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Old January 6th 09, 12:08 PM posted to rec.games.chess.politics,rec.games.chess.misc
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Default Opposition to Alexander Motion to Dismiss

I. INTRODUCTION
.................................................. .................................................. ....
1
II. BACKGROUND
.................................................. .................................................. ......
2
A. Investigation of Polgar and Troung; creation of the "Litigation
Committee" .... 2
B. Alexander's gained unauthorized access to Hough's email account
................ 3
C. Alexander attempted to "cover his tracks" using the California-based
Anonymizer.com service
.................................................. ...............................
4
D. Alexander and Polgar created a California-based blog, and distributed
the stolen emails on this blog
.................................................. ........................ 5
III. ARGUMENT
.................................................. .................................................. ...........
6
A. Legal standard
.................................................. ...............................................
6
B. The pleadings and evidence demonstrate that Alexander committed
intentional acts, which he expressly aimed at California, and which
caused harm in California
.................................................. ...............................
8
1. Significant evidence demonstrates that Alexander personally
logged into Hough’s Yahoo! account
.................................................. ... 9
2. Alexander does not—and cannot—convert Plaintiffs’ allegations
that Alexander Created the Blog and Posted the Stolen Emails
to the Blog
.................................................. .........................................
10
3. The pleadings and evidence demonstrate that the claims against
Alexander arise from Alexander’s contacts with the forum
.................. 10
Case 3:08-cv-05126-MHP Document 19 Filed 01/05/2009 Page 2 of 17
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Case No. 3:08-CV-05126-MJP
ii PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
4. Jurisdiction over Alexander Satisfies the Effects Test
........................ 11
IV. CONCLUSION
.................................................. .................................................. ......
11
Case 3:08-cv-05126-MHP Document 19 Filed 01/05/2009 Page 3 of 17
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Case No. 3:08-CV-05126-MJP
iii PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
TABLE OF AUTHORITIES
Abatix Corp. v. Capra, No. 07-541, 2008 WL 4427285, at *3
(E.D. Tex. Sept. 24, 2008)
.................................................. ..................................
7, 12
Boschetto v. Hansing, 539 F.3d 1011, 1015, 1016 (9th Cir. 2008)
......................... 6, 8, 10
CE Distribution, LLC v. New Sensor Corp., 380 F.3d 1107, 1111 (9th Cir.
2004) ........... 7
CFA Northern Cal., Inc. v. CRT Partners LLP, 378 F.Supp.2d 1177, 1182
(N.D. Cal. 2005)
.................................................. .................................................. ......
8
Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001)
.................................................. 6
Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002)
.............................. 7, 8
Goldberg v. Cameron, 482 F.Supp.2d 1136, 1144 (N.D. Cal. 2007)
................................ 7
In re Wireless Facilities, Inc. Derivative Litig., 562 F.Supp.2d 1098, 1101
(S.D. Cal. 2008)
.................................................. .................................................. ......
6
Injen Technology Co., Ltd. v. Advanced Engine Management, Inc., 270
F.Supp.2d
1189, 1194 (S.D. Cal. 2003)
.................................................. .....................................
6
Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007)
.................................................. ... 7
Premedics, Inc. v. Zoll Medical Corp., No. 06-0716, 2007 WL 3012968, at *5
(M.D. Tenn. Oct. 9, 2007)
.................................................. ...................................
7, 12
Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163 (9th Cir. 2006)
............................ 7
US Bioservices Corp. v. Lugo, No. 08-2342, 2008 WL 4747473, at *4
(D. Kan. Oct. 23, 2008)
.................................................. .............................................
7
Case 3:08-cv-05126-MHP Document 19 Filed 01/05/2009 Page 4 of 17
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Case No. 3:08-CV-05126-MHP
1 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
Plaintiffs UNITED STATES OF AMERICA CHESS FEDERATION, INC. and
RANDALL HOUGH hereby oppose Defendant Gregory Alexander’s Motion to Dismiss
for Lack of Personal Jurisdiction and Request for Leave to File Motion
(hereinafter,
“Motion”).
I. INTRODUCTION
In the First Amended Complaint (“FAC”), Plaintiffs allege that
Defendants Polgar
and Alexander gained unauthorized access to confidential and
attorney-client privileged
emails of the United States of America Chess Federation, Inc. (“USCF”)
and Randall
Hough (“Hough”) over 100 times, unlawfully copied these emails, and
unlawfully
distributed these emails to third parties. Much of Alexander’s unlawful
conduct directly
touched the State of California and affected its residents.
This Court has personal jurisdiction over Alexander based on at least four
concrete bases. First, on numerous occasions, Alexander gained unlawful
access to
the Yahoo! server for Hough’s email account. This server—along with
Yahoo! itself—is
located in California. Second, in gaining unauthorized access to the
Yahoo! server,
Alexander paid for and used an Internet “anonymizing” service to cover
his digital
tracks. This “anonymizing” service, Anonymizer, Inc., is located in
California. Third,
Alexander created a “blog” website on a server located in California,
using a service
owned by Google, Inc., also based in California. Thereafter, Alexander
posted several
emails stolen from Hough’s account to this California-based blog, for
the purpose of
distributing these emails to third parties. Fourth, the harm caused by
Alexander’s
intentional and unlawful misconduct was particularly felt in California,
because Hough is
a California resident.
Alexander’s misconduct was expressly aimed at California, and he knew or
should have known that his misconduct would cause harm in California. Simply
because Alexander committed his misconduct online, does not mean that
his actions
did not reach California and affects its residents. For these reasons,
personal
jurisdiction over Alexander for this action would be consistent with
constitutional
Case 3:08-cv-05126-MHP Document 19 Filed 01/05/2009 Page 5 of 17
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Case No. 3:08-CV-05126-MHP
2 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
standards, and thus Alexander’s Motion should be denied.
II. BACKGROUND
The USCF is the official, not-for-profit U.S. membership organization
for chess
players and chess supporters, and the USCF represents the United States
in the World
Chess Federation (FIDE). The USCF was founded in 1939 and has grown to over
80,000 members and 2,000+ affiliated chess clubs and organizations. (FAC
¶15.)
The USCF is governed by a Board of Delegates, composed of a seven-member
Executive Board, Delegates at Large, and 125 Delegates apportioned among
U.S.
states. The seven-member Executive Board functions as a “board of
directors,” tasked
with managing the affairs of the USCF. (FAC ¶16.) Defendant Polgar, and her
husband Paul Truong, are members of the USCF Executive Board. (FAC ¶¶6, 17.)
Defendants Polgar and Alexander are business partners in multiple
ventures in
the chess world, and have publicly disclosed their business connection.
Alexander has
publicly admitted that he serves as an employee or agent of Polgar,
stating that Polgar
“hired” him. (FAC ¶8.)
A. Investigation of Polgar and Truong; creation of the “Litigation
Committee.”
In September, 2007, allegations of misconduct were made against Polgar’s
husband, Paul Truong (“Truong”). Truong was alleged to have impersonated
another
USCF Executive Board member and other USCF members in over 2,500 Internet
message board postings. As a result, the USCF launched an investigation
into the
allegations against Polgar and Truong. (FAC ¶17.)
As part of USCF’s investigation, and to defend against a separate
lawsuit filed by
a third party concerning these allegations, USCF hired the law firm of
Kronenberger
Burgoyne, LLP (“Kronenberger”) to review and investigate the allegations
against
Polgar and Truong. To carry out this investigation, the Executive Board
designated a
“Litigation Committee,” which excluded Polgar and Truong, to permit
confidential
communications about the investigation and about USCF’s legal options.
(FAC ¶19.)
From November 2007 through June 2008, Kronenberger performed a significant
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Case No. 3:08-CV-05126-MHP
3 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
review of the facts and law regarding the controversy, and during this
period,
Kronenberger sent a significant number of emails to the Litigation
Committee (which
included Hough), providing the initial results of Kronenberger's
investigation, confidential
summaries of the USCF's legal position vis-à-vis Polgar and Truong, and
outlines of the
legal options available to USCF regarding Polgar and Truong. (FAC ¶20.)
B. Alexander gained unauthorized access to Hough’s email account.
Between November 26, 2007 and June 24, 2008, with full knowledge that Polgar
and her husband were under investigation by the USCF, Polgar and Alexander
unlawfully accessed Hough’s email at least 111 times. (FAC ¶23.)
Records of Hough’s email account, provided by the records custodian at
Yahoo!,
reflect well over 100 instances of unauthorized access to Hough’s account. A
significant number of these instances of unauthorized access were made
by Alexander
using his home Comcast Internet access account. Exhibit A to the
Declaration of Karl
Kronenberger in Support of Opposition to Motion to Dismiss for Lack of
Personal
Jurisdiction (hereinafter, “Kronenberger Decl.”) lists twenty-six
instances of
unauthorized access to Hough’s email account from Alexander’s Internet
Protocol (“IP”)
addresses associated with Comcast Cable Communications, Inc.1 Yahoo! is
located in
the District.2
Before this case was removed to this Court, USCF served a discovery order on
Comcast, which sought the account holder associated with the IP
addresses used to
gain unauthorized access to Hough’s account (the “Discovery Order”).
(Kronenberger
Decl. ¶4 & Ex. C.) Upon receiving the Discovery Order, Comcast sent a
letter to
1 Exhibit B to the Kronenberger Declaration confirms that Comcast Cable
Communications owns the referenced IP addresses, and also demonstrates
that the
approximate geographic location of the user of such IP addresses is
Everett (Seattle
area), Washington.
2 In logging into Yahoo!’s email service, Alexander agreed to Yahoo!’s
terms of service,
which state, “You . . . agree to submit to the personal jurisdiction of
the courts located
within the county of Santa Clara, California or the Northern District of
California, and
agree to waive any and all objections to the exercise of jurisdiction
over the parties by
such courts and to venue in such courts.” (Kronenberger Decl. ¶9 & Ex. H.)
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Case No. 3:08-CV-05126-MHP
4 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
Alexander, stating that the USCF had sought information about the owner
of an IP
address assigned to Alexander. (Kronenberger Decl. ¶5 & Ex. D.)
Alexander then filed
this private letter from Comcast with the Court. (See, Letter dated
12/1/08 from Gregory
Alexander regarding subpoenas, Attachment 1 [Dckt 14, filed on 12/5/2008]).
Later, during a hearing before the San Francisco Superior Court on
November 5,
2008, Alexander admitted that the IP address that was the target of the
Plaintiffs’
Discovery Order and subpoena to Comcast was in fact Alexander’s IP address.
(Declaration of Jeffrey M. Rosenfeld in Support of Plaintiffs’
Opposition to Motion to
Dismiss for Lack of Personal Jurisdiction, ¶6.)
Notably, the IP address contained in the Superior Court Order—i.e.
76.121.230.165—which, according to Yahoo! records, is the IP address
associated with
thirteen instances of unauthorized access (see Kronenberger Decl. ¶2 &
Ex. A), is the
same IP address that Alexander used to sign up for the California-based
Anonymizer.com service (see below).
Alexander also used the same three Comcast IP addresses (71.197.185.76,
76.104.213.144 and 76.121.230.165) to log into Hough’s email account,
and to post
messages, as himself, to the USCF website at www.USChess.org.
(Declaration of
Michael Nolan in Support of Plaintiffs’ Opposition to Alexander’s Motion
to Dismiss for
Lack of Personal Jurisdiction (“Nolan Decl.”) ¶3.)
C. Alexander attempted to “cover his tracks” using the California-based
Anonymizer.com service.
In addition to Alexander’s instances of unauthorized access into a
California
server using his Comcast IP addresses, Alexander gained unauthorized
access to
Hough’s account numerous times using a service that obscured his
identity. Exhibit E
of the Kronenberger Declaration contains a partial list of instances of
unauthorized
access to Hough’s account by IP addresses owned or exclusively used by
Anonymizer,
Inc. (“Anonymizer”). Anonymizer seeks to provide “anonymous Web browsing
which
hides your IP address.” (Kronenberger Decl. ¶7 & Ex. F.)
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Case No. 3:08-CV-05126-MHP
5 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
On September 28, 2007, shortly before he began gaining unauthorized
access to
Hough’s email account, Alexander went to the website of California-based
Anonymizer
and signed up for an account. (FAC ¶13.)3 In response to a subpoena
served by the
USCF, Anonymizer.com confirmed that Gregory Alexander created an account at
Anonymizer.com on September 28, 2007 and used the IP address
76.121.230.165 to
set up this account. (Kronenberger Decl. ¶8 & Ex. G.) Notably, this
Comcast IP
address is one of the same IP addresses Alexander used to gain
unauthorized access
to Hough’s account (this demonstrates that in some instances Alexander
logged into
Hough’s account directly, and in other instances Alexander logged into
Hough’s account
using the Anonymizer service). Anonymizer’s records indicate that
Alexander used the
Anonymizer service extensively during the relevant time period.
(Kronenberger Decl. ¶6
& Ex. E.)
D. Alexander and Polgar created a California-based blog and distributed the
stolen emails on this blog.
After Alexander and Polgar stole copies of Hough’s emails, they created
a blog
with the Google-owned service Blogspot.com, naming the blog: USCFSaid.
Blogspot.com (the “Blog”). In creating this Blog, Alexander agreed to
Blogspot’s
terms of use, which state “[a]ny claims, legal proceeding or litigation
arising in
connection with the Service will be brought solely in Santa Clara
County, California, and
you consent to the jurisdiction of such courts.” (Kronenberger Decl. ¶10
& Ex. I).
Moreover, Google itself is located in the District.
After creating the Blog, Alexander and Polgar published some of the stolen
emails on the Blog. Additionally, Alexander and Polgar informed third
parties that the
Blog was their source for obtaining copies of the stolen emails. (FAC
¶¶13, 23e.)
Significantly, nowhere in his motion or declaration, does Alexander
attempt to controvert
3 In signing up with Anonymizer, Alexander agreed to Anonymizer’s terms
of use, which
state, “you hereby irrevocably consent to the exclusive jurisdiction and
venue of state or
federal courts in San Diego County, California, USA in all disputes
arising out of or
relating to the use of the Anonymizer Web Sites.” (Kronenberger Decl.
Ex. J.)
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Case No. 3:08-CV-05126-MHP
6 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
the fact that he created the Blog or published the stolen emails on the
Blog. (Id.)
III. ARGUMENT
A. Legal standard.
Determining whether a court may exercise personal jurisdiction over a
defendant
ordinarily requires a two-step inquiry: (1) whether the forum state's
long-arm statute
reaches the defendant; and (2) whether the exercise of jurisdiction
comports with the
federal constitutional principle of due process. Injen Technology Co.,
Ltd. v. Advanced
Engine Management, Inc., 270 F.Supp.2d 1189, 1194 (S.D. Cal. 2003).
California's
long-arm statute is co-extensive with federal standards, so a federal
court may exercise
personal jurisdiction if doing so comports with federal constitutional
due process.
Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008).
There are two forms of personal jurisdiction that a forum state may
exercise over
a nonresident defendant: general jurisdiction and specific jurisdiction.
Boschetto, 539
F.3d at 1016. General personal jurisdiction exists where a nonresident
defendant's
activities within the state are substantial or continuous and
systematic. In re Wireless
Facilities, Inc. Derivative Litig., 562 F.Supp.2d 1098, 1101 (S.D. Cal.
2008). By
comparison, specific jurisdiction exists if: (1) the defendant has
performed some act or
consummated some transaction within the forum state or otherwise
purposefully availed
himself of the privilege of conducting activities in forum state; (2)
the claim at issue
arises out of or results from the defendant's forum-related activities;
and (3) the exercise
of jurisdiction is reasonable. Id. at 1103.
In order to establish that a non-resident defendant purposefully availed
him- or
herself of the privilege of conducting business in the forum as required
to establish
personal jurisdiction, a court must find that the defendant performed
some type of
affirmative conduct that allowed or promoted a transaction or business
within the forum.
Doe v. Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001). This is not a
rigid or formalistic
test, but rather a practical and pragmatic inquiry. Boschetto, 539 F.3d
at 1016 (9th Cir.
2008). Thus, in conducting a specific personal jurisdiction inquiry,
courts consider the
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Case No. 3:08-CV-05126-MHP
7 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
extent of the defendant's contacts with the forum and the degree to
which the plaintiff's
suit is related to those contacts, in that a strong showing on one axis
will permit a lesser
showing on the other, such that a single forum state contact can support
jurisdiction if
the cause of action arises out of that particular purposeful contact of
the defendant with
the forum state. Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007). The
site where
the injury occurred and where the evidence is located will usually be
the most efficient
forum. Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1176 (9th
Cir. 2006).
When an intentional tort claim is asserted, the “purposeful availment”
is met by
the commission of intentional act in foreign state, expressly aimed at
the forum state,
which causes harm in the forum state that the defendant knew was likely
to be suffered
in that state. CE Distribution, LLC v. New Sensor Corp., 380 F.3d 1107,
1111 (9th Cir.
2004). Thus, with intentional torts, the purposeful availment test is
transformed into the
“purposeful direction analysis.” Goldberg v. Cameron, 482 F.Supp.2d
1136, 1144 (N.D.
Cal. 2007). Also referred to as the Effects Test, this analysis asks
whether the
defendant committed: 1) an intentional act, 2) expressly aimed at the
forum state, which
3) caused harm that the defendant knew would likely be suffered in the
forum state.
See Menken, 503 F.3d at 1058; CE Distribution, 380 F.3d at 1111; Dole
Food Co., Inc.
v. Watts, 303 F.3d 1104 (9th Cir. 2002).
In the context of wiretapping, computer hacking, and electronic data
interception,
an Effects Test may be used to evaluate personal jurisdiction. Thus,
where a defendant
discloses trade secrets by email to the forum state, the effect of the
defendant’s
misconduct is felt in the forum. See US Bioservices Corp. v. Lugo, No.
08-2342, 2008
WL 4747473, at *4 (D. Kan. Oct. 23, 2008). Similarly, where a defendant
engages in
unauthorized access of a computer server in the forum state, that too is
sufficient to
satisfy the Effects Test. See Abatix Corp. v. Capra, No. 07-541, 2008 WL
4427285, at
*3 (E.D. Tex. Sept. 24, 2008) (finding that the minimum contacts
required by due
process do not require physical presence); Premedics, Inc. v. Zoll
Medical Corp., No.
06-0716, 2007 WL 3012968, at *5 (M.D. Tenn. Oct. 9, 2007) (finding that
Effects Test
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Case No. 3:08-CV-05126-MHP
8 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
satisfied when it “was not by some haphazard coincidence that [the
defendant]
navigated to [the plaintiffs’] website, logged into the AED manager
using a falsified test
account, and obtained informational emails indicating how AED Manager
operates as a
result”).
If a district court decides a motion to dismiss for lack of personal
jurisdiction
without an evidentiary hearing, then the plaintiff need only make a
prima facie showing
of the jurisdictional facts. Boschetto, 539 F.3d at 1015; Dole Food Co,
303 F.3d at
1108. Absent an evidentiary hearing the court only inquires whether the
plaintiff's
pleadings and affidavits make a prima facie showing of personal
jurisdiction. Id.
Uncontroverted allegations in the plaintiff's complaint must be taken as
true and
conflicts between the parties over statements contained in affidavits
must be resolved in
the plaintiff's favor. Id. “That is, the plaintiff need only demonstrate
facts that if true
would support jurisdiction over the defendant.” CFA Northern Cal., Inc.
v. CRT Partners
LLP, 378 F.Supp.2d 1177, 1182 (N.D. Cal. 2005).
B. The pleadings and evidence demonstrate that Alexander committed
intentional acts, which he expressly aimed at California, and which caused
harm in California.
Alexander’s misconduct satisfies the Effects Test for personal jurisdiction.
Alexander gained unauthorized access to a Yahoo! email server in
California numerous
times. There is no question that Alexander’s unauthorized access was
intentional, as
Alexander was required to enter Hough’s email address and password into the
California-based email server on every occasion he accessed Hough’s account.
Alexander also used a California-based “anonymizing” service to evade
detection when
he logged into Hough’s Yahoo! account. Moreover, Alexander opened an
account, and
created a Blog, on a California-based Google blog website. Thereafter,
Alexander
published the stolen emails on this Blog. Finally, Hough is a California
resident, and his
harm was suffered in California.
//
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Case No. 3:08-CV-05126-MHP
9 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
1. Significant evidence demonstrates that Alexander personally logged
into Hough’s Yahoo! account.
Despite Alexander’s declaration, Plaintiffs have submitted considerable
evidence
demonstrating Alexander’s unlawful actions, which were aimed at
California. In light of
this evidence, Alexander’s declaration is not credible. Alexander stated
in his
declaration that he “never improperly access[ed] or gained access to any
servers or
email accounts belonging to any person, other than myself.” (Declaration
of Gregory
Alexander in Support of Motion to Dismiss ¶8.) However, Plaintiffs have
submitted
documents, and their accompanying custodian affidavits, which
demonstrate how
certain IP addresses owned by Comcast—and assigned to Alexander—were
used for
numerous instances of unauthorized access to Hough’s email account.
Alexander has
actually admitted that one of these IP addresses, 76.121.230.165, is
indeed his IP
address. As further confirmation that the Comcast IP addresses used to
access
Hough’s email account are indeed Alexander’s IP addresses, Plaintiffs
have submitted
evidence that Alexander used these same IP addresses (71.197.185.76,
76.104.213.144 and 76.121.230.165) to log into the USCF’s website as
himself at
www.USChess.org/forums.
Plaintiffs have also presented documents, and their accompanying custodian
affidavits, which demonstrate how IP addresses owned by Anonymizer were
also used
in numerous instances of unauthorized access to Hough’s email account.
Additionally,
Plaintiffs have presented documents that show that Alexander, to cover
his tracks,
signed up with California-based Anonymizer, using 76.121.230.165,
Alexander’s IP
address.
For the forgoing reasons, Plaintiffs have submitted sufficient evidence that
Alexander personally gained unauthorized access to Hough’s Yahoo! email
account as
alleged in the FAC.
//
//
//
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Case No. 3:08-CV-05126-MHP
10 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
2. Alexander does not—and cannot—convert Plaintiffs’ allegations that
Alexander Created the Blog and Posted the Stolen Emails to the Blog.
In Alexander’s carefully worded declaration, he never controverts the
allegations
that Alexander created the California-based Blog and published the
stolen emails to this
Blog. In accordance with Boschetto, these allegations, which are
detailed in the FAC,
must be deemed as true for the purpose of Alexander’s Motion.
3. The pleadings and evidence demonstrate that the claims against
Alexander arise from Alexander’s contacts with the forum.
The allegations against Alexander under the Electronic Communications
Privacy
Act, the Computer Fraud and Abuse Act, California Statutory Computer
Fraud statute
and the tort of conversion, all share a common factual allegation—that
Alexander
gained unauthorized access to Hough’s email account and stole Hough’s email
correspondence. The evidence demonstrates that these claims arise from
Alexander’s
purposeful contacts with California.
• Alexander gained unauthorized access to the email account and personal
communications of a longtime California resident. (Hough Decl. ¶2.)
• Alexander’s unauthorized access to Hough’s email account was
accomplished by accessing an email server of Yahoo!—a California-based
email service company with a California choice of law/choice of forum
provision in its terms of use. (Kronenberger Decl. ¶9 & Ex. H.)
• In part, Alexander gained unauthorized access to Hough’s email account
using a California-based anonymizing service. In so doing, Alexander agreed
to Anonymizer’s terms of use, which contain a California choice of
law/choice
of forum provision. (Kronenberger Decl. ¶11 & Ex. J.)
• Alexander posted some of the stolen emails on a California-based blog,
using
a California-based blog service, which also has a California choice of
law/choice of forum provision. (Kronenberger Decl. ¶10 & Ex. I.)
Plaintiffs’ lawsuit is a direct result of Alexander’s contacts with the
forum and
satisfies the Boschetto standard.
Case 3:08-cv-05126-MHP Document 19 Filed 01/05/2009 Page 14 of 17
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Case No. 3:08-CV-05126-MHP
11 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
4. Jurisdiction over Alexander Satisfies the Effects Test.
Alexander’s misconduct satisfies the Effects Test for personal
jurisdiction. As
discussed above, the Effects Test requires 1) an intentional act, 2)
expressly aimed at
the forum state, which 3) caused harm that the defendant knew would
likely be suffered
in the forum state.
First, as discussed above, Alexander committed several intentional, unlawful
acts. Alexander and Defendant Polgar unlawfully accessed Hough’s email
accounts.
Alexander and Polgar intentionally reviewed and copied Hough’s and the
USCF’s
privileged and confidential emails. Alexander and Polgar intentionally
published these
emails for general viewing on a blog that they created.
Second, Alexander aimed these intentional acts at California. Hough is a
California resident who reads, writes, and stores his emails in
California. Hough’s email
account, which Alexander unlawfully accessed, is located on a Yahoo!
email server
based in California. Alexander posted the stolen emails on a blog using
a Google
service based in California. And Alexander sought to hide his misconduct
by using an
anonymizing service, which is also located in California.
Finally, Alexander had to have known that his misconduct would cause harm
likely to be suffered in California. Alexander knew that Hough resides
in California, and
that he would be harmed by the unauthorized access to his email account
and the theft
of his confidential and privileged communications. Alexander knew that
by unlawfully
accessing Hough’s email account over 100 times, he was accessing a
Yahoo! server in
California. Each time Alexander unlawfully accessed Hough’s account, he was
presented with the Yahoo! login page, including Yahoo!’s terms of
service, which stated
that Alexander consented to personal jurisdiction in California for any
dispute relating to
the Yahoo! service. Alexander also knew that in his attempts to hide his
misconduct, he
was using a California-based anonymizing service. In using Anonymizer’s
services,
Alexander agreed to California jurisdiction for all disputes relating to
his use of this
service. Finally, Alexander knew that in creating the Blog, and
publishing the stolen
Case 3:08-cv-05126-MHP Document 19 Filed 01/05/2009 Page 15 of 17
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Case No. 3:08-CV-05126-MHP
12 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
emails on it, he was using a California-based blog service, and had
agreed to California
jurisdiction for any dispute in connection with this service. Based on
all of these facts,
Alexander cannot deny that he expressly aimed his misconduct at
California and knew
that he might be haled into court here.
This interpretation of the Effects Test is consistent with other cases
addressing
wire tapping, hacking, and unauthorized access to electronic
communications. For
example, in Abatix, the only alleged contacts between the plaintiff and
out-of-state
defendants related to allegations that the out-of-state defendants
gained unauthorized
access to computer servers located in Texas. Abatix, 2008 WL 4427285 at
*3. In
applying the Effects Test, the Abatix court held that despite the lack
of any physical
presence by the defendants in the forum state, their intentional acts of
gaining
unauthorized access to a computer server in the forum state subjected
them to
jurisdiction in the forum state. Id.; see Premedics, Inc., 2007 WL
3012968 at *5 (finding
that the logging into a website with a falsified account to obtain
informational emails
constituted intentionally tortious activity aimed towards plaintiff
sufficient to satisfy the
Effects Test).
Alexander cannot shield himself from a lawsuit in California by
perpetrating his
online misconduct remotely. The effect of his misconduct is still felt
in California. Given
Alexander’s systematic contacts with California in perpetrating his
misconduct, there
can be no question that his actions satisfy the Effects Test, and that
personal
jurisdiction is appropriate and reasonable. Alexander broke into the
private account of
one Plaintiff and stole and published the private communications of both
Plaintiffs.
Simply because Alexander committed this misconduct online does not mean
that it was
not aimed at California.
IV. CONCLUSION
For the foregoing reasons, the Court should deny Alexander’s motion to
dismiss
for lack of personal jurisdiction.
//
Case 3:08-cv-05126-MHP Document 19 Filed 01/05/2009 Page 16 of 17
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Case No. 3:08-CV-05126-MHP
13 PLAINTIFFS’ OPPOSITION TO
ALEXANDER’S MOTION TO DISMISS
Respectfully Submitted,
DATED: January 5, 2009 KRONENBERGER BURGOYNE, LLP
By: /s/ Karl S. Kronenberger
Karl S. Kronenberger
Attorneys for Plaintiffs,
UNITED S
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