Complaint

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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

MARK JAMES FERGUSON, an individual,
SUSAN WILSON A.K.A. SUSAN GUNN, an
individual, and KELLY CHIEN, an individual,
Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF AND FOR DAMAGES Plaintiffs, e360lnsight, LLC (e360) and David Linhardt (Linhardt) (collectively "Plaintiffs"), by and through their attorneys, Synergy Law Group, LLC, for their Complaint against Defendants, Mark James Ferguson, Susan Wilson a.k.a. Susan Gunn, and Kelly Chien, (collectively "Defendants"), state as follows:

NATURE OF THIS ACTION
1. This is an action by e360, an internet marketing company, and Linhardt, its President, for damages against Defendants, each of whom have repeatedly made defamatory statements by referring to Plaintiffs as "spammers" and causing Plaintiffs to be listed as "spammers" in publicly accessible internet websites. Defendants' activity has resulted in Plaintiffs' e-mail being blocked from the intended recipients causing Plaintiffs to incur substantial lost profits. The statements made by the Defendants constitute
-2-
defamation and the resulting blocking of Plaintiffs' e-mails constitutes tortious interference with prospective economic advantage. Further, certain Defendants have actively and without justification interfered with existing contracts between Plaintiffs and third parties.

PARTIES

2. e360 is an Illinois Limited Liability Company located in Wheeling, Illinois, with its principal offices located at 600 Northgate Parkway, Suite A.

3. David Linhardt is an individual who resides in Highland Park, IL 60035 and is a citizen of Illinois.

4. Mark James Ferguson ("Ferguson") is an individual who resides at [redacted] and is a citizen of Washington.

5. Susan Wilson, a.k.a. Susan Gunn ("Wilson") is an individual who resides at [redacted] and is a citizen of California.

6. Kelly Chien ("Chien") is an individual who resides at [redacted] and is a citizen of New York.

7. Collectively, Ferguson, Wilson and Chien will be referred to in this Complaint as "Defendants".

JURISDICTION AND VENUE

8. This Court has jurisdiction over this action pursuant to 28 USCS § 1332. Plaintiffs are both citizens of Illinois and Defendants are citizens of States other than Illinois. e360 is an Illinois limited liability corporation whose sole member, Maverick
-3-
Direct Marketing Solutions, Inc. is an Illinois corporation with its principal place of business in Illinois. Dave Linhardt is the sole shareholder of Maverick. Plaintiffs seek in excess of $75,000 in damages from each Defendant. Thus diversity of the parties is satisfied.

9. Jurisdiction is proper pursuant to 28 USCS § 1391(a) because a substantial part of the events giving rise to the claim occurred in this judicial district.

FACTS COMMON TO ALL COUNTS

10. e360 is an e-mail based marketing company whose business practices have, at all times relevant to the allegations in this complaint, complied with, and continue to comply with all federal and state requirements and standards pertaining to the sending of commercial e-mail, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. § 7701 (CAN-SPAM).

11. e360 uses ISPs to facilitate its marketing efforts on behalf of its business partners, and at all times relevant to the claims asserted in this complaint, e360 has complied, and continues to comply, with all Accepted Use Policies and Terms Of Service agreements stated by the ISPs.

12. e360 is hired by and partners with companies that wish to market their products or services using the internet. This marketing campaign is targeted to persons "opting in" to a list whereby they agree to accept e-mail announcements. These persons sign up at websites owned by e360 or its business partners, some of which are then verified through a "double opt-in" process.

-4-
13. e360 does not engage in "spamming", which is essentially the digital equivalent of sending junk mail that is neither asked for nor wanted. Unlike anyone engaged in spamming, the internet marketing in which e360 engages employs a variety of permission processes that e360 controls, and that its marketing partners use, to obtain permission and consent from, and provide notice to, the consumers that receive the e-mail messages.

14. e360 has valid contracts with various third-parties to send e-mail on behalf of the third-parties.

15. Defendants are aware that e360 is in the business of sending e-mail and that Plaintiffs contract with third-parties to send e-mail on their behalf.

16. Defendants' repeated postings on internet websites that Plaintiffs are spammers has caused Plaintiffs to be blacklisted and have their e-mails blocked as spam.

17. Defendants intentionally post that Plaintiffs are spammers with the intent that Plaintiffs' e-mails will be blocked as spam, causing Plaintiffs' clients to cease business with Plaintiffs.

18. Defendants intentionally post information about e360's Internet infrastructure including, but not limited to, ip addresses, dns servers, whois domain information, bandwidth providers, hosting providers and e360's customers. On information and belief, these postings are made for the sole purpose of encouraging other email systems administrators to block inbound messages from e360.

19. Plaintiffs have lost clients and business opportunities as a result of Defendants' postings that Plaintiffs are spammers which resulted in Plaintiffs being blacklisted and prevented Plaintiffs from sending e-mails.

-5-
20. Plaintiffs have suffered damages as a result of Defendants' tortious interference with their prospective business opportunities.

COUNT I
Defamation
(Against Ferguson and Wilson)

21. Plaintiffs incorporate paragraphs 1 through 20 above as set forth fully in Count I.

22. Ferguson repeatedly referred to Plaintiffs as spammers through various online postings that can be accessed in the state of Illinois via the internet.

23. Specifically, on January 19, 2007 Ferguson posted on a usenet message board referred to as NANAE, which stands for news.admin.net-abuse.email, a statement that e360, and through it, Linhardt, is a spammer. (See January 19, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 1.)

24. On January 20, 2007 Ferguson posted on NANAE a message whose subject line read "e360lnsight are spammers and I can now sue them" and which indicated again that e360, and through it, Linhardt, was sending spam. (See January 20, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 2.)

25. On February 7, 2007 Ferguson again posted on NANAE a message which indicated that e360, and through it, Linhardt, was sending spam. (See February 7, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 3.)

26. On February 8, 2007 Ferguson posted on NANAE two separate messages which indicated again that e360, and through it, Linhardt, was sending spam. (See February 8, 2007 postings attached to and incorporated into this Complaint by reference as Exhibits 4 and 5.)

-6-
27. On June 30, 2007 Ferguson posted on NANAE that e360, and through it Linhardt, violated CAN-SPAM and Washington state law by sending Spam. (See June 30, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 6.)

28. On January 24, 2007 Wilson posted on NANAE a message which indicated that e360, and through it, Linhardt, was sending spam. This message also contained the statement that e360, and through it, Linhardt, would "list wash" a recipient's address, a practice that clearly implied that e360 was engaged in illegal activity. Wilson's message also contained a statement that indicated that e360, and through it, Linhardt, was the subject of a "major police cyber crime investigation." (See January 24, 2007 posting attached to and incorporated into this Complaint by reference as Exhibit 6.)

29. Wilson has admitted to being a Spamhaus volunteer, referring to her work for an international email blacklisting organization that operates at www.spamhaus.org. On information and belief, Wilson has generated SBL and ROSKSO listings on spamhaus.org for the expressed purpose of blocking e360's email. In addition, Wilson knowingly created these listings so that they could be downloaded and used by other blacklist organizations including surbl.org, spamcop.net, sorbs.net, spew.org, returnpath.net. Wilson knowingly created these listings so that they could be downloaded and used by ISPs in Illinois, including Yahoo.com, Google.com, American Online, Comcast.net, AT&T, and RoadRunner/TimeWarner cable.

-7-
30. All of the statements giving rise to this defamation claim against Defendants were in fact false. Defendants knew that their statements were false, or had no reason to believe that their statements were true.

31. All of the statements giving rise to this defamation claim against Defendants were published to third parties. None of the publications were privileged.

32. Plaintiffs believe that there are other defamatory publications by Defendants that remain to be discovered. Plaintiffs will seek leave to include any subsequently discovered publications of libel or slander as additional grounds for alleging the claims asserted in this count for Defamation.

33. Defendant's references to Plaintiffs as spammers constitute defamation because they impute that e360, and through it, Linhardt, committed criminal acts, or are unable to perform their services ably or with integrity, thus prejudicing Plaintiffs reputation and in their employment.

34. Defendants' acted intentionally, willfully or with such gross negligence as to indicate Defendants' reckless disregard for Plaintiffs' rights. Plaintiffs are therefore entitled to punitive damages from Defendants.

35. Plaintiffs respectfully request that this Court enter a judgment in their favor and against each Defendant, and award Plaintiffs an amount of damages in excess of $75,000 to compensate Plaintiffs for Defendant's defamatory statements concerning Plaintiffs, award punitive damages, award costs of suit, and for any other relief that this Court deems just.

-8-
COUNT II
Tortious Interference With A Prospective Business Advantage
(Against All Defendants)

36. Plaintiffs incorporate paragraphs 1 through 35 above as set forth fully in Count II.

37. Defendants have forwarded numerous e-mails received from Plaintiffs or Plaintiffs affiliates to e-mail blocking entities and to ISPs with the intent to have Plaintiffs' e-mail blocked as spam. Moreover, in addition to the NANAE postings referred to above, Defendant Chien on June 2, 2005 referred to Plaintiffs as spammers. Defendants know that email blocking sites monitor NANAE and see that Plaintiffs are being accused of illegal spamming and other untoward behavior. On information and belief, one or more defendants intentionally forwarded postings to email blocking sites.

38. Defendants are aware that Plaintiffs are in the business of marketing through the use of e-mail and that Plaintiffs contract with third parties to send e-mail.

39. Defendants acted with the intention of having e-mail sent by Plaintiffs blocked and thus interfered with Plaintiffs business and prospective business opportunities.

40. Plaintiffs have lost business and business opportunities as a result of Defendants sending of e-mails received from Plaintiffs to e-mail blocking entities and the resulting blocking of Plaintiffs e-mails.

41. Plaintiffs lost business has resulted in substantial lost income to Plaintiffs.

42. Defendants' acted intentionally, willfully or with such gross negligence as to indicate Defendants' reckless disregard for Plaintiffs' rights. Plaintiffs are therefore entitled to punitive damages from Defendants.

-9-
43. Plaintiffs respectfully request that this Court enter a judgment in their favor and against each Defendant, and award Plaintiffs an amount of damages in excess of $75,000 to compensate Plaintiffs for Defendant's intentional interference with Plaintiffs' prospective economic advantage, award punitive damages, award costs of suit, and for any other relief that this Court deems just.

COUNT III
Tortious Interference With A Contract
(Against All Defendants)

44. Plaintiffs incorporate paragraphs I through 43 above as set forth fully in Count III.

45. Plaintiffs have contracts with third party Internet Service Providers (ISPs) to provide the necessary bandwidth to send their e-mails.

46. Defendants, at all times relevant to this Complaint, knew that Plaintiffs have contracts with third party ISPs to provide bandwidth to Plaintiffs.

47. Defendants directly contacted the third party ISPs providing bandwidth to Plaintiffs and claimed that Plaintiffs are spammers, with the intention that those service providers would cease to provide bandwidth to Plaintiffs, which in turn made it impossible for Plaintiffs to conduct their business.

48. Certain third party ISPs have terminated their contracts with Plaintiffs to provide bandwidth to Plaintiffs as a result of Defendants' intentional interference with Plaintiffs' contracts.

49. Plaintiffs have suffered damages as a result of their third party service providers terminating their contracts with Plaintiffs.

-10-
50. Defendants' acted intentionally, willfully or with such gross negligence as to indicate Defendants' reckless disregard for Plaintiffs' rights. Plaintiffs are therefore entitled to punitive damages from Defendants.

51. Plaintiffs respectfully request that this Court enter a judgment in their favor and against each Defendant, and award Plaintiffs an amount of damages in excess of $75,000 to compensate Plaintiffs for Defendant's intentional interference with Plaintiffs' contracts, award punitive damages, award costs of suit, and for any other relief that this Court deems just.

JURY DEMAND

52. In addition to the relief sought in this Complaint, Plaintiffs respectfully request a jury trial.

Respectfully submitted,
E360Insight, LLC. and David Linhardt

By:
/s/ Joseph L. Kish
One of Their Attorneys
Joseph L. Kish (6197916)
Daniel J. Peters (6272859)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

MOTION to Dismiss

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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

v.
MARK JAMES FERGUSON, an individual,
SUSAN WILSON, an individual, KELLY
CHIEN, are individual,
Defendants,

MOTION TO DISMISS COMPLAINT

1. Mark James Ferguson, pursuant to Fed. R. Civ. Proc. 12(b)(2)(6) moves this Court to dismiss Plaintiffs Complaint against him. The reasons for this Motion are set forth in the accompanying Memorandum in Support.

Mark James Ferguson
[address and telephone redacted]

-2-
MEMORANDUM IN SUPPORT

I. INTRODUCTION

Defendant Ferguson is an Interactive Service Provider residing and conducting business in the states of Washington and California. Ferguson does not reside, conduct business, own property or have a bank account in Illinois. Ferguson does not meet the minimum contact requirements for Illinois to subject him to Illinois jurisdiction.

This is not the first time, nor the second time Ferguson has been sued for the same causes of action by these Plaintiffs. In both prior cases the Plaintiffs requested and were granted voluntary dismissals without prejudice. The Illinois Judicial system is being used by plaintiffs to harass, bully, torment and browbeat Ferguson, and to furthermore enable the Plaintiffs to avoid answering for their own unlawful actions. The following is a chronology of events relevant to this dispute.

January 12, 2007
Ferguson received first spare from E360Insight.

January 20, 2007
Ferguson posted to NANAE that the spam was not welcome.

January 20, 2007
Plaintiff acknowledges Ferguson's complaint about spam in the same forum.

February 9, 2007
Ferguson sends letter of demand for damages, to expire on March 9, 2007

March 4, 2007
Plaintiffs post falsified signup information for Ferguson

March 5, 2007
Plaintiffs responds through legal counsel to Letter of Demand denying Ferguson's claims citing Plaintiffs falsified signup information.

March 7, 2007
Plaintiffs file suit in THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION for Defamation Per Se, Tortious Interference With A Prospective Business Advantage and Tortious Interference With A Contract: Ferguson, Susan Wilson, Rob Saecker, Rich Tietjens, Kelly Chien, and Tim Skirvin.

March 16, 2007
Bill Silverstein then filed suit against Plaintiffs for spam.

-3-
May 8, 2007
Plaintiffs requested a voluntary dismissal and it is granted.

May 11, 2007
Plaintiffs file the same suit only this time Plaintiffs removed Kelly Chien and added Bill Silverstein so the defendants were now: Ferguson, Susan Wilson, Rob Saecker, Rich Tietjens, William Silverstein, and Tim Skirvin

Over the following months Tim Skirvin hired counsel to file multiple motions for change of venue and for dismissal, and Robert Saecker hired counsel and responded with a motion to dismiss for lack of Jurisdiction. Ferguson responded by filing a motion to dismiss for lack of jurisdiction and a reply brief. These motions were to be heard September 23, 2007.

September, 23, 2007
Plaintiffs request and are granted a second voluntary dismissal.

Subsequently, in December, 2007, Ferguson through legal counsel presented Plaintiffs with a Settlement Agreement, copy of the complaint to be filed and a request for waiver of service. This agreement was for not only the unlawful spam email but more importantly concerned the many interviews made by Plaintiffs to the news media accusing Ferguson of "hacking" Plaintiffs' servers and causing to be sent pornography and other objectionable material in direct conflict with Ferguson's stated anti-spam position. Additionally Plaintiffs made public accusatory statements in the news media that Ferguson had signed up for their unlawful spam emails only to then file complaints thus damaging Ferguson's reputation further.

January 18, 2007
In clear retaliation, Plaintiffs filed this suit, the third suit to avoid having to defend themselves in the jurisdiction local to Ferguson. Plaintiffs filed this suit to harass, intimidate and otherwise harm Ferguson.

II FACTS

The following allegations are the basis for Plaintiffs' claims for damages against
-4-
Defendant Ferguson.

In Paragraph 33 of Plaintiffs' complaint Plaintiff alleges Ferguson "referred" to Plaintiff as spammers.

Defendant's references to Plaintiffs as spammers constitute defamation because they impute that e360, and through it, Linhardt, committed criminal acts, or are unable to perform their services ably or with integrity, thus prejudicing Plaintiffs reputation and in their employment

Plaintiffs acknowledged their spam was unwanted and unwelcome when Plaintiff Dave Linhardt, in a post dated January 20, 2007, stated

You can send a data file containing these email addresses to e360insight@gmail.com. We would he happy to remove there from our system and not mail them again.

Regards,
Dave Linhardt
e360Insight, LLC

Plaintiff's posted March 4, 2008 the manufactured signup information for Defendant Ferguson.

Below is the source information of where you signed up and when.
email: washington_._resident@whew.com
first name: MARK
last-name: FERGUSON
address 1: [REDACTED]
state: WA
zip: 98418
Zip+4: 98418-6734
opt-in site: 123FreeTravel.com
opt-in date: 2006-11-2900:00:00.000
ip address: 131.191.13.159

-5-
Net.admin.net-abuse.email [NANAE] is for the discussion of email abuse and is not directed at Illinois residents.

alt.illinois-schools.high.schools.niles-west
chi.ai
chi.eats
chi.forsale
chi.general
chi.internet
chi.jobs
chi.-jobs.offered
chi.mail
chi-media
chi.music
chi.news
chi.news.stats
chi.personals
chi.places
chi.politics
chi.test
chi.wanted
chi.weather

Defendant MARK JAMES FERGUSON will and hereby does request that this Court take judicial notice of the following:

Plaintiffs were caught in Maui Jim Inc., v. Bargain Depot, Inc. case# Case No. 06-1169, spamming unlawfully for "knockoffs" of Maui Jim products, delayed and obstructed the proceedings.

In its Motion for Summary Judgment, Maui Jim explicitly requests that the Court do the following five things:
(1) declare the `059 patent valid;
(2) declare that BDE infringed the patent,
(3) grant Maui Jim damages equal to the minimum statutory damages ($250);
(4) adjudge that BDE's bad faith and dilatory conduct makes this case exceptional under 35 U.S.C. § 285; and
(5) compensate Maui Jim by awarding it reasonable attorney fees incurred in prosecuting this matter after the date of the "reneged-upon settlement."

In its Response to the Motion for Summary Judgment, BDE has admitted all of the factual allegations related to (1), (2), and (3) above and concedes summary judgment on those points.
[...]

The bottom line is that BDE's unwillingness to settle under the terms to which it had initially agreed, without any sound justification far its purported reason, combined with its discovery delays, renders this case
-6-
"exceptional" for purposes of 35 U.S.C. § 285.

III LAW AND ARGUMENT

A. Immunity For Reporting Objectionable Material.

US CODE: Title 47 § 230 provides protection for private blocking and screening of offensive material is very clear that individuals that report offensive and/or objectionable material shall not be held liable for those acts [The Superior Court of the State of California County of Orange Case Number 03CC12794] (Pallorium vs. Jared, Cal. 4th, 2007).

(c) Protection for "Good Samaritan" blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of
(A) any action voluntarily taken in good faith to restrict access to or availability rfmaterial that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;- or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

B. Federal Law Required Plaintiffs To Cease And Desist Sending Spam After Notice From The Recipient.
The Can Spam Act of 2003, 15 U.S.C. § 7701 requires removal after notice is received by the sender within. 10 business days of said notice.
-7-
(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 1(1 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request;

Furthermore Washington State has laws governing deceptive email marketing.

§ 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.

C. Neither General Nor Specific Jurisdiction Exists In Illinois. There is a two-step analysis to determine personal jurisdiction under the laws of Illinois. First, whether the state's long-arm statute and the applicable civil rule confer personal; Jurisdiction; and second, whether granting jurisdiction under the statute and rule would deprive the defendant of the right to due process of law pursuant to the U.S. Constitution.

§ 2-209. Act submitting to jurisdiction--Process
(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising
-8-
from the doing of any or such acts:
(1) The transaction of any business within this State; (2) The commission of a tortious act within this State; (3) The ownership, use, or possession of any real estate situated in this State;

D. Personal Jurisdiction Not Consistent With Procedural Due Process Granting jurisdiction over Ferguson in a Court 2,500 miles from his place of residence would deprive Ferguson of his Procedural Due Process and place Ferguson at a very distinct disadvantage removing all notions of fair play.

The United States Supreme Court upheld this principle, and raised it to a constitutional level, when it stated that judgments entered by a court without such jurisdiction were violations of the Due Process Clause of the U. S. Constitution (Pennoyer v. Neff, 95 US. 714, 24 L. Ed. 565 [1877]).
http://law.jrank.org/pages8361/Long-Arm-Statute.html

If authority exists under Illinois's long-arm statute to exercise jurisdiction over Ferguson, which it does not, the Court must also consider whether the jurisdiction granted under the longarm statute is consistent with "traditional notions of fair play and substantial justice." International Shoe Co. v Washington, 326 U.S. 310, 316 (1945). In order to meet the International Shoe standard, defendant must have engaged in "continuous and systematic" conduct in the forum state. Id See also, Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co,, 91 F.3d 790, 793 6th Cir. 1996). Even if Ferguson posted numerous complaints about the Plaintiffs, hailing Ferguson into Court in Illinois is not reasonable and offends all notions of fair play and substantial justice. This is because the newsgroup to which communications are sent are automatically sent via Usenet (interstate commerce), with no specific intent to send these complaints to Illinois
-9-
residents or businesses. When the defendant's alleged contact with the forum state occurs via the Usenet, the Plaintiffs face an initial hurdle in showing where this Usenet conduct took place for j jurisdictional purposes. The Sixth Circuit holds that the operation of a website that is accessible to anyone over the Internet is insufficient to justify general jurisdiction, even where the website enables the defendant to do business with. residents of the forum state, because such activity does not approximate physical presence within the state's borders-the Usenet is not the same as the Internet or the World Wide Web and is not largely available requiring special software to access it.

Using Cadle Company v. Schliebtntann, 123 Fed. Appx. 675, 677, it was similarly found, complaints merely present an opportunity for persons in every state, and, in fact, in different countries to read them; and should not and does not constitute physical presence within the State of Illinois. Furthermore Mr. Ferguson states, any contact with Illinois is merely fortuitous and unintended.

E. Personal Jurisdiction Over Ferguson Does Not Exist.

Analyzing jurisdiction relative to Ferguson, there is no allegation or evidence that Ferguson himself transacted business in Illinois, Ferguson does not live, work, transact business, or own real estate in Illinois. He is a resident of Washington. Based upon Southern Machine, supra, there simply is no basis to assert personal jurisdiction over Ferguson.

IV. CONCLUSION
For the foregoing reasons, Plaintiffs Complaint against Defendant Ferguson must be dismissed with prejudice and under F-R.C.P. 41. this court giant cost to Ferguson for the previous case Plaintiffs did cause to be brought against Ferguson with the sole intent
-10-
of requesting a voluntary dismissal which was requested and granted. Furthermore, this same exact case having been dismissed voluntarily not once but twice at the sole request of the Plaintiff should be considered adjudicated pursuant to F.R.C.P. 41(a)(1).

Even if all causes of action in the complaint are found to be true and this court does find it has jurisdiction, Ferguson is an Interactive Service Provider and therefore has immunity from damages under Title 47 US Code, 230 for both sending the Spam from Plaintiffs to Spamhaus.org or any other blocking agency and to the Plaintiffs Internet Service Providers in Ferguson's effort to prevent the spam and to bolster the defense of Spamhaus when Spamhaus requested copies of spam from Plaintiffs to present in Illinois Court.

Ferguson respectfully requests this Court retain jurisdiction over Plaintiffs for purposes of hearing Ferguson's motion for sanctions pursuant to F. R.C.P. 11(b) against Plaintiffs severally and individually, the Synergy Law Group severally and the attorneys individually.

Respectfully submitted,

Mark James Ferguson

Attachment	Date	Size
MotDismissFerguson.pdf	03/25/08 5:08 pm	240.36 KB

Status Report

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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

v.

MARK JAMES FERGUSON, an individual,
SUSAN WILSON A.K.A. SUSAN GUNN, an
individual, and KELLY CHIEN, an individual,
Defendants.

JOINT STATUS REPORT

Pursuant to this Court’s standing Order, Plaintiff, e360Insight, LLC and David Linhardt and Defendant, Mark James Ferguson, submit this Joint Status Report in advance of the Initial Status Hearing scheduled for March 27, 2008 at 9:00 a.m.:

A. Nature of the Case.
1. The lead attorneys on the case:
• Plaintiffs – Joseph L. Kish, Synergy Law Group, LLC
• Defendant Ferguson – Pro se

2. Basis for federal jurisdiction:
• Diversity Jurisdiction and the amount in controversy exceeds $75,000.00.

3. Nature of the claims asserted in the complaint and any counterclaims:
• Plaintiff asserts claims based on defamation, tortious interference with a prospective business advantage and tortious interference with a contract.
• No counterclaims have been filed.

4. Name of any party that has not been served and the nature of the nonservice:
• Defendants Chein and Wilson have not been served. Both Defendants were sent waiver of service requests and neither returned the waiver (due February 28, 2008). Plaintiff is currently attempting to serve both Defendants through a special process server.

5. Principal legal issues:
• A determination as to whether postings on an internet message board referring to Plaintiff as sender of “spam” is actionable.

• A determination as to whether the actions of Defendants in posting allegedly defamatory statements referring to Plaintiffs as senders of “spam” and sending such allegedly defamatory statements to email blocking entities and Internet Service Providers constitutes a tortious interference with a prospective business advantage.

• A determination as to whether the alleged action of Defendants in contacting Internet Service Providers, with which Plaintiff had contracts, with the alleged intent of interfering with those contracts constitutes tortious interference with a contract.

6. Principal factual issues:
• Whether the alleged statements by Defendants constitute defamation; whether the alleged posting of defamatory statements resulted in lost business opportunities for Plaintiff; and, whether the alleged contacting of entities with which Plaintiff had valid contracts and repeating allegedly defamatory comments to those entities interfered with Plaintiff’s valid contracts with those entites.

B. Discovery.
1. Brief description of completed discovery and any remaining discovery:
• Defendant Ferguson has provided documentation related to his defense that he received unwanted commercial e-mail.
• The Parties have not yet exchanged formal discovery and anticipate written and oral discovery.

2. Brief description of any pending motions and anticipated motions;
• Defendant Ferguson has filed but not noticed the following motions:
o Motion to Dismiss based on lack of personal jurisdiction;
o Motion for Continuance; and,
o Motion for telephone conference based on Forum Non Conveniens.

3. Brief description of any previously entered rulings on substantive issues:
• None.

4. Any previously filed status reports:
• None.

C. Trial
1. If a trial is anticipated whether the parties consent to proceed before a Magistrate Judge:
• At this point the parties are unable to assess whether there will be a need for trial or whether the parties can mutually work to resolve the dispute.

2. 2. If a trial is anticipated, how long the trial will take and whether a jury is requested:
• A trial in this case should take no more than 4 days;
• A jury trial demand has been made by Plaintiff.

D. Settlement
1. Status of any settlement discussions and whether the parties request a settlement conference.

• Plaintiff and Defendant Ferguson have been in settlement discussions and have come to an agreement in terms of the monetary considerations at issue and are currently working to resolve certain aspects of the negotiations.

Respectfully submitted,
E360Insight, LLC. and David Linhardt

By: /s/ Daniel J. Peters___
One of Their Attorneys

Joseph L. Kish (6197916)
Daniel J. Peters (6272859)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

AND

Mark James Ferguson
Pro Se

Mark James Ferguson
[redacted]

Attachment	Date	Size
StatusReport.pdf	03/25/08 5:25 pm	46.26 KB

MOTION to Dismiss

I debated how many of these documents to OCR and put up text versions of. Ultimately, I've decided to just do this one. The actual motion to dismiss merely states that it is a motion to dismiss and refers the court to this document and the affidavit. The affidavit merely restates things that you can read here. So, this one it is.

=======================================
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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

v.

MARK JAMES FERGUSON, an individual,
SUSAN WILSON A.K.A. SUSAN GUNN, an
individual, and KELLY CHIEN, an individual,
Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

NOW COMES SUSAN WILSON, a/k/a SUSAN GUNN ("Gunn"), by her counsel and for her Memorandum in Support of Gunn's Motion to Dismiss for Lack of Personal Jurisdiction ("Motion") states as follows:

INTRODUCTION

Ms. Gunn's Motion is filed in response to Plaintiffs', E360INSIGHT, LLC, and David Linhardt, (collectively "Plaintiffs") Complaint, Count I for defamation as against all Defendants; Count II for tortious interference with prospective business advantage as against all Defendants; and Count III for tortious interference with contract as against all of the Defendants.1 Notwithstanding the allegations of the Plaintiffs, the narrow issue that Gunn requests this Court to consider is whether this Court has personal jurisdiction over Gunn.

[1 Plaintiffs in the caption of their Complaint seek injunctive relief but make no allegations in their Complaint nor is there a separate count in their Complaint supporting such a claim.]

-2-
FACTUAL SUMMARY

On January 18, 2008, as noted, the Plaintiffs filed a three count Complaint. This motion filed by Gunn is limited to a determination as to whether this Honorable Court has jurisdiction over the Defendant Gunn. By way of brief background, Plaintiff E360INSIGHT, LLC, by its own admission is an e-mail based marketing company. Complaint, par. 10. The Defendant Gunn is a volunteer researcher of Spamhaus, which is an international e-mail organization that operates at www.spamhaus.org. Complaint, par. 29. This cause of action arises out of the allegations by Plaintiffs that e-mails sent by Gunn to third parties and/or internet postings represent defamation and/or tortious interference and interference with prospective economic business advantage. It is the same allegations concerning e-mails and internet postings that give rise to Plaintiffs' cause of action in Count II and Count III of their Complaint.

However, since Gunn's motion is limited to the issue of whether this Court has personal jurisdiction over her, and the Plaintiffs' claims, the remaining facts set forth herein are limited to the issue of jurisdiction. Gunn is a resident of Garden Grove, California. Gunn does not do business in the State of Illinois and has never visited the State of Illinois. Gunn Affidavit, par. 2-4. Gunn does not own any property in the State of Illinois. Gunn Affidavit, par. 3. Gunn, in her Affidavit, denies the essential allegations of the Complaint, however, attests that even if the described activities were true, those are activities that are done in furtherance of her duties as a volunteer researcher for Spamhaus. Gunn Affidavit, par. 5. Gunn denies sending any e-mails, even
-3-
so, the e-mails attached to Plaintiffs' Complaint were not sent to anybody in the State of Illinois. Gunn Affidavit, par. 6.

It is clear that based upon the foregoing facts and the arguments set forth herein below, there is no general jurisdiction over Ms. Gunn and there is no specific jurisdiction. Moreover, as to Plaintiffs' specific allegations supporting their claims for defamation, intentional interference with prospective business advantage and tortious interference with contract, it is clear that there is no personal jurisdiction over Ms. Gunn. In addition, Ms. Gunn is protected by the Fiduciary Shield Doctrine which prohibits the exercise of personal jurisdiction over Ms. Gunn.

For those reasons, Plaintiffs' Complaint should be dismissed as Gunn respectfully submits that this Court lacks personal jurisdiction over Gunn.

LAW AND ARGUMENT

A. The Court Lacks Personal Jurisdiction Over Defendant Gunn.

The Plaintiff has the burden to prove that this Court has personal jurisdiction over the Defendants. RAR, Inc. v. Turner Diesel, Limited, 107 F.3d 1272, 1276 (7th Cir. 1997); Traveler's Cas. & Sur. Co. v. Interclaim (Bermuda, 304 F. Supp.2d 1018 (N.D. IL 2004). In a case based on diversity of citizenship, the federal district courts sitting in Illinois have personal jurisdiction over a non-resident defendant only if an Illinois court would have jurisdiction. RAR, 107 F.3d at 1275. For an Illinois court to have personal jurisdiction over a non-resident defendant, personal jurisdiction must be permitted by (1) Illinois statutory law; (2) the Illinois Constitution; and (3) the Constitution of the United States. Id. at 1276.

-4-
With respect to Illinois statutory law, the Illinois long arm statute extends personal jurisdiction to the limit allowed under the due process clauses of the Constitution of the United States and Illinois Constitution. 735 ILCS, Section 5/209(c); RAR, 107 F.3d at 1276; Dehmlow v. Austin Fireworks, 963 F.2d 941, 945 (7th Cir. 1992). Thus, in Illinois the court need only inquire whether personal jurisdiction is permitted by (1) the Illinois Constitution and (2) the Constitution of the United States. RAR, 107 F.3d at 1276; Banwell v. Illinois College of Optometry, 981 F.Supp. 1137, 1139 N.D. Ill. 1997. If jurisdiction is improper under either the United States or Illinois Constitution, the court lacks personal jurisdiction over the defendant. Glass v. Kemper Corporation, 930 F.Supp. 332, 337 (N.D. Ill. 1996).

B. General Jurisdiction is Lacking.

This Court is no doubt aware that personal jurisdiction may be established through evidence of "general jurisdiction" where the defendant has "continuous and systematic" contacts with the state in question or by proof establishing "specific jurisdiction" in which personal jurisdiction exists for controversies that arise out of or are related to the defendant's forum contacts. Hyatt International Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002); see also, Steel Warehouse of Wisconsin, Inc. v. Leech, 154 F.3d 712, 714 (7th Cir. 1998).

In this case, as stated in the Affidavit of Susan Gunn attached as Exhibit 1, Ms. Gunn neither maintains offices, employees or real and/or personal property in Illinois. She is not employed in Illinois. Furthermore, there is no allegation in Plaintiffs' Complaint supporting personal jurisdiction of this Honorable Court over Ms. Gunn. Ms. Gunn has not traveled to Illinois and is resident of the State of California. Ms. Gunn
-5-
simply has no contacts with the State of Illinois, let alone minimum contacts. Accordingly, there is no reasonable basis to conclude that the Court has personal jurisdiction over Defendant Gunn based on the Doctrine of General Jurisdiction. Traveler's Cas. & Sur Co. v. Interclaim (Bermuda) Ltd., 304 F.Supp.2d 1018, 1024-26 (N.D. Ill. 2004).

C. Specific Jurisdiction is Also Lacking.

In determining whether personal jurisdiction exists under "specific jurisdiction" Plaintiffs must establish that Defendant Gunn has minimum contact with Illinois. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77, 105 S.Ct. 2174 (1985). In determining whether sufficient minimum contacts exist, the court must determine whether the defendants and each of them could "reasonably anticipate being hailed into court" in Illinois. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559 (1980). These contacts may not be fortuitous or attenuated. Traveler's Cas. & Sur. Co. v. Interclaim (Bermuda) Ltd., 304 F.Supp. 2d 1018, 1024-26 (N.D. Ill. 2004). Rather, this standard is satisfied when a defendant purposefully directs its activities at the forum state and the litigation arises from injuries caused by those activities. Burger King Corp., 471U.S. at 474, 105 S.Ct. 2174. The causal connection between litigation and defendant's contacts with Illinois must be close enough to comport with fair play and substantial justice. RAR, 107 F.3d at 1278. The plaintiff must prove that the defendant's conduct in connection with the forum are such that the defendant "purposeful availed" itself of the privilege of conducting activities in the forum, invoking the benefits and protections of its laws. Burger King, 471 U.S. at 474-75, 105 S.Ct. 2174; RAR, 107 F.3d at 1277. In this case, based upon her Affidavit it is clear that Gunn did not purposefully
-6-
avail herself of the protection of Illinois and never "conducted any activities" in Illinois. There are no allegations in the Plaintiffs' Complaint establishing how this Court could invoke personal jurisdiction over Ms. Gunn. Perhaps more importantly, Ms. Gunn's Affidavit settles any doubt that she simply has no contact with this forum. It is the Plaintiffs' burden to prove that personal jurisdiction exists. Simply stated, Ms. Gunn has had no contact with Illinois, the forum state.

In summary, the Defendant Gunn is not engaged in activities in Illinois that are sufficient to establish personal jurisdiction in this state. In addition, as set forth above, there are no allegations made by Plaintiffs that Ms. Gunn conducted any activities in the State of Illinois. Based on the foregoing, personal jurisdiction is lacking.

D. Illinois Precedent Confirms That Personal Jurisdiction is Lacking.

i. Plaintiffs have not established this Court's personal jurisdiction over Gunn concerning their purported defamatory claim.

Courts interpreting personal jurisdiction in causes of action arising out of defamation apply the "effects" test as set forth in Calder v. Jones, 465 U.S. at 7088-89, 104 F. Ct. 1482. The United States District Court for the Eastern District of Illinois has adopted the Calder test in Jackson v. The California Newspapers, 406 F.Supp.2d 893, 896 (N.D. Ill. 2005).

Judge Moran in Jackson recited the Calder court's finding stating that a California court had personal jurisdiction over a Florida defendant because of the effects of a libelous article had on plaintiff, a professional entertainer, living and working in California. The Calder court, as explained by Judge Moran, stated "In judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum, and the litigation. Calder, 465 U.S. at 788. See also, Jackson v. California Newspapers,
-7-
406 F.Supp.2d at 896. Judge Moran drew a distinction between the Calder matter and the Jackson matter and found that in Calder 600,000 out of 5 million copies of the Florida defendant's weekly newspaper were circulated in California where as in the Jackson case, only 1 out of 65,000 print newspaper subscribers and no internet newspaper subscribers resided in Illinois. Additionally, Judge Moran went on to state that the plaintiff in Calder like the plaintiff in the Jackson matter had a national reputation, and the brunt of the Calder plaintiff's injury was felt in California. The harm caused upon the Calder plaintiff was centered in California and the Calder plaintiff experienced the most severe harm in California.

The Plaintiff here does not allege that any defamatory e-mails or statements were sent to any Illinois residents or any Illinois businesses by Ms. Gunn. In fact, according to Ms. Gunn, no e-mails were sent to anyone in Illinois as the assertions are false. In addition, no defamatory conduct is alleged to have taken place in Illinois. To the contrary, the Defendant Gunn attested in her Affidavit that no such e-mails were directed to anyone in Illinois. Based on the Calder case and the Jackson case, the place of the defamation is tantamount to establishing jurisdiction. Here, while Gunn vehemently denies any statements were actually made, let alone defamatory statements, nonetheless for the limited purpose of arguing against personal jurisdiction, it is clear that personal jurisdiction is not proper here in Illinois.

ii. The Plaintiffs' claims in Counts II and III must also be dismissed because Plaintiffs have failed to establish personal jurisdiction over Plaintiff.

Plaintiffs have alleged in Counts II and III a cause of action for tortious interference with contract, and tortious interference with prospective business advantage, respectively. In order to establish personal jurisdiction for tortious interference with
-8-
contract or intentional interference with prospective business advantage, it is incumbent upon Plaintiff to plead the locale of the injury. (Emphasis added.) In addition, even if the purported economic injury occurred in the forum chosen by Plaintiffs, allegations that the Defendants had an intent to effect an Illinois interest and has impaired it is imperative. (Emphasis added.) Ettelson v. Chien, 352 F.Supp. 2d 861, 866-876 (N.D. 111. 2005). Plaintiffs have failed to allege the place of any injury. In addition, Plaintiffs did not allege that the Defendant had an intent to effect an Illinois interest or has impaired the same. Therefore, Plaintiffs have not established that personal jurisdiction may be invoked by this Court as to their Count II or Count III of their Complaint and the same should be dismissed.

E. Gunn Is Protected From This Court Invoking Personal Jurisdiction Based on the Fiduciary Shield Doctrine.

Illinois recognizes the fiduciary shield doctrine barring the exercise of personal jurisdiction over an employee or agent who sought the protection and benefits of Illinois law only to serve the interests of his or her employer or principal. International Financial Services Corp. v. Didde Corp., F. Supp. 2d 2002 WL 398513, page 4; citing, Central States Pension Fund v. Edwards, 1996 WL 385344, page 10 (N.D. Ill. 1996). Illinois courts have long recognized the Fiduciary Shield Doctrine. Petrich v. MCMusic World, Inc., 862 N.E.2d 1171 (1St Dist. 2007) 565 N.E. 2d 1302 1990); Burnhope v. National Mortgage Equity Corp., 567 N.E. 2d 356 (1St Dist. 1990); Renner v. Grand Trunk Western Railroad Company, 641 N.E.2d 1 (1 st Dist. 1994); Alpert v. Bertsch, 601 N.E.2d 1031 (1St Dist. 1992).

In Ms. Gunn's Affidavit she denies the veracity of the allegations in Plaintiffs' Complaint. However, Ms. Gunn attests that if true, the conduct complained of occurred
-9-
while she was working in her capacity as a volunteer for Spamhaus. In addition, the Plaintiffs recognize that the conduct they complain of was in furtherance of Ms. Gunn's responsibilities for Spamhaus.

Wilson has admitted to being a Spamhaus volunteer, referring to her work for an international e-mail blacklisting organization that operates at www.spamhaus.org . . . Wilson has generated SBL and ROSKSO listings on Spamhaus.org for the express purpose of blocking E360's e-mail. In addition, Wilson knowingly created these listings so they could be downloaded and used by other blacklist organizations ...
Complaint, paragraph 29.

Clearly, based on Plaintiffs' allegations alone, the wrongful conduct alleged by Plaintiffs falls within the Fiduciary Shield Doctrine and thus Ms. Gunn may not be hauled into court here in Illinois in order to defend the allegations of Plaintiffs that, if true, were in furtherance of Ms. Gunn's responsibilities as an agent/employee of Spamhaus. Thus, Gunn respectfully submits that this matter should be dismissed for lack of personal jurisdiction and for any other relief this Court deems must and fit.

CONCLUSION

For the forgoing reasons, the Defendant, Susan Wilson, a/k/a Susan Gunn, prays that her Motion to Dismiss this action based on lack of personal jurisdiction be granted. Respectfully submitted,
SUSAN WILSON a/k/a SUSAN GUNN

By:

/s/
Elliot S. Wiczer
One of Her Attorneys

Elliot S. Wiczer (#6226089)
WICZER & ZELMAR, LLC
Attorneys for Defendant Susan Gunn
500 Skokie Boulevard, Suite 350
Northbrook, IL 60062
(847) 849-4800

Attachment	Date	Size
MotDismissWilson.pdf	04/15/08 11:20 am	24.17 KB
MotDismissWilsonMemo.pdf	04/15/08 11:20 am	357.61 KB
MotDismissWilsonMemoAff.pdf	04/15/08 11:20 am	23.82 KB

MOTION to Sever and Dismiss (Chein)

This is again a bit of a document dump.

Attachment	Date	Size
MotSeverDismissChien.pdf	06/02/08 4:36 pm	46.83 KB
MotSeverDismissChienMemo.pdf	06/02/08 4:36 pm	84.98 KB

MOTION to Sever (Wilson)

This is again a bit of a document dump.

Susan already has a motion to dismiss pending.

Attachment	Date	Size
MotSeverWilson.pdf	06/02/08 4:39 pm	53.75 KB
MotSeverWilsonMemo.pdf	06/02/08 4:39 pm	282.59 KB

MOTION to Dismiss

I guess the money for all of this litigation is starting to run low. e360 is cutting this lawsuit loose with a voluntary motion to dismiss WITH PREJUDICE (meaning that they cannot refile the case later if they change their minds).

Paragraph 2 is particularly telling in this regard. They're dismissing the case after settling with only one of the three parties, rather than dismissing against the one party they settled with and continuing against the other two.
=====================================
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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

v.

MARK JAMES FERGUSON, an individual, SUSAN WILSON A.K.A. SUSAN GUNN, an individual, and KELLY CHIEN, an individual,
Defendants.

PLAINTIFF’S MOTION FOR VOLUNTARY DISMISSAL

NOW COMES the Plaintiffs in the above-captioned matter, e360Insight, LLC and David Linhardt, by and through their attorneys, pursuant to F.R.C.P. 41(b), moves this Honorable Court for entry of an order voluntarily dismissing their claim filed against Defendants with prejudice and in support thereof states as follows:

1. Fed. R. Civ. P. 41(b) grants this Court the authority to dismiss this action on motion by Plaintiffs.

2. Plaintiffs have entered into a settlement agreement with Defendant Ferguson and attempted to resolve this matter through settlement with Defendants Wilson and Chien.

WHEREFORE, Plaintiffs respectfully request that this honorable Court enter an Order dismissing this matter with prejudice.

-2-
Respectfully submitted,
E360Insight, LLC. and David Linhardt

By: /s/ Daniel J. Peters
One of Their Attorneys

Joseph L. Kish
Daniel J. Peters
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Attachment	Date	Size
MotDismiss.pdf	06/02/08 4:46 pm	28.09 KB