Affidavit of Mark Ferguson in Support of the Motion to Dismiss

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION

E360INSIGHT, LLC, an Illinois Limited
Liability Company, and DAVID LINHARDT,
and individual,
Plaintiffs,

v.

MARK JAMES FERGUSON, an individual,
SUSAN WILSON A.K.A. SUSAN GUNN, an
individual, ROB SAECKER A.K.A. FUDO, an
individual, RICH TIETJENS A.K.A.
MORELY DOTES, an individual, WILLIAM
SILVERSTEIN, an individual, and TIM
SKIRVIN, an individual
Defendant’s.

DECLARATION

I Mark James Ferguson declare and state:

1. My name is Mark James Ferguson and I am a Defendant in this action. I make this declaration in support of Defendant’s Motion to Dismiss. The facts set out below are known to me personally and if called on I could testify to those facts under oath.

2. I am not now nor have I ever been a resident of Illinois.

3. I do not now nor have I ever owned, used or possessed any property, real or imagined in Illinois, I do not now nor have I ever paid taxes in Illinois, I do not now nor have I ever held or maintained a bank account with an Illinois state bank or a bank located within Illinois.

4. I am not now nor have I ever registered to vote in Illinois.

5. I am not now nor have I ever been employed in Illinois or to the best of my recollection ever done business with a company, business, individual or other entity located within Illinois.

6. I do not now nor have I ever had a telephone listing, address listing or postal listing in Illinois.

7. I have never made an appearance in any court for any action under any circumstances within the state of Illinois.

8. I do not now nor have I ever attempted to distribute information to any business, company, individual or other entity within the state of Illinois.

9. Each spam sent by Plaintiff’s violated the Can Spam Statute and Washington State Law.

10. Whew.com is properly registered to Defendant and the registration information reflects the place of ownership as 3831 S Fawcett Avenue, Tacoma, WA 98418 and is publicly available to any individual or entity that has access to the Internet.

11. Defendant has been active in the anti-spam community since 1996 and has nine years of experience with reading headers in both Usenet postings and email. This experience makes it easy for the Defendant to identify the sender of email and the posters of Usenet. It is with this extensive experience in both Usenet and Email tracking that the Defendant can make a positive identification of the emails the Plaintiffs did send and the postings [193] Plaintiff Linhardt made while representing e360 to NANAE. Some of these postings are relevant to this action and are included within this declaration for the Court’s information.

12. Defendant posted to NANAE on January 19, 2007 using the same email address Plaintiff was currently abusing with spam making it known to all the spam was not welcome [Exhibit, 4].

13. Plaintiffs on January 19, 2007 posted in response to defendant’s displeasure acknowledging that his spam was in fact unwanted unwelcome and harassing to the Defendant. [Exhibit, 5]

14. Plaintiffs’ spams continued and increased in frequency and volume almost 150% for the next forty-two [42] days. [Exhibit, 6]

15. Plaintiff makes claim in two separate posts to the Usenet made through Google’s Usenet tools that Defendant signed up to receive his newsletters. Plaintiffs falsely stated the Defendant signed up using an affiliate or associated website whose domain is 123freetravel.com on March 4, 2007. [Exhibit, 7]

16. Under the Federal can spam act plaintiff would have 10 days grace period to remove defendant's e-mail address from all lists. Plaintiff continued to send his unwelcome unwanted and harassing spam until February 23, 2007. The spam volume increased and frequency and quantity as stated above from 1.125 each day to 1.64 a day or an increase of almost 150%.

(4) PROHIBITION OF TRANSMISSION OF COMMERCIAL ELECTRONIC MAIL AFTER OBJECTION-
(A) IN GENERAL- If a recipient makes a request using a mechanism provided pursuant to paragraph (3) not to receive some or any commercial electronic mail messages from such sender, then it is unlawful--

(i) for the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request;

17. Washington Law the state I reside in a very specific in that it requires unsolicited commercial e-mail to have accurate and true header information and not be deceitful as rule of law RCW19.19020. Further it requires the onus on the sender to check the residency of the recipient.

§ 19.190.020. Unsolicited or misleading electronic mail -- Prohibition

(1) No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:

(a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or

(b) Contains false or misleading information in the subject line.

18. Each spam from Plaintiff was from a domain that had hidden and obfuscated domain registration information or the address, telephone and other information not belonging to the Plaintiffs. [Exhibit, 8]

19. IP space and IP allocation information was registered to companies not identified as being owned by the Plaintiffs making it almost impossible to identify the actual sender of the spam. [Exhibit, 9]

20. Each spam contained a mailing address registered to the domain that was not reflected in the domain registration. Addresses had two or more domains or entities registered as the removal address and domains had two or more addresses for removal. [Exhibit, 10] Defendant found this confusing and so no option for email removal was available to him.

I declare under penalty or perjury under the laws of the United States of America that all statements made in this declaration are true and accurate and that this declaration was executed on August 25, 2007.

Mark James Ferguson

Response to Motion to Dismiss

This is e360's Response to Ferguson's Motion to Dismiss

Ferguson's Reply to e360's Response

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION

E360INSIGHT, LLC, an Illinois Limited
Liability Company, and DAVID LINHARDT,
and individual,
Plaintiffs,

v.

MARK JAMES FERGUSON, an individual,
SUSAN WILSON A.K.A. SUSAN GUNN, an
individual, ROB SAECKER A.K.A. FUDO, an
individual, RICH TIETJENS A.K.A.
MORELY DOTES, an individual, WILLIAM
SILVERSTEIN, an individual, and TIM
SKIRVIN, an individual
Defendants.

REPLY BRIEF IN RESPONSE TO OPPOSITION TO MOTION TO DISMISS

NOW COMES Defendant, MARK JAMES FERGUSON, pro se defendant, reply to Plaintiff’s response to Defendant’s Motion to Dismiss, and state as follows:

1. Plaintiff has filed their Response Brief to Defendant’s Motion to Dismiss. The arguments put forth by Plaintiffs have not altered the facts of the case to their advantage nor has their response changed the requirements for this Court to exercise Personal Jurisdiction nor has Plaintiffs’ counsel put forth any valid points that would allow this Court to exercise Personal Jurisdiction under 735 ILCS 5/2-101.

Personal Jurisdiction

2. There are over sixty-thousand newsgroups on Usenet and over one-hundred specific to Illinois and twenty or more specific to Chicago (Exhibit “11,” attached). The Defendant did not post to these newsgroups and instead chose to post to only a single
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newsgroup, news.net,admin-abuse.email, hereafter NANAE whose charter is for the discussion of spammers like the Plaintiffs as the name implies. The posts made by the Defendant were on topic and consistent with the charter for that newsgroup and therefore cannot be considered targeted towards the Plaintiff other than Plaintiffs being the current subject of discussion or targeted towards the forum state.

3. When Plaintiff was made aware that the spam received was unwanted and unwelcome Plaintiff, Dave Linhardt offered to remove Defendant’s email address from Plaintiffs’ lists January 19, 2007 (Exhibit “5,” attached to the Declaration of Mark James Ferguson in Support of the Motion) Plaintiffs simply lied in this statement and continued to spam Defendant for an additional forty-two [42] days. Plaintiffs acknowledge receipt of Defendant’s Letter for Damages dated February 9, 2007 (Exhibit “12,” attached) but the spam from Defendant increased in volume and frequency and continued until February 23, 2007 subsequently followed immediately by a Federal Lawsuit for the exact same claims presented in this Court.

4. When Plaintiff saw what was posted Plaintiffs simply chose to compound their error by fabricating evidence and making false claim that Defendant signed up at some third party site (Exhibit “7,” attached to the Declaration of Mark James Ferguson in Support of the Motion). Plaintiffs' counsel had knowledge that this signup was questionable but chose not to question the validity instead choosing to believe Defendant was lying.

5. Plaintiffs make false claim Defendant signed up using his current IP address [131.191.63.103] on November 29, 2006 at exactly midnight or 00:00:00. The time stamp alone should have alerted any reasonable individual that this was a forgery and I would suggest Plaintiff’s counsel to be of reasonable intellect and perhaps competent and this speaks directly to the character of the Plaintiffs and their motives for filing litigation such as this.

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6. Defendant did inform Plaintiffs' counsel the fact that the IP address in question did not belong to the Defendant until January 12, 2007 at approximately 10:00AM (Exhibit “13,” attached). So unless Defendant can predict future events and what IP address will be assigned to him by a company Defendant does not yet know exists, Defendant simply could not have fabricated the signup and that leaves either Plaintiffs or their scapegoat 123freetravel.com as they have continued to claim to be the origin of the fabrication.

7. The nature of the Defendant's online services with Defendant's primary email, hosting and Usenet services being obtained solely from Sonic.net Inc., in California and Defendant’s broadband access to the Internet being delivered by Advanced Stream, a sub-contractor of the Click-Network! of the city of Tacoma precludes 123freetravel.com of knowing the Defendant's IP address and precludes 123freetravel.com as the source of the fabricated information. The Defendant’s current IP address is only visible in HTTP log files or when Defendant views a website. Defendant viewed Plaintiffs’ multiple sites during the course of his investigation into the 93 spam from Plaintiffs.

8. Plaintiff Dave Linhardt found Defendant’s IP address that only after January 12, 2007 was assigned to my home computer named, cindy.ferguson.betta.products in his log files connected the IP address with me and my spouse and then proceeded to fabricate the signup information and then backdated that fabrication to October 29, 2007 to cover himself in case he was sued for spamming.

9. Only Plaintiff Dave Linhardt had motive, opportunity and most importantly was the only one with the means to fabricate the signup he himself created and then posted to NANAE in an attempt to paint Defendant as an individual that signs up for mailing lists and then complains about them.

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10. Plaintiffs cite Bombliss v. Cornelsen and Keller v. Henderson where the parties had entered into a business relationship prior to any litigation and in Keller v. Henderson the original parties signed a contract to litigate any and all disputes in Illinois.

“The contract further provided that it was "deemed to be made in Illinois" and that Courtesy was acting as an agent for defendant to facilitate the sale of the plane. Additionally, the contract provided that any disputes arising out of the contract "shall be" litigated in Illinois.”

11. Next in Goldhaber v. Kohlenberg, Plaintiff's counsel conveniently leaves out the messages in question were not accessible to any others than the Plaintiff’s peers and therefore specifically targeted whereas in NANAE the readers are from all over the world and not specific to Illinois, not all system administrators, not all end users, not all blocklist maintainers and therefore Goldhaber v. Kohlenberg is completely contrary to the case before the Court.

“.... accessible only to other Continental pilots”

12. Plaintiffs’ counsel then makes the claim that Howard v. Missouri Bone and Joint Center, Inc., does not apply simply because Defendant knew Plaintiffs were an Illinois company and the harm occurred in Illinois. What harm has occurred? Plaintiffs have not supported any claims of harm with anything that can be attributable to Defendant’s statements. The harm was done by Plaintiff’s litigious nature and the Plaintiffs’ incessant need for publicity. Defendant posted to a single newsgroup with approximately five-hundred readers whereas Plaintiff interviewed no less than six times for the DMNews, an online news reporting agency with potentially thousands of readers that are in the industry.

Venue

13. Defendant used a computer in his home in Tacoma, Washington to compose and post his messages to a server located in Santa Rosa, California that belongs to Sonic.net Inc.,
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Plaintiff used a computer in his home to access a server that was located in California and belongs to Google Inc., to access the post made by Defendant.

14. Lastly in an attempt to further muddy the proceedings Plaintiffs attempt to use Calder v. Jones in a final attempt to claim Jurisdiction and or Venue. The Defendant knew a large percentage of readers were from Southern California where the Plaintiff resides and the harm was to have taken place. Defendants are in the business of publishing information for shock value. Defendant does not publish for money, Defendant has no knowledge of who reads his posts that reside in Illinois and Defendants is not posting with the intent of shocking people into reading his posts.

WHEREFORE, Defendant request his Motion to Dismiss be granted with prejudice and for any additional relief this Court deems just.

Respectfully Submitted,
Mark James Ferguson