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.
THE SPAMHAUS PROJECT,
a company limited by guarantee and
organized under the laws of England, aka
THE SPAMHAUS PROJECT LTD,
Defendant.
MOTION FOR A RULE TO SHOW CAUSE
Plaintiffs, e360lnsight, LLC and David Linhardt (collectively Plaintiffs), by and through their attorneys, Synergy Law Group, LLC, respectfully requests that this Court issue a rule to show cause why Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., (Defendant) should not be held in contempt for its failure to comply with the citation to discover assets served on Defendant on October 23, 2006. In support of this motion Plaintiffs state:
1. On September 13, 2006, in the United States District Court for the Northern District of Illinois, a judgment in the amount of $11,716,971.05 was entered in favor of the Plaintiffs and against Defendant in Case No. 06 CV 3958 and a balance of $11,716,971.05 remains unsatisfied. A copy of the Order is attached hereto as Exhibit A.
2. On October 23, 2006, Plaintiffs caused to be served a citation to discover assets directed to Defendant. A copy of the initial citation to discover assets is attached hereto as Exhibit B.
3. Included in the initial citation to discover assets, the Plaintiffs sought "Any and all information regarding all bank, money or other financial accounts, including but not limited to bank statements and check ledgers, in the name of The Spamhaus Project, LTD, and/or its officers and/or directors, along with such information for any of The Spamhaus Project, LTD's subsidiaries, successors or other related entities; for all such information, provide the name of the accounts, account numbers, amount of money currently held in each account and monthly statements for each said account for the past three years" ¶6 of Rider attached to Exhibit B.
4. Defendant filed a response to the initial citation to discover assets on November 10, 2006. A copy of Defendant's response to the citation to discover assets is attached hereto as Exhibit C.
5. For its response to ¶6 of the rider attached to the citation, Defendant through its counsel, stated in pertinent part that "Spamhaus has no subsidiaries, successors, or other related entities as that term is understood." See Exhibit C (emphasis added).
6. Defendant also submitted an affidavit from Steve Linford where Mr. Linford attested to the fact that "The Spamhaus Project, LTD has no subsidiaries, successors, parent companies, or other such related entities. See ¶6 of affidavit of Mr. Linford attached hereto as Exhibit D. (Unlike counsel for Defendant, Mr. Linford did not use any qualifications to his statement).
7. Through the use of subpoenas, Plaintiffs have discovered the existence of a fee generating Spamhaus entity known as Spamhaus Technology, LTD.
8. On information and belief, Spamhaus Technology, LTD is wholly owned by Mr. Linford. See Exhibit E.
9. The bills submitted to clients of Spamhaus Technology, LTD reference The Spamhaus Project explicitly and use a contact e-mail address with the same domain as The Spamhaus Project. See Exhibit F & G.
10. Spamhaus Technology, LTD has payments remitted to the same address as The Spamhaus Project. See Exhibit F & G.
11. Based on the foregoing, it is clear that Spamhaus Technology, LTD is at least a "related entity" as that term is used in the citation to discover assets.
12. Defendant and Defendant's counsel wrongfully withheld the existence of Spamhaus Technology, LTD from Plaintiffs.
13. Pursuant to Local Rule 37.1, counsel for Plaintiffs e-mailed counsel for Defendant on March 13, 2007 in an attempt to resolve this matter without the need for court intervention. Counsel for The Spamhaus Project responded by stating that Spambaus Technology is not owned by The Spamhaus Project. Counsel's response is inadequate. The citation sought information concerning other related entities, not just entities owned by The Spamhaus Project.
WHEREFORE, Plaintiffs, e360insight, LLC and David Linhardt, respectfully request that this Court enter an Order for a Rule to Show Cause as to why Defendant should not be held in contempt for failure to fully respond to Plaintiffs' citation to discover assets and sanction them in the amount of Plaintiffs' reasonable attorney's fees in connection with bringing this motion.
Respectfully submitted,
E360Insight, LLC. and David Linhardt
By: /s/ Daniel J. Peters
One of Their Attorneys
Bartly J. Loethen
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
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing Motion for a Rule to Show Cause was served upon the attorneys listed below electronically through CM/ECF on March 15, 2007.
Carrie A Fino cfino@jenner.com
Stephen M Geissler sgeissler@jenner.com,
Joseph L Kish jkish@synergylawgroup.com
Craig Christopher Martin cmartin@jenner.com, docketing@jenner.com
Matthew M. Neumeier mneumeier@jenner.com
By: /s/ Daniel J. Peters
One of Their Attorneys
Bartly J. Loethen
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
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
e360 INSIGHT, LLC, an Illinois Limited Liability Company, and DAVID LINHARDT, an individual,
Plaintiffs,
v.
THE SPAMHAUS PROJECT, a company limited by guarantee and organized under the laws of England, a/k/a THE SPAMHAUS PROJECT, LTD.,
Defendant.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION
FOR A RULE TO SHOW CAUSE
NOW COMES the Defendant The Spamhaus Project,1 by and through its attorneys Jenner & Block LLP, and submits the following in response to Plaintiffs’ motion for rule to show cause alleging that Spamhaus has failed to comply with the citation to discover assets that it served on October 23, 2006:
1. Plaintiffs’ counsel asserts that pursuant to Local Rule 37.1, he emailed counsel for Spamhaus on March 13, 2007, in an attempt to resolve the matter without need for court intervention. However, the proper rule for meet and confer, as referenced on this court’s website, is Local Rule 37.2. According to that rule, there must be “consultation in person or by telephone and good faith attempts to resolve differences.” One letter sent via email on March 13,
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1 Defendant expressly objects to this Court’s jurisdiction over The Spamhaus Project because Defendant is based solely in the United Kingdom and does not conduct or transact business in Illinois. Moreover, Defendant reserves its arguments based on Plaintiff’s failure to properly effect service of process.
======================
2007 is insufficient to satisfy the meet and confer standard. See Sondker v. Philips Elecs., No. 03-C-2167, 2004 U.S. Dist LEXIS 14477, at *5-7 (N.D. Ill. July 27, 2004) (holding that a letter requesting production of attachments to an email used by opposing party in a summary judgment motion does not satisfy the meet and confer requirements of Local Rule 37.2). Plaintiffs’ counsel did not attempt to resolve these differences in good faith through consultation with Spamhaus prior to filing this motion.
2. Rather, Plaintiffs’ counsel sent a letter via email on March 13, 2007, to which Spamhaus replied on March 15, 2007. Spamhaus at that time reiterated that it has no subsidiaries, successors, parent companies, or other such related entities. Thus, Spamhaus answered the question presented by Plaintiffs. After receiving Spamhaus’ answer on March 15, 2007, Plaintiffs’ counsel sent an email stating “I respectfully disagree and think the court will disagree as well. Our motion will be forthcoming.” The motion was filed the same day, without any attempt by Plaintiffs’ counsel to call Spamhaus’ counsel to explain his disagreement or request additional information. This does not satisfy the spirit of meet and confer in the Northern District of Illinois — as this Court has noted, “Local Rule 37.2 is not a suggestion to the parties, rather it is a mandate…‘failure to comply with the local rules is not merely a “harmless technicality,” but can be a “fatal” mistake.’” Biedrzycki v. Town of Cicero, No. 04-C-3277, 2005 U.S. Dist. LEXIS 16423, at *6-7 (N.D. Ill. Aug. 8, 2005) (quoting Ridge Chrysler Jeep L.L.C. v. Daimler Chrysler Servs. N. Am., L.L.C., 2004 U.S. Dist. LEXIS 26861, 2004 WL 3021842 at *4 (N.D. Ill. 2004)). Plaintiffs’ failure to properly attempt to meet and confer with Spamhaus regarding this difference of opinion is fatal to its Motion for Rule to Show Cause under Local Rule 37.2.
3. Spamhaus originally responded to the October 23, 2006 citation on November 10, 2006. In that response, Spamhaus answered Plaintiffs’ questions and Steve Linford provided an affidavit certifying those responses. Furthermore, Steve Linford expressed his willingness to sit for a telephonic deposition relating to the assets of The Spamhaus Project. Plaintiffs never pursued the option of a telephonic deposition of Steve Linford. Nor did they ever object to the responses provided by Spamhaus on November 10, 2006.
4. Instead, Plaintiffs waited almost 3 months to complain about the answers asserted in the November 10, 2006 response. On January 31, 2007, Plaintiffs filed a second citation to discover assets that was substantively and procedurally defective. Upon receiving a letter from counsel for Spamhaus regarding the defective nature of the citation to discover assets, Plaintiffs withdrew the second citation.
5. On March 7, 2007, acting in good faith, Spamhaus answered the additional questions presented by Plaintiffs. However, that same day, Spamhaus learned that Plaintiffs had been serving subpoenas to third parties without serving those subpoenas on Spamhaus as required by Fed. R. Civ. P. 5(a).
6. In their motion, Plaintiffs allege that through the use of these illicit subpoenas, they discovered an entity named Spamhaus Technology, LTD, which Plaintiffs believe is owned by Steve Linford.2 Steve Linford is not a named defendant in this lawsuit and The Spamhaus Project does not have any subsidiaries, successors, parent companies, or other such related entities, as requested by the citation to discover assets.
7. Plaintiffs claim that Spamhaus Technology, LTD is at least a “related entity” as the term was used in the citation to discover asset. However, the terms used were “subsidiaries,
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2 Steve Linford only role in this litigation is as the director of The Spamhaus Project, not as an individual defendant.
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successors, parent companies, or other such related entities” (emphasis added). Therefore, the term “related entity” as used by Plaintiffs infers that the related entity should be similar to a subsidiary, successor, or parent company. Spamhaus Technology, LTD is not a “such related entity” to The Spamhaus Project, as it is a separate company that is not a “subsidiary, successor or parent company” to The Spamhaus Project, nor is it owned by The Spamhaus Project.
WHEREFORE, Defendant The Spamhaus Project respectfully requests that this Court deny Plaintiffs’ motion for a rule to show cause.
Respectfully submitted,
THE SPAMHAUS PROJECT
Dated: March 19, 2007 By: s/Matthew M. Neumeier_________
Matthew M. Neumeier
Craig C. Martin
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Avenue
Chicago, IL 60611
Telephone: (312) 222-9350
Facsimile: (312) 527-0484
======================
CERTIFICATE OF SERVICE
I, Carrie A. Fino, an attorney, hereby certify that I served the foregoing Defendant’s Response to Plaintiffs’ Motion For A Rule to Show Cause upon:
Joseph L. Kish
Kristen M. Lehner
Bartly Joseph Loethen
Synergy Law Group, L.L.C.
730 West Randolph Street
6th Floor
Chicago, IL 60661
Phone: (312) 454-0015
Fax: (312) 454-0261
by depositing a copy of same in the United States Mail, postage prepaid, on this 19th day of March 2007.
s/Carrie A. Fino ____________
Carrie A. Fino
UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 3.0
Eastern Division
e360 Insight, LLC, et al.
Plaintiff,
v. Case No.: 1:06−cv−03958
Honorable Charles P. Kocoras
Spamhaus Project, The
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday, March 20, 2007:
MINUTE entry before Judge Charles P. Kocoras :Motion hearing held on
3/20/2007. Plaintiffs' motion [75] for a rule to show cause is denied for the reasons stated
in open court. Defendant is directed to respond to all reasonable questions. Mailed
notice(sct, )
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If a minute order or other document is enclosed, please
refer to it for additional information.
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