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UNITED STATES DISTRICT COURT
JAMES S. GORDON, Jr., a married
VIRTUMUNDO, INC, a Delaware
COMES NOW, Plaintiff James S. Gordon, Jr. and brings this COMPLAINT against defendants named herein. Plaintiff alleges the following on information and belief:
1.2 Defendants Virtumundo, Inc., and Adknowledge, Inc., collectively referred to herein as "Virtumundo" upon information and belief, are Delaware corporations, with their principle place of business located in Kansas City, Missouri, and/or Kansas.
1.3 Scott Lynn is an individual who is and officer, director and majority shareholder of Virtumundo, Inc., and Adknowledge, Inc., whose primary residence is in Kansas City, Missouri.
1.4 The actions alleged herein to have been undertaken by the defendants were undertaken by each defendant individually, were actions of which each defendant bad knowledge and that each defendant authorized, controlled, directed, or had the ability to authorize, control or direct, and/or were actions each defendant assisted and/or participated in, and are actions for which each defendant is liable. Each defendant aided, abetted, assisted, and conspired with the actions of each other defendant herein in that each defendant had knowledge of those actions, provided assistance and benefited from those actions, in whole or in part Each of the defendants was the agent of each of the other defendants, and in committing those acts herein alleged, was acting within the course and scope of such agency and with the permission and consent of other defendants.
2. The unlawful actions of the defendants were committed in the States of Washington, Missouri, Kansas and in the judicial district of this Court.
3. The Defendants regularly transact business within the State of Washington by virtue of the fact that they regularly send commercial bulk emails into the State, which emails are received on computers and other electronic devices owned and maintained by residents of the State in the State.
4. As a result of the Defendants' acts and transactions within the State of Washington, this Court has personal jurisdiction over the Defendants under RCW 4.28.185(1)(a).
5. The causes of action complained of herein include allegations that commercial electronic messages sent by or on behalf of the Defendants to the Plaintiffs violate RCW 19.190 et seq., the Washington Commercial Electronic Mail Act (CEMA) and RCW 19.86 et seq., the Washington State Consumer Protection Act (CPA), the Washington Identity Crimes Act (RCW 9.35 et seq., and includes a prayer for relief in excess of $75,000, exclusive of interest and costs.
6. Jurisdiction to commence this action is conferred by 15 U.S.C. §7701, et seq., 15 U.S.C. §1707(g)(1); RCW 19.86.080, 19.86.090, 19.86.160, RCW 19.190.030 and RCW 4.12.020-.025.
7. CAUSES OF ACTION
b. Plaintiff Gordon is the registrant of the internet domain "gordonworks.com".
c. Plaintiff Gordon d/b/a `gordonworks.com', is an interactive computer service as that term is defined in 15 TT.S.C. §7703(11), and RCW 19.190.010 (7)
d. Gordon provides or enables computer access by multiple users to a computer server that hosts the "gordonworks.com" domain name and further provides electronic snail accounts to individuals utilizing the `gordonworks.com' domain name for electronic messaging, including individuals residing within the Federal judicial district in which this case is brought.
e. Plaintiff Gordon is a user of the interactive computer service provided by `gordonworks.com', and maintains an electronic mail message account with `gordonworks.com under the address "email@example.com".
f. At all times relevant to this action, each of the Plaintiffs' status as Washington residents is and was public knowledge and available, upon request, from the Plaintiffs and other public sources.
g. The Defendants have initiated the transmission of numerous commercial email messages directed to and through Plaintiff Gordon's interactive computer service, and/or to and through Plaintiff’s domain `gordonworks.com', and/or further addressed to Plaintiff Gordon's email address firstname.lastname@example.org, as well as to other users of Gordon's interactive service.
7.1 First Cause of Action
7.1.1 Plaintiff hs received approximately 6,000 commercial electronic nail messages from defendants to its electronic mail server located in Benton and Franklin Counties, Washington, and/or to his email addresses served by `gordonworks.com' domain in violation of the CAN-SPAM Act of 2003, 15 U.S.C. §7705.
7.1.2 Plaintiff further alleges that he received numerous items of electronic mail from the defendants sent to his `gordonworks.com' domain name and servers, and to his email addresses served thereby, that. were responded to with specific requests not to receive future commercial electronic mail messages. Said conduct by the defendants violated 15 U.S.C. §7705(a)(4).
7.1.3 Plaintiff further alleges that the defendants sent at least one (1) separate item of electronic mail to the plaintiff to an address harvested from domain name registration and/or by other means of anonymous internet information harvesting. Said conduct was in violation of 15 U.S.C. §7705(b)(1)(A)(i), and (ii).
7.1.4 As a proximate result of said unlawful conduct by said defendants, plaintiff is entitled to damages for the actual monetary loss incurred or statutory damages in the amount of up to $100.00 in the case of violation of Section 5(a)(1) or up to $25.00 in the case of each violation of the other subsections of Section 5 in the form of statutory damages as set forth in 15 U.S.G. §7707(g)(1) and (3)(A).
7.1.5 Plaintiff furthermore seeks a preliminary and permanent injunction against the defendants for their current and future violations of the CAN-SPAM Act of 2003 as it and members of the general public will continue to incur damages as a result of the unlawful conduct of said defendants. The seeking of injunctive relief by the plaintiff is specifically authorized by 15 U.S.C. §7707(g)(1)(A).
7.1.6 Plaintiff furthermore seeks its attorney fees and costs against the defendants pursuant to 15 U.S.C. §7707(g)(4).
7.2 Second and Third causes of Action
7.2.1 It is a violation of RCW 19.190.020(1)(a)(b) and 19.190.030(1)(a)(b) to 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 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 contains false or misleading information in the subject line.
7.2.2 Pursuant to RCW 19.190.020(1)(a)(b), each email sent in this First Cause of Action is a separate and distinct violation of RCW 19.190, and pursuant to RCW 19.190.030 (1) (a)(b), (2), and (3) constitutes a separate and distinct violation of the Consumer Protection Act, RCW 19.86. Plaintiffs have been damaged as a result of Defendants' statutory violations as set forth herein, in an amount to be proven at trial.
7.3 Fourth Cause of Action
7.3.1 Defendants improperly possessed plaintiff's personal means of identification information (RCW 9.35.005(3), in their pursuit of unlawful activities (RCW 9.35.005)
7.3.2 Defendants further falsely used the plaintiff's means of identification to conduct business, for the defendants' own financial gain in violation of RCW 9.35.020.
7.3.3 Defendants solicited undesired mail to promote their products, by falsely claiming, without authorization from the plaintiff, that the plaintiff wanted to receive theirs and their clients' electronic mail in violation of RCW 9.35.030.
7.3.4 Defendants' acts violated RCW 9.35 et seq., which the legislature has found are matters vitally affecting the public interest (RCW 9.35.800) for the purpose of applying the Consumer Protection Act, chapter 19.86 RCW. A violation of RCW 9.35.020 is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the Consumer Protection Act, chapter 19.86 RCW.
Demand for jury. Plaintiff demands that this cause be tried to a jury.
PRAYER FOR RELIEF
That the Court adjudge and decree that defendant has engaged in the conduct complained of herein.
That the Court adjudge and decree that the conduct complained of herein constitutes violations of the Federal Can-Spam Act of 2003, 15 U.S.C. §7705, and that Plaintiff is entitled to all damages provided for thereunder, as may he proved at trial.;
That the Court adjudge and decree that the conduct complained of herein constitutes violations of the Washington Commercial Electronic Mail Act, RCW 19.190.020 et seq., and that Plaintiff is entitled to all damages provided for thereunder, as may be proved at trial, including but not limited to aggravated damages under 15 U.S.C. 47707(g)(3)(C) of up to three times the amount above for these violations committed by the defendants will fully and knowingly, and for defendants' unlawful activity which includes aggravated violations of section 7005(h);
That the Court adjudge and decree that the conduct complained of herein constitutes violations, of the Washington Consumer Protection Act, RCW 19.86 et seq., and that Plaintiff is entitled to all damages provided for thereunder, as may be proved at trial;
That the Court adjudge and decree that the conduct complained of herein further constitutes violations of RCW 9.35 et seq., and the Washington Consumer Protection Act, RCW 19.86 et seq., and that Plaintiff is entitled to all damages provided for thereunder, as may he proved at trial;
That the Court assess civil penalties, pursuant to 19.190.040(1) of five hundred dollars ($500) per violation against defendant for each and every one of the commercial electronic mail messages sent to plaintiff Gordon in violation of RCW 19.190.020.
That the Court assess civil penalties, pursuant to 19.190.040(1) one thousand dollars ($1,000) per violation against defendant for each and every one of the commercial electronic mail messages sent through plaintiff Gordon's interactive computer service in violation of RCW 19.190.020.
That the Court assess civil penalties in the way of treble damages pursuant to RCW 19.86.140, of two thousand dollars ($2,000) for each and every one of the violations of RCW 19.86 caused by the conduct complained of herein.
That the Court enter-judgment pursuant to RCW 19.86.140 providing that Plaintiff has been injured by the conduct complained of herein, and ordering that Plaintiff recover from the defendant the costs of this action, including reasonable attorney's fees
That the Court assess all allowable civil penalties, pursuant to RCW 9.35 against defendants for each and every violation of that statute.
That the Court order such other relief as it may deem just and proper to fully and effectively remedy the effects of, and prevent future instances of, the conduct complained of herein, or which may otherwise seem proper to the Court.
DATED this 8th day of February, 2006.
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