insurance contract. CAl is suing Philadelphia for declaratory relief and damages for its failure to honor coverage obligations.
This document is a motion filed by the plaintiffs' attorneys requesting permission from the court to file a fourth amended complaint. Specifically, the motion requests: (1) changing the class definition; (2) removing Michele Reinhart as a plaintiff and adding George and Susie Pfau; and (3) adding claims against additional defendants including Central Asia Institute and MC Consulting for alleged RICO violations. The motion also details why the plaintiffs' counsel believes the additional claims and parties are necessary.
This document discusses spoliation of evidence claims and the preservation and destruction of evidence. It covers:
1) What constitutes evidence, including documents, testimony, tangible objects, video footage, computer data, logs, witness statements, samples, recordings, and more.
2) How the destruction of evidence can lead to an "adverse presumption" against the destroying party, meaning a jury may presume the evidence would have been unfavorable to them.
3) Available remedies for spoliation include discovery sanctions like fines, dismissal, or default judgment, as well as allowing an adverse presumption instruction to the jury.
4) Defenses to spoliation claims include if litigation was not foreseen,
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
The document summarizes a court case involving defendants Robert Martins and Antonio Guastella who were convicted of money laundering, wire fraud, and conspiracy. The defendants appealed their convictions, arguing that the admission of their co-conspirators' guilty plea allocutions violated their rights under the Confrontation Clause. The court found that (1) admitting the plea allocutions did violate the defendants' rights given they could not cross-examine the co-conspirators, but (2) the error was harmless because the evidence against the defendants, such as documentary evidence establishing they set up fake banks together, was overwhelming. The convictions were therefore upheld.
The district court properly dismissed Janis Carmona's complaint under the Rooker-Feldman doctrine. Janis sought to overturn state court decisions in federal district court, which does not have jurisdiction to review state court judgments. The Rooker-Feldman doctrine bars lower federal courts from reviewing state court decisions. Janis' only recourse was to appeal to the U.S. Supreme Court, which denied her petition for certiorari. The district court correctly determined it lacked subject matter jurisdiction over Janis' complaint seeking to invalidate the state court rulings.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
This document summarizes key issues in removing bad faith litigation from state to federal court, including improper joinder and establishing the amount in controversy. It also discusses procedural issues like concurrent litigation, choice of law analyses, and enforcing or ignoring choice of law clauses in insurance contracts. The document is from a national forum on bad faith claims and litigation, and provides an overview of removal procedures and the tests used to determine improper joinder or the applicability of state versus federal law.
San Diego attorney Scott McMillan sued Darren Chaker to remove public records about McMillan's being named in a child molestation investigation. The report is contained as an exhibit in San Diego Superior Court Case No. 37-2017-00036344-CU-NP-CTL and can also be seen on this profile.
Nonetheless, Scott McMillan San Diego attorney suffered a miserable loss in San Diego federal court, then appealed the loss to the Ninth Circuit. San Diego attorney Scott McMillan also filed an identical lawsuit in San Diego Superior Court, Case No. 37-2017-00036344-CU-NP-CTL. As expected, the Ninth Circuit found the lawsuit against Darren Chaker was meritless.
Now, San Diego attorney Scott McMillan is facing two anti-SLAPP motions in San Diego Superior Court and of course the inevitable embarrassment of losing his case, which is almost as bad as Scott McMillan having been sued twice recently for fraud and legal malpractice.
Doc577 complaint action against officers directors legal audit etcmalp2009
This complaint was filed by Matthew D. Orwig, the Chapter 11 Trustee for FirstPlus Financial Group, Inc., against various former officers and directors of FirstPlus, as well as outside attorneys, accountants, and business valuation experts. The complaint alleges claims including breach of fiduciary duty, professional negligence, and conspiracy related to these defendants' roles in the takeover of FirstPlus, misappropriation of its assets, and misleading public filings. The complaint seeks damages from eight categories of defendants.
This document is a motion for a stay of the mandate pending a petition for certiorari to the Supreme Court. It was filed by Howard K. Stern on behalf of Vickie Lynn Marshall's estate following the 9th Circuit's denial of rehearing. The motion argues that substantial questions will be presented in the cert petition regarding the scope of bankruptcy courts' power over compulsory counterclaims. It contends the 9th Circuit's new test conflicts with other circuits and Supreme Court precedent. The declaration also asserts the petition raises important issues of bankruptcy practice that require uniformity.
Confessions of Judgement in Kyko Global Inc vs Madhavi Vuppalapati & Prithvi ...mh37o
The judgement was passed in favour of Plaintiffs Kyko Global Inc. Confessions of Judgement in Kyko Global Inc vs Madhavi Vuppalapati & Prithvi Info Solutions Ltd
Motion To Dismiss Raanan Katz Copyright Lawsuitrkcenters
Miami Heat minority owner Raanan Katz does not appreciate the photo of himself circulating on the internet, so he is suing Google and a Miami blogger for refusing to take it down.
And Raanan Katz, RK Centers Owner, apparently has enough money to sue anybody else who posts the photo.
Defendant Roberts filed a motion to dismiss Plaintiff Linda Smith's negligence complaint for failure to state a claim or for a more definite statement. Roberts argues that Smith failed to properly plead the necessary elements of negligence - that Roberts owed a legal duty, breached that duty, and that the breach caused Smith's injury and damages. Specifically, Smith did not allege that Roberts owed her a legal duty. Roberts requests that the court dismiss Smith's claim or require her to provide a more definite statement that properly pleads negligence.
This document is an order from a United States District Court regarding cross-motions for summary judgment in a case involving a plaintiff who was imprisoned at a halfway house operated by the defendant. The court provides background on the case, including that the plaintiff sued over alleged unlawful seizure of his property and constitutional violations. The court evaluates the motions using the standard for summary judgment, granting the defendant's motion and denying the plaintiff's motion.
Ms. Randolph is appealing her conviction and sentence. She filed an emergency motion for release pending appeal after the district court denied her request. She argues that she meets the criteria for release: (1) she does not pose a risk of flight or danger; and (2) her appeal raises substantial questions that could result in reversal or a new trial. Specifically, she cites issues with the sufficiency of evidence, discovery violations, and errors in the government's billing spreadsheets presented at trial. She requests that the court grant her release pending resolution of her appeal.
MDFL - Order Denying Motion to Dismiss Trade Secret & Fraud ClaimsPollard PLLC
In this order, the United States District Court for the Middle District of Florida, Tampa Division, denies the defendants' motions to dismiss claims for breach of contract, theft of trade secrets in violation of the Defend Trade Secrets Act, 18 USC 1836 et. seq., fraud and aiding and abetting fraud.
In relevant part, the Court rejects the defendants' efforts to impose a summary judgment like burden at the pleading stage. Notable holdings include: (1) The question of whether information constitutes a trade secret is a question of fact normally resolved by a jury after full presentation of evidence. (2) A claim for misappropriation may exist not only where the defendant itself is alleged to have stolen trade secrets, but where the defendant is alleged to have obtained the trade secrets while knowing that they were acquired by improper means. (3) The allegation that a defendant induced a plaintiff to enter an NDA with no intention of honoring it states a claim for fraud in the inducement that is not barred by the independent tort doctrine.
The plaintiff is represented by Fort Lauderdale, Florida based Pollard PLLC. The firm has extensive experience litigating complex non-compete, trade secret, trademark and unfair competition claims. Their office can be reached at 954-332-2380.
The document is a court opinion from the Ninth Circuit Court of Appeals regarding a copyright infringement case brought on behalf of a crested macaque monkey named Naruto. The court had to determine whether Naruto had standing to sue under both Article III of the Constitution and the Copyright Act. While the court found Naruto had Article III standing based on precedent, it ultimately concluded that Naruto lacked statutory standing under the Copyright Act because the Act does not expressly authorize animals to file copyright infringement suits. The court affirmed the lower court's dismissal of the case.
Herero Peoples Reparations Corp v Deutsche Bank AGLiana Prieto
This document summarizes a court case from the United States District Court for the District of Columbia regarding claims brought by the Herero People's Reparations Corporation against Deutsche Bank AG. The plaintiffs allege that during the late 19th and early 20th centuries, Deutsche Bank engaged in genocide, extermination, enslavement, and other atrocities against the Herero Tribe of Namibia in cooperation with the German government. Deutsche Bank filed a motion to dismiss, arguing the court lacks jurisdiction and the plaintiffs failed to state a valid claim. The court must determine if it has authority to consider the case on its merits before ruling on the motion to dismiss.
Order Granting Addition Of Susan Brown As DefendantJRachelle
This order grants the plaintiff's motion to amend his complaint to add new parties and factual allegations learned during discovery. The plaintiff seeks to add three individuals ("Doe defendants") identified during depositions as being involved in removing property from the estate. The plaintiff also seeks to add an attorney and her law firm who received estate property from one of the defendants. The only opposition comes from the attorney and law firm, but the court finds that allowing the amendments would not be prejudicial or futile. Therefore, the plaintiff's motion to amend is granted.
This document is a letter from Plaintiffs' counsel opposing a motion to dismiss from Defendant Unigestion Holding. The letter argues that the complaint provides sufficient details about Unigestion's involvement in an alleged conspiracy to illegally impose fees on phone calls and money transfers to Haiti in violation of antitrust laws. The letter cites evidence from a New York Times article and videos showing an agreement was made between Unigestion and other defendants to fix prices. The letter also argues the complaint meets pleading standards and that dismissal would be improper at this stage.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
RK Associates, Raanan Katz Were Alleged In Unlawful Ejectment In Miamirkcenters
Defendants do not dispute, that security guards threw Plaintiffs off the property and that RK Associates and MWI changed the locks on the bank branch's office doors. Furthermore, Plaintiffs allege conversion of their remaining personal property by RK Associates and MWI after they were escorted from the premises. Judging from the record, the Court finds that there is a possibility that Plaintiffs can establish a cause of action against the resident defendant. Triggs, 154 F.3d at 1287. At the very least, Plaintiffs have a possibility of stating a viable cause of action against the landlord RK Associates for conversion of their equipment and for unlawful ejectment. Defendants themselves note that joinder is deemed legitimate when such possibility exists.
This document contains Plaintiff Traian Bujduveanu's objections to a report and recommendations regarding Defendants' motion to dismiss. The Plaintiff objects on several grounds: (1) that the judge did not properly consider all documents submitted and failed to acknowledge admissions by Defendants; (2) that the Fourth Amendment protects third parties from searches of their property; (3) that requests for religious accommodation were denied; and (4) that conditions at the halfway house violated the Eighth Amendment's prohibition on cruel and unusual punishment. The Plaintiff argues these objections demonstrate the complaint should not be dismissed.
1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CA.docxjoyjonna282
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
------------------------------------------------------X
DOUGLAS SMITH,
Plaintiff
Against DECISION
ON MOTION TO
DISMISS
JANE JOHNSON,
PISSEDPRODUCER.COM, INC,
Defendants
------------------------------------------------------X
Haas, J.,
Defendant Jane Johnson (“Johnson”) lives in Portland, Oregon, and operates
defendant corporation, pissedproducer.com (the “website”). The website is devoted to
allowing service providers to complain about actions of consumers. According to the
website’s terms, business owners or service providers are allowed to post feedback about
consumers “that other producers should be wary of.” The website also allows aggrieved
producers to publish the names, addresses and other personal information about
consumers, along with audio and video files that relate to the transaction.
On June 12, YR-01, Brenda James (“James”) posted a story regarding plaintiff,
Douglas Smith (“Smith”) in which she accused him of, inter alia, lying about his
conversations with her, behaving antagonistically towards her and unjustifiably
complaining about her business. She also posted information about Smith’s name,
address and license plate number and a video that showed a confrontation between her
and Smith.
Johnson knowingly allowed this information to remain on her site in spite of
Smith’s protest.
2
Smith brought the present action against Johnson and the corporation that holds
the website alleging defamation, invasion of privacy for intrusion upon seclusion,
invasion of privacy for misappropriation of name and likeness and intentional infliction
of emotional distress against all three defendants.
Subject matter jurisdiction is established under 28 U.S.C. § 1332 (diversity
jurisdiction) because plaintiff is a resident of California and defendants are residents of
Oregon and the amount in controversy is more than $75,000. This is undisputed.
Johnson and the website have moved to dismiss the complaint based on FRCP
Rule 12(b)(2), alleging that this court does not have personal jurisdiction over her and
under FRCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted
with respect to each of the four counts of the complaint.
For the reasons set forth below, I deny the defendant’s motion to dismiss with
respect to each count.
Personal Jurisdiction
Defendant argues that this court lacks personal jurisdiction over Johnson and the
website because they operate exclusively in the state of Oregon and have insufficient
contacts with California to subject them to personal jurisdiction in the state of California.
Under the due process clause of the 14th amendment to the United States
Constitution, a state may exercise long arm jurisdiction over an out-of-state defendant
only if the defendant has “certain minimum contacts with it s ...
Plaintiff Phillip Lee Walters filed a motion to remand a negligence lawsuit back to state court that was removed to federal court by defendants Samuel Patterson and Keen Transport based on diversity jurisdiction. The plaintiff argues that removal was improper because the defendants did not establish that the amount in controversy exceeds $75,000, as is required for diversity jurisdiction. The plaintiff notes that the complaint does not specify a damages amount and contends that the defendants rely only on unsupported assumptions to claim the threshold is met rather than providing evidence, as is required. The plaintiff requests that the case be remanded back to state court due to lack of federal jurisdiction.
The district court properly dismissed Janis Carmona's complaint under the Rooker-Feldman doctrine. Janis sought to overturn state court decisions in federal district court, which does not have jurisdiction to review state court judgments. The Rooker-Feldman doctrine bars lower federal courts from reviewing state court decisions. Janis' only recourse was to appeal to the U.S. Supreme Court, which denied her petition for certiorari. The district court correctly determined it lacked subject matter jurisdiction over Janis' complaint seeking to invalidate the state court rulings.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
This document summarizes key issues in removing bad faith litigation from state to federal court, including improper joinder and establishing the amount in controversy. It also discusses procedural issues like concurrent litigation, choice of law analyses, and enforcing or ignoring choice of law clauses in insurance contracts. The document is from a national forum on bad faith claims and litigation, and provides an overview of removal procedures and the tests used to determine improper joinder or the applicability of state versus federal law.
San Diego attorney Scott McMillan sued Darren Chaker to remove public records about McMillan's being named in a child molestation investigation. The report is contained as an exhibit in San Diego Superior Court Case No. 37-2017-00036344-CU-NP-CTL and can also be seen on this profile.
Nonetheless, Scott McMillan San Diego attorney suffered a miserable loss in San Diego federal court, then appealed the loss to the Ninth Circuit. San Diego attorney Scott McMillan also filed an identical lawsuit in San Diego Superior Court, Case No. 37-2017-00036344-CU-NP-CTL. As expected, the Ninth Circuit found the lawsuit against Darren Chaker was meritless.
Now, San Diego attorney Scott McMillan is facing two anti-SLAPP motions in San Diego Superior Court and of course the inevitable embarrassment of losing his case, which is almost as bad as Scott McMillan having been sued twice recently for fraud and legal malpractice.
Doc577 complaint action against officers directors legal audit etcmalp2009
This complaint was filed by Matthew D. Orwig, the Chapter 11 Trustee for FirstPlus Financial Group, Inc., against various former officers and directors of FirstPlus, as well as outside attorneys, accountants, and business valuation experts. The complaint alleges claims including breach of fiduciary duty, professional negligence, and conspiracy related to these defendants' roles in the takeover of FirstPlus, misappropriation of its assets, and misleading public filings. The complaint seeks damages from eight categories of defendants.
This document is a motion for a stay of the mandate pending a petition for certiorari to the Supreme Court. It was filed by Howard K. Stern on behalf of Vickie Lynn Marshall's estate following the 9th Circuit's denial of rehearing. The motion argues that substantial questions will be presented in the cert petition regarding the scope of bankruptcy courts' power over compulsory counterclaims. It contends the 9th Circuit's new test conflicts with other circuits and Supreme Court precedent. The declaration also asserts the petition raises important issues of bankruptcy practice that require uniformity.
Confessions of Judgement in Kyko Global Inc vs Madhavi Vuppalapati & Prithvi ...mh37o
The judgement was passed in favour of Plaintiffs Kyko Global Inc. Confessions of Judgement in Kyko Global Inc vs Madhavi Vuppalapati & Prithvi Info Solutions Ltd
Motion To Dismiss Raanan Katz Copyright Lawsuitrkcenters
Miami Heat minority owner Raanan Katz does not appreciate the photo of himself circulating on the internet, so he is suing Google and a Miami blogger for refusing to take it down.
And Raanan Katz, RK Centers Owner, apparently has enough money to sue anybody else who posts the photo.
Defendant Roberts filed a motion to dismiss Plaintiff Linda Smith's negligence complaint for failure to state a claim or for a more definite statement. Roberts argues that Smith failed to properly plead the necessary elements of negligence - that Roberts owed a legal duty, breached that duty, and that the breach caused Smith's injury and damages. Specifically, Smith did not allege that Roberts owed her a legal duty. Roberts requests that the court dismiss Smith's claim or require her to provide a more definite statement that properly pleads negligence.
This document is an order from a United States District Court regarding cross-motions for summary judgment in a case involving a plaintiff who was imprisoned at a halfway house operated by the defendant. The court provides background on the case, including that the plaintiff sued over alleged unlawful seizure of his property and constitutional violations. The court evaluates the motions using the standard for summary judgment, granting the defendant's motion and denying the plaintiff's motion.
Ms. Randolph is appealing her conviction and sentence. She filed an emergency motion for release pending appeal after the district court denied her request. She argues that she meets the criteria for release: (1) she does not pose a risk of flight or danger; and (2) her appeal raises substantial questions that could result in reversal or a new trial. Specifically, she cites issues with the sufficiency of evidence, discovery violations, and errors in the government's billing spreadsheets presented at trial. She requests that the court grant her release pending resolution of her appeal.
MDFL - Order Denying Motion to Dismiss Trade Secret & Fraud ClaimsPollard PLLC
In this order, the United States District Court for the Middle District of Florida, Tampa Division, denies the defendants' motions to dismiss claims for breach of contract, theft of trade secrets in violation of the Defend Trade Secrets Act, 18 USC 1836 et. seq., fraud and aiding and abetting fraud.
In relevant part, the Court rejects the defendants' efforts to impose a summary judgment like burden at the pleading stage. Notable holdings include: (1) The question of whether information constitutes a trade secret is a question of fact normally resolved by a jury after full presentation of evidence. (2) A claim for misappropriation may exist not only where the defendant itself is alleged to have stolen trade secrets, but where the defendant is alleged to have obtained the trade secrets while knowing that they were acquired by improper means. (3) The allegation that a defendant induced a plaintiff to enter an NDA with no intention of honoring it states a claim for fraud in the inducement that is not barred by the independent tort doctrine.
The plaintiff is represented by Fort Lauderdale, Florida based Pollard PLLC. The firm has extensive experience litigating complex non-compete, trade secret, trademark and unfair competition claims. Their office can be reached at 954-332-2380.
The document is a court opinion from the Ninth Circuit Court of Appeals regarding a copyright infringement case brought on behalf of a crested macaque monkey named Naruto. The court had to determine whether Naruto had standing to sue under both Article III of the Constitution and the Copyright Act. While the court found Naruto had Article III standing based on precedent, it ultimately concluded that Naruto lacked statutory standing under the Copyright Act because the Act does not expressly authorize animals to file copyright infringement suits. The court affirmed the lower court's dismissal of the case.
Herero Peoples Reparations Corp v Deutsche Bank AGLiana Prieto
This document summarizes a court case from the United States District Court for the District of Columbia regarding claims brought by the Herero People's Reparations Corporation against Deutsche Bank AG. The plaintiffs allege that during the late 19th and early 20th centuries, Deutsche Bank engaged in genocide, extermination, enslavement, and other atrocities against the Herero Tribe of Namibia in cooperation with the German government. Deutsche Bank filed a motion to dismiss, arguing the court lacks jurisdiction and the plaintiffs failed to state a valid claim. The court must determine if it has authority to consider the case on its merits before ruling on the motion to dismiss.
Order Granting Addition Of Susan Brown As DefendantJRachelle
This order grants the plaintiff's motion to amend his complaint to add new parties and factual allegations learned during discovery. The plaintiff seeks to add three individuals ("Doe defendants") identified during depositions as being involved in removing property from the estate. The plaintiff also seeks to add an attorney and her law firm who received estate property from one of the defendants. The only opposition comes from the attorney and law firm, but the court finds that allowing the amendments would not be prejudicial or futile. Therefore, the plaintiff's motion to amend is granted.
This document is a letter from Plaintiffs' counsel opposing a motion to dismiss from Defendant Unigestion Holding. The letter argues that the complaint provides sufficient details about Unigestion's involvement in an alleged conspiracy to illegally impose fees on phone calls and money transfers to Haiti in violation of antitrust laws. The letter cites evidence from a New York Times article and videos showing an agreement was made between Unigestion and other defendants to fix prices. The letter also argues the complaint meets pleading standards and that dismissal would be improper at this stage.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
RK Associates, Raanan Katz Were Alleged In Unlawful Ejectment In Miamirkcenters
Defendants do not dispute, that security guards threw Plaintiffs off the property and that RK Associates and MWI changed the locks on the bank branch's office doors. Furthermore, Plaintiffs allege conversion of their remaining personal property by RK Associates and MWI after they were escorted from the premises. Judging from the record, the Court finds that there is a possibility that Plaintiffs can establish a cause of action against the resident defendant. Triggs, 154 F.3d at 1287. At the very least, Plaintiffs have a possibility of stating a viable cause of action against the landlord RK Associates for conversion of their equipment and for unlawful ejectment. Defendants themselves note that joinder is deemed legitimate when such possibility exists.
This document contains Plaintiff Traian Bujduveanu's objections to a report and recommendations regarding Defendants' motion to dismiss. The Plaintiff objects on several grounds: (1) that the judge did not properly consider all documents submitted and failed to acknowledge admissions by Defendants; (2) that the Fourth Amendment protects third parties from searches of their property; (3) that requests for religious accommodation were denied; and (4) that conditions at the halfway house violated the Eighth Amendment's prohibition on cruel and unusual punishment. The Plaintiff argues these objections demonstrate the complaint should not be dismissed.
1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CA.docxjoyjonna282
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
------------------------------------------------------X
DOUGLAS SMITH,
Plaintiff
Against DECISION
ON MOTION TO
DISMISS
JANE JOHNSON,
PISSEDPRODUCER.COM, INC,
Defendants
------------------------------------------------------X
Haas, J.,
Defendant Jane Johnson (“Johnson”) lives in Portland, Oregon, and operates
defendant corporation, pissedproducer.com (the “website”). The website is devoted to
allowing service providers to complain about actions of consumers. According to the
website’s terms, business owners or service providers are allowed to post feedback about
consumers “that other producers should be wary of.” The website also allows aggrieved
producers to publish the names, addresses and other personal information about
consumers, along with audio and video files that relate to the transaction.
On June 12, YR-01, Brenda James (“James”) posted a story regarding plaintiff,
Douglas Smith (“Smith”) in which she accused him of, inter alia, lying about his
conversations with her, behaving antagonistically towards her and unjustifiably
complaining about her business. She also posted information about Smith’s name,
address and license plate number and a video that showed a confrontation between her
and Smith.
Johnson knowingly allowed this information to remain on her site in spite of
Smith’s protest.
2
Smith brought the present action against Johnson and the corporation that holds
the website alleging defamation, invasion of privacy for intrusion upon seclusion,
invasion of privacy for misappropriation of name and likeness and intentional infliction
of emotional distress against all three defendants.
Subject matter jurisdiction is established under 28 U.S.C. § 1332 (diversity
jurisdiction) because plaintiff is a resident of California and defendants are residents of
Oregon and the amount in controversy is more than $75,000. This is undisputed.
Johnson and the website have moved to dismiss the complaint based on FRCP
Rule 12(b)(2), alleging that this court does not have personal jurisdiction over her and
under FRCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted
with respect to each of the four counts of the complaint.
For the reasons set forth below, I deny the defendant’s motion to dismiss with
respect to each count.
Personal Jurisdiction
Defendant argues that this court lacks personal jurisdiction over Johnson and the
website because they operate exclusively in the state of Oregon and have insufficient
contacts with California to subject them to personal jurisdiction in the state of California.
Under the due process clause of the 14th amendment to the United States
Constitution, a state may exercise long arm jurisdiction over an out-of-state defendant
only if the defendant has “certain minimum contacts with it s ...
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This letter requests a pre-motion conference regarding an anticipated motion to dismiss an amended complaint filed against Digicel Haiti. It summarizes that the amended complaint should be dismissed for failing to meet pleading standards under FRCP 8(a), 9(b), and 12(b)(6), and based on the act-of-state doctrine and forum non conveniens. Specifically, the letter argues that the amended complaint does not provide a short, plain statement of claims, engages in impermissible group pleading, lacks specific allegations of fraud, and requires invalidating acts of the Haitian government.
This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
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GS Holistic Court Opinion in Trademark DisputeMike Keyes
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This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
Hieleras ruled deprivation of constitutional rightsBryan Johnson
This order grants a preliminary injunction requiring the US Border Patrol to comply with its own guidelines for holding detainees, based on evidence that detainees' basic human needs were not being met. The court found the plaintiffs were likely to succeed on their claims that conditions violated detainees' due process rights by depriving them of adequate sleep, hygiene, medical care, food and water, and warmth. While acknowledging funding constraints, the court ruled constitutional rights cannot be denied for fiscal reasons and ordered compliance with guidelines to provide these basic needs as outlined in the Border Patrol's 2008 policy and TEDS standards.
San Diego Attorney Scott McMillan loses a federal lawsuit seeking a restraining order on the San Diego Sheriff's Department. As the court record demonstrates the basis for the motion was improper and the law did not support it.
Kristen Stevens, a Florida actress, sued Robert Peterson, a Washington actor, for defamation. Peterson and Stevens had a business and romantic relationship and were members of the social media site HEADSHOT, Inc. After photos emerged of Stevens with another man, Peterson posted defamatory statements about Stevens on HEADSHOT. These statements were seen by others and damaged Stevens' reputation in Florida. Stevens is opposing Peterson's motion to dismiss for lack of personal jurisdiction, arguing that the court has jurisdiction due to their ongoing relationship and Peterson intentionally defaming her, knowing she lived in Florida.
The document summarizes two cases where courts recognized a promissory estoppel claim against an employer - Roberts v. Geosource Drilling Services, Inc. and Hernandez v. UPS Supply Chain Solutions, Inc. In Roberts, the employee quit his job and prepared to work for Geosource in reliance on oral promises and a written contract, but Geosource rescinded the job offer. In Hernandez, the employee had actually moved from Illinois to Texas based on a job promise. Both courts found promissory estoppel claims based on the employees' detrimental reliance on the employers' promises.
This document is a memorandum and order from a United States District Court case involving claims brought by plaintiffs against defendants related to two books co-authored and authored by Greg Mortenson. The plaintiffs allege that the books, which were marketed and sold as nonfiction, contained fabrications. The court provides background on the plaintiffs, defendants, books in question, and procedural history of the case. It then discusses the standards for evaluating motions to dismiss under Rules 8, 9, and 12(b)(6) of the Federal Rules of Civil Procedure. Finally, the court analyzes the plaintiffs' twelve asserted causes of action.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
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PPT for ABA SAC 2018 of ICLC Tucson Conference 2018Seth Row
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Opinion granting plaintiffs' msj 17-02-10 reliance is required spending on ...Seth Row
US District Court, District of Oregon, order holding that insurer did not "rely" on insured's alleged misrepresentation by incurring expenses to investigate insured's loss
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This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
National union v. redbox order on msj august 7 2014 wd waSeth Row
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Judge Mosman avoided directly ruling on the application of SB 814 to the defense costs being sought by Schnitzer, instead holding that Schnitzer was judicially estopped from arguing that its defense counsel was "independent counsel" subject to SB 814.
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1) The attorney, Seth Row, wrote a letter to Senator Shields to express concerns about bill HB 4051, which would allow insurers to provide policy documents via website rather than paper copies. 2) Row believes the bill lacks important protections for policyholders by not ensuring they consent to electronic delivery or have a choice in delivery method. 3) The bill's 10-year retention period for policy documents is also insufficient, as insurance claims often arise decades after a policy is issued, placing policyholders at a disadvantage in "lost policy" disputes.
The Ninth Circuit Court of Appeals ruled that a letter from the EPA under section 104(e) of CERCLA, requesting information from a landowner at a Superfund site, constitutes a "suit" and therefore triggers an insurer's duty to defend. This decision, along with previous trial court rulings in Oregon, establishes that insurers must defend policyholders who receive such information request letters. The court's interpretation of Oregon's environmental insurance claims statute, the OECAA, broadened the definition of "suit" and rejected arguments that the statute impaired contracts. This ruling may impact many involved at the Portland Harbor Superfund Site and other contaminated sites in Oregon.
Multi care health system v. lexington ins. co.Seth Row
This document is a memorandum from a United States Court of Appeals summarizing a case between Multicare Health System and Lexington Insurance Company. The court dismissed Multicare's claims against Lexington with prejudice, finding that Lexington did not have a duty to disclose the self-insured retention amount on the certificate of insurance provided to Multicare. The certificate stated the insurance policy limits but not the retention amount. The court determined that Lexington and USI did not make any affirmative misrepresentations, and they did not have a fiduciary or other special relationship that would create a duty to disclose the retention amount to Multicare. Therefore, Multicare failed to state a claim for misrepresentation or other causes of action.
Anderson Bros v. Travelers 9th Cir Decision August 30 2013Seth Row
This document summarizes an appeals court case regarding whether an insurer had a duty to defend its insured. The insured received two letters from the EPA identifying it as potentially responsible for environmental contamination at a Superfund site. The insurer refused to defend, arguing the letters were not "suits." The court affirmed the lower court's ruling that the letters triggered the duty to defend under the policy. Both letters alleged facts that could establish the insured's liability under CERCLA and Oregon law considers such letters a "suit" in the context of comprehensive general liability policies.
This document is a memorandum in support of a motion in limine regarding the effect of Senate Bill 814 on the parties' agreement concerning defense counsel. It argues that SB 814's independent counsel provisions do not apply in this case for two reasons: 1) The insurance policies give Continental the right to control the defense, triggering the savings clause in SB 814, and 2) The parties previously agreed that Bingham would serve as defense counsel within the traditional tripartite relationship, not as independent counsel, so applying SB 814 would contradict this existing agreement. The memorandum also contends that even if SB 814 did apply, it does not allow Schnitzer to select counsel or pay out-of-forum rates that exceed what is
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Charter oak v. interstate mechanical usdc oregon july 2013 mosman papakSeth Row
This document is a court opinion and order regarding various motions for summary judgment in an insurance coverage dispute. The judge adopts the findings and recommendation of the magistrate judge, who recommended granting in part and denying in part several motions for summary judgment. Specifically, the judge agrees that Glacier failed to properly assert a claim for bad faith breach of contract. The judge also finds that Glacier breached its duty to cooperate under the insurance policies by confessing judgment in a related case without notice to the insurers.
Charter oak v. interstate mechanical usdc oregon july 2013 mosman papak
Dovenberg v. Carter Order
1. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 1 of 11 Page ID#: 247
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JON GLEASON and JAMES M.
DOVENBERG,
Plaintiffs, Case No. 3:12-cv-01265-HA
v. OPINION AND ORDER
RICHARD CARTER, SR.; RICHARD
R.C. CARTER; and MARK CARTER; dba
BIGHORN ADVENTURE OUTFITTERS;
Defendants.
HAGGERTY, District Judge:
Plaintiffs filed suit in Clackamas County Circuit Court alleging claims for fraud, breach
of contract, and unlawful trade practices stemming from an illegal elk hunt in Wyoming.
Defendants timely removed to this court pursuant to 28 USC§ 1441(a) on the basis that this
comt has original jurisdiction over this action under 28 USC§ 1332. Defendants now advance
motions to dismiss on the basis that this court lacks personal jurisdiction over Richard Carter Sr.,
that plaintiffs have failed to state a claim upon which relief can be granted, and in the alternative,
requesting that venue be transfened to the District of Wyoming. For the following reasons,
defendants' motions to dismiss [4 and 7] are granted.
OPINION AND ORDER -1
2. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 2 of 11 Page ID#: 248
STANDARDS
To survive a motion to dismiss under Federal Rule of Civil Procedure (FRCP) 12(b)(6), a
complaint must allege sufficient facts to state a claim for relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). When considering a motion to
dismiss, the court must determine whether the plaintiff has made factual allegations that are
"enough to raise a right to relief above the speculative level." Bell At!. Corp. v. Twombly, 550
U.S. 544, 545 (2007). Dismissal under FRCP 12(b)(6) is proper only where there is no
cognizable legal theory, or an absence of sufficient facts alleged to suppmi a cognizable legal
themy. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).
The reviewing comi must treat all facts alleged in the complaint as true and resolve all
doubts in favor of the nonmoving pmiy. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1098 n.1 (9th
Cir. 2009) (citation omitted). The court need not accept any legal conclusions set forth in a
plaintiffs pleading. Ashcroft, 129 S. Ct. at 1949-50.
FACTUAL BACKGROUND
Plaintiffs Jon Gleason and James Dovenberg were, at all relevant times, Oregon citizens.
Defendants Richard Catier, Sr. and his sons Richard "R.C." and Mark Cmier own a ranch in Ten
Sleep, Wyoming. In October of2006, plaintiffs, who are experienced hunters, traveled to Ten
Sleep to engage in an elk hunt guided by defendants. Neither plaintiff had a Wyoming hunting
license. Rather, plaintiffs contracted with defendants, doing business as Bighorn Adventure
Outfitters, to hunt on defendants' propetiy and utilize landowner elk tags defendants had been
issued by the State of Wyoming. Under Wyoming law, it is unlawful to transfer landowner elk
tags to another individual. Plaintiffs allege that they were unaware the transfer of landowner tags
OPINION AND ORDER -2
3. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 3 of 11 Page ID#: 249
was illegal at the time they pmiicipated in the hunt.
Defendants R.C. and Mark Catier guided plaintiffs on a hunt and Gleason killed a bull elk
that was then tagged by defendants with a landowner tag. In February 2007, defendants R.C. and
Mark Catier delivered the mounted elk head unlawfully killed by Gleason to plaintiffs at
Dovenburg's ranch in Oregon. Plaintiffs were not the first Oregon residents to contract with
defendants to pmiicipate in illegal hunting activities.
On December 14, 2011, Gleason pleaded guilty in the District of Wyoming to trafficking
in illegal wildlife in violation of the Lacey Act, 16 U.S. C.§§ 3372(a)(2)(A) and 3373(d)(2), a
Class A misdemeanor. Gleason was fined $1,000.00 and ordered to pay $7,500.00 in restitution
to the Wyoming Game and Fish Depatiment. On December 21, 2011, Dovenberg pleaded guilty
to aiding and abetting in the trafficking in illegal wildlife and was fined $12,000.00. In pleading
guilty, both plaintiffs acknowledged that they should have known the manner in which the hunt
was conducted was unlawful. Both plaintiffs' hunting privileges worldwide were suspended for a
period of two years.
As a result of their involvement in the illegal hunting scheme operated on their ranch,
each defendant pleaded guilty to at least one felony violation of the Lacey Act; conspiracy to
traffic in illegally taken wildlife, 18 U.S. C.§ 371, and 16 U.S. C.§§ 3372(a)(2)(A) and
3373(d)(l)(B).
DISCUSSION
Plaintiffs' Complaint asserts claims for breach of contract, fraud, and unlawful trade
practices. Plaintiffs now withdraw their claims for unlawful trade practices. Plaintiffs seek to
recover economic damages for the money paid to defendants, the losses suffered as a result of
OPINION AND ORDER -3
4. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 4 of 11 Page ID#: 250
their criminal prosecutions, as well as compensation for the loss of their hunting privileges and
the embarrassment and humiliation caused by their convictions. Defendant Richard Carter Sr.
moves to dismiss for lack of personal jurisdiction, for failure to state a claim upon which relief
can be granted, and in the alternative to transfer venue. Separately, R. C. and Mark Carter move
to dismiss for failure to state a claim upon which relief can be granted and in the altemative to
transfer venue.
1. Personal Jurisdiction
Only Richard Carter, Sr. challenges this court's exercise of personal jurisdiction.
Amongst other contacts with Oregon, his sons delivered the mounted elk head to plaintiffs in
Oregon. Plaintiffs bear the burden of establishing that this comi has personal jurisdiction over
Richard Cmier, Senior. See Fireman's Fund Ins. Co. v. Nat'! Bank of Coops., 103 F.3d 888, 893
(9th Cir. 1996) (stating that the nonmoving pmiy has the burden of establishing personal
jurisdiction). However, plaintiffs need only make a prima facie showing of facts that suppmi
exercising jurisdiction over Richard Carter, Senior. Tuazon v. R.J. Reynolds Tobacco Co., 433
F.3d 1163, 1168 (9th Cir. 2006).
Personal jurisdiction over a non-resident defendant is tested under a two-prong analysis.
The exercise of jurisdiction must: ( 1) satisfY the requirements of the long-mm statute of the state
in which the district court sits; and (2) compmi with the principles offederal due process.
Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). Oregon Rule of Civil
Procedure (ORCP) 4(B)-(K) provides specific bases for personaljmisdiction and subsection (L)
extends jurisdiction to the limits of due process under the United States Constitution. Nike, Inc.
v. Spencer, 707 P.2d 589, 591 (Or. Ct. App. 1985); ORCP 4.
OPINION AND ORDER -4
5. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 5 of 11 Page ID#: 251
The Due Process Clause of the U.S. Constitution protects persons from being subject to
the binding judgments of a forum with which they have "established no meaningful 'contacts,
ties, or relations."' Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985) (citing Int'l
Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). Due process requires that a defendant have
"minimum contacts with the forum state such that the exercise of personal jurisdiction does not
offend traditional notions offair play and substantial justice." Decker Coal Co. v.
Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir. 1986) (citing Int'l Shoe Co., 326 U.S. at
316). "A court may exercise either general or specific jurisdiction over a nomesident defendant."
Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990) (citation omitted).
For a defendant to be subject to general personal jurisdiction, the defendant must have
such "continuous and systematic contacts with the forum that the exercise of jurisdiction does not
offend traditional notions of fair play and substantial justice." Reebok Int'l Ltd. v. }vfcLaughlin,
49 F.3d 1387, 1391 (9th Cir. 1995) (citation omitted). The standard for general jurisdiction is
high, requiring that the contacts in the forum "approximate physical presence." Tuazon, 433 F.3d
at 1169 (citation omitted). Unless the defendant can be deemed "present" within the forum for
all purposes, general jurisdiction is not appropriate. Sedvlenken v. Emm, 503 F.3d I 050, 1057
(9th Cir. 2007). At oral argument, plaintiffs argued that this court has general personal
jurisdiction over Richard Cmier, Sr. as a result of the contacts that all three defendants, doing
business as Bighorn Adventure Outfitters, had with Oregon. This is plainly not the case and will
not be addressed further.
In contrast to general personal jurisdiction, specific jurisdiction exists where: (I) the
defendant has performed some act or consummated some transaction within the fmum or
OPINION AND ORDER -5
6. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 6 of 11 Page ID#: 252
otherwise purposefully availed itself 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. Bancroft & }vfasters, Inc. v. Augusta Nat'! Inc., 223 F.3d
1082, 1086 (9th Cir. 2000) (citation omitted). If a plaintiff meets the first and second elements of
establishing specific personal jurisdiction, the burden shifts to the defendant to present a
compelling case that the exercise of jurisdiction would be umeasonable. Schwarzenegger v.
Fred ,V/artin 1vfotor Co., 374 F.3d 797, 802 (9th Cir. 2004) (citation omitted). However, if the
plaintiff fails at the first step, then the jurisdictional inquiry ends and the defendant must be
dismissed from the case. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008).
To establish the first prong (purposeful availment or direction) for specific jurisdiction,
plaintiffs must make a prima facie showing that Richard Carter, Sr. performed some affirmative
conduct within the forum state. Roth v. Garcia kfarquez, 942 F.2d 617, 621 (9th Cir. 1991)
(citation omitted). In some cases, a foreign act aimed at the forum state can satisfy the first
prong. For purposes of analysis, the court assumes without deciding that Richard Carter, Sr.
formed a partnership with his sons in the operation of Bighorn Adventure Outfitters. Through
his defense attomey on the criminal matter charged in the District of Wyoming, Richard Carter,
Sr. admitted that he had allowed Bighom Adventure Outfitters to operate on his ranch and that he
"allowed the use of his landowner tags for out-of-state hunters who did not have tags." Ex. B to
Pls.' Resp. at 20. He subdivided his ranch into 160 acre lots to maximize the number of
landowner tags he and his sons could utilize and he knew hunters "were coming, that they were
going to be from out-of-state, and essentially that the business was being conducted with the
landowner tags." Ex. B to Pls.' Resp. at 20. Additionally, Bighorn Adventure Outfitters solicited
OPINION AND ORDER -6
7. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 7 of 11 Page ID#: 253
Oregon residents for guided hunts and numerous Oregon residents did in fact participate in
illegal hunts guided by defendants. However, there are no facts that directly tie Richard Carter,
Sr. to any conduct in Oregon, or to any particular interactions with plaintiffs. It does not appear
that he guided any Oregon residents or that he was involved in Bigham Adventure Outfitters'
solicitation or adve1iising activities. At most, his landowner tags were used to tag elk shot by
Oregon hunters, though there is no allegation that one of his tags was used on the elk at issue in
this case.
It is clear Richard Cmier, Sr. did not purposefully avail himself of conducting activities in
Oregon as an individual. However, plaintiffs argue that he is subject to personal jurisdiction as a
partner in Bighorn Adventure Outfitters. In First Interstate Bank of Or. v. Tex-Ark Farms, Ltd,
the Oregon Comi of Appeals held that "[a]n agent of a partnership may, by its actions, subject the
general partners to the jurisdiction of the states where the agent acts." 692 P.2d 678, 685 (Or. Ct.
App. 1984). Pursuant to this the01y, Richard Carter, Sr. may be haled into Oregon courts as a
result of his sons' actions taken on behalf of Bighorn Adventure Outfitters. The purported
holding in Tex-Ark is not binding on this court, however, and plaintiffs' reliance on Tex-Ark
conflates partnership liability and personal jurisdiction. The Ninth Circuit's holding in Sher v.
Johnson, is binding precedent that this comi must follow. 911 F.2d 1357, 1365 (9th Cir. 1990).
In Sher, a Califomia 1 resident attempted to sue pminers in a Florida law fi1m in California. The
Ninth Circuit held that Califomia comis had personal jurisdiction over the firm, but not
individual partners. !d. In so holding, the Ninth Circuit drew a distinction between liability and
1
California's long-arm statute, like Oregon's, is coextensive with the due process clause.
Sher, 911 F.2d at 1361.
OPINION AND ORDER -7
8. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 8 of 11 Page ID#: 254
jurisdiction noting that "[l)iability depends on the relationship between the plaintiff and the
defendants and between the individual defendants; jurisdiction depends only upon each
defendant's relationship with the forum." !d.; citing Shaffer v. Heitner, 433 U.S. 186,204 n.19
(1977). To comport with constitutional standards "jurisdiction over each defendant must be
established individually." !d. As this court does not have personal jurisdiction over Richard
Carter, Sr. based on his individual relationship with Oregon, this court may not exercise
jurisdiction over him as a partner in Bighorn Adventure Outfitters. Accordingly, Richard Cmier,
Sr. must be dismissed from this lawsuit. However, as discussed below, even if this court were to
exercise jurisdiction over this defendant, the entire case must be dismissed for failing to state a
claim upon which relief can be granted.
2. Fraud
In their first claims for relief, plaintiffs bring suit under Oregon' common law for
fraud/misrepresentation. To state a claim for fraud under Oregon law, a plaintiff must allege
that: "the defendant made a material misrepresentation that was false; the defendant did so
knowing that the representation was false; the defendant intended the plaintiff to rely on the
misrepresentation; the plaintiff justifiably relied on the misrepresentation; and the plaintiff was
damaged as a result of that reliance." Strawn v. Farmers Ins. Co. of Oregon, 258 P.3d 1199,
2
The pmiies appear to agree that plaintiffs' claims should be analyzed under Oregon law as
the forum law, or that it does not matter which state's law is applied for the purposes of the subject
motions. Because the subject-matter jurisdiction underlying this case is based on diversity
jurisdiction, this court must apply the substantive law of the forum state, in this case Oregon,
including Oregon's choice of law rules. Klaxon Co. V. Stentor Elec. ivifg. Co., 313 U.S. 487, 496
(1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). However, the comi agrees with the
parties in noting that it does not matter which state's law is applied to plaintiffs' claims.
OPINION AND ORDER -8
9. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 9 of 11 Page ID#: 255
1209 (Or. 2011) (citing Handy v. Beck, 581 P.2d 68, 71 (Or. 1978)). 3
The court will assume without deciding that plaintiffs could properly allege that
defendants4 made a material misrepresentation (that transfer of landowner elk tags is legal in
Wyoming), that defendants knew this was false, that defendants intended plaintiffs to rely on the
misrepresentation, and that plaintiffs were damaged as a result of that reliance. Assuming the
above elements were or could be properly plead, plaintiffs' claim still fails as plaintiffs cannot
allege justifiable reliance.
Plaintiffs pleaded guilty in federal comi to knowing violations of the Lacey Act. 16
U.S. C.§§ 3372(a)(2)(A) and 3373(d)(2). Section 3373(d)(2) provides that:
Any person who knowingly engages in conduct prohibited by any provision of this
chapter ... and in the exercise of due care should know that the fish or wildlife or
plants were taken, possessed, transpmied, or sold in violation of, or in a manner
unlawful under, any underlying law, treaty or regulation shall be fined not more
than $10,000, or imprisoned for not more than one year, or both. Each violation
shall be a separate offense and the offense shall be deemed to have been
committed not only in the district where the violation first occmTed, but also in
any district in which the defendant may have taken or been in possession of the
said fish or wildlife or plants.
Both plaintiffs, after being advised of their rights and apprised of the elements the government
would need to prove beyond a reasonable doubt, admitted that they should have known their
actions were unlawful. As a result of their guilty pleas, defendants are judicially estopped from
3
In addition to the elements of fraud outlined above, a plaintiff must "state with
particularity the circumstances constituting fi·aud or mistake." Fed. R. Civ. P. 9(b). Plaintiffs have
failed to meet Rule 9's patiicularity requirement. However, because this defect could be cured by
amendment, and plaintiffs' claims for fi·aud have a separate incurable defect, the court will not
address this issue further.
4
The comi will also not address questions regarding which defendant or defendants made
representations to plaintiffs, as that issue is ultimately irrelevant.
OPINION AND ORDER -9
10. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 10 of 11 Page ID#: 256
now asserting that they justifiably believed that their actions were lawful. Olenicoffv. UBS AG,
No. SACV 08-1029 AG, 2012 WL 1192911, at* 10-11 (C.D. Cal. April 10, 2012). This court
need not entertain the abundant evidence that plaintiffs knew or should have known their conduct
was illegal, including their status as experienced hunters and their prior attempt to secure
Wyoming elk tags, but need only look at their guilty pleas to conclude that plaintiffs are
incapable of pleading justifiable reliance. Even if, as plaintiffs suggest, "other factors also can
affect entty of a plea," those pleas constitute binding admissions this court cannot overlook. Pis.'
Resp. at 11. It would be anathema to the interests of justice to allow plaintiffs "to say one thing
to get leniency in a criminal comi, and the exact opposite here to get money." Olenico.IJ, 2012
WL 1192911, at *11. The admission, in open comi, that plaintiffs should have known their
conduct was unlawful, is irreconcilable with an assetiion that they justifiably relied on
defendants' assertion that it was not. Plaintiffs' fraud claim must be dismissed.
3. Breach of Contract
In their second claims for relief, plaintiffs allege that all defendants are in breach of
contract. Dovenberg paid defendants $12,000.00 to guide plaintiffs on an elk hunt on defendants'
propetiy, and if successful, to utilize defendants' landowner elk tags.
To properly state a claim for breach of contract plaintiffs must allege: (1) the existence of
a contract, (2) the relevant tetms of the contract, (3) plaintiffs' full performance and lack of
breach, and (4) defendants' breach resulting in damage to plaintiffs. Slover v. Or. State Bd of
Clinical Social Workers, 927 P.2d 1098, 1101-02 (Or. Ct. App. 1996).
This court will assume that plaintiffs have plead the existence of a contract, the relevant
tetms, the actual parties to the contract, plaintiffs' perfmmance, and defendants' breach, though it
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11. Case 3:12-cv-01265-HA Document 20 Filed 09/25/12 Page 11 of 11 Page ID#: 257
is not at all clear plaintiffs have succeeded in doing so. Nevertheless, plaintiffs' claim for breach
of contract fails. It is well established that a court cannot enforce, or provide relief from, an
illegal contract. Beers v. Beers, 283 P.2d 666, 668-69 (Or. 1955). It is undeniable that the
alleged contract between plaintiffs and defendants had an illegal purpose, namely the transfer of
Wyoming landowner elk tags to out-of-state hunters and the transportation of illegally taken
game across state lines. Plaintiffs argue that they were not aware the transfer of landowner tags
was illegal at the time they entered the contract and, as such, the contract should be enforceable.
Plaintiffs' assertion is belied by the fact, as discussed above, that they both pleaded guilty to
knowing violations of the Lacey Act. 16 U.S.C. § 3373(d)(2). More importantly, plaintiffs cite
no authority for the proposition that a comi may enforce an illegal contract so long as one of the
patties is unaware of its illegality. Plaintiffs' claims for breach of contract must also be
dismissed.
CONCLUSION
For the foregoing reasons, defendants' motions to dismiss [4 and 7] are granted and this
case is dismissed. Because amendment of plaintiffs' Complaint, in this venue or another, would
be futile, this matter is dismissed with prejudice.
IT IS SO ORDERED.
DATED this ~ay of September, 2012.
Ancer L. Haggetiy
United States District Judge
OPINION AND ORDER -11