IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
an Illinois Limited Liability Company, and
DAVID LINHARDT, an individual
THE SPAMHAUS PROJECT,
a company limited by guarantee and
organized under the laws of England, aka
THE SPAMHAUS PROJECT LTD,
PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT AND ORDER FOR PERMANENT INJUNCTION
Plaintiffs, e360Insight, LLC and David Linhardt (collectively Plaintiffs), by and through their attorneys, Synergy Law Group, LLC, respectfully requests that this court enter a judgment and issue a permanent injunction against Defendant The Spamhaus Project, aka The Spamhaus Project Ltd., (Defendant), resulting from Defendant’s default on August 23, 2006. In support of this motion, Plaintiffs state:
1. On July 20, 2006 the Honorable Phillip Bronstein, Judge of the Circuit Court of Cook County, issued a Temporary Restraining Order against Defendant. Judge Bronstein also ordered that discovery be expedited, and Plaintiffs served written discovery on Defendant on this same day.
2. On July 21, 2006 Defendant filed an Answer in the Circuit Court and also removed the matter to this Court pursuant to 28 U.S.C. § 1441.
3. On July 24, 2006 Defendant removed the then existing references to Plaintiffs e360Insight LLC and David Linhardt from its website.
4. On August 17, 2006 counsel for Defendant, Evan Brown, of Hinshaw & Culbertson, LLP, informed Plaintiffs’ counsel that: 1) He and his firm were withdrawing from representing Defendant because Defendant was releasing the Hinshaw & Culbertson firm and, to his knowledge, Defendant did not intend to obtain new counsel; 2) Defendant was seeking to withdraw its Answer to the Amended Complaint filed in the Circuit Court before Defendant removed this matter to this Court; and 3) Defendant would not be providing responses to the discovery propounded by Plaintiffs.
5. On August 17, 18 and 19, 2006 Defendant placed new references to Plaintiffs, specifically “E360 Insight”; E360Insight: Ravinia Hosting Company LLC”; “E360 Insight / e360data.com”; “e360Insight:bargaindepot.net / bargainshoppecorp.com”; “Discount Accessories aka e360data.com”; “Northgate Internet Services aka e360data.com”; and “E360 Insight / e360data.com: home base” on the Spamhaus website in contravention of the Circuit Court’s TRO by Defendant’s listing of e360 on the following Spamhaus webpages:
6. On August 23, 2006 this matter was before the Court for status and for presentment of Plaintiffs’ Motions for Rules to Show Cause pertaining to Defendant’s violation of the Temporary Restraining Order, and Defendant’s failure to respond to Court Ordered discovery. Counsel for both parties appeared at this hearing.
7. At this hearing Defendant’s oral motion for leave to withdraw its answer to the complaint was granted. Defendant’s motion [docket entry Document 13] to withdraw the appearance of Evan Brown and Andrew Cripe as counsel for Defendant was also granted. Plaintiffs’ oral motion for entry of default against Defendant was also granted. Finally, the Court converted the then current Temporary Restraining Order to a Preliminary Injunction. (See docket entry Document 19.)
8. Plaintiff respectfully requests that judgment pursuant to Federal Rule of Civil Procedure 55 be entered against Defendant in the amount of $26,715,000.00 in damages and $40,695.55 in court costs and fees. The damages amount is supported by the facts contained in the accompanying affidavit of David Linhardt and also includes Plaintiffs’ request for punitive damages, which Plaintiffs respectfully submit should be an amount sufficient to punish Defendant for its past intentional and malicious conduct and deter Defendant from engaging in the same conduct in the future, $15,000,000.00. The fees and costs are supported by the facts contained in the accompanying affidavit of Bartly J. Loethen, counsel for plaintiffs.
9. Plaintiffs also respectfully request that the Court enter a Permanent Injunction requiring the following:
a. Defendant Spamhaus shall not ever take any action to cause email sent by Plaintiff e360 Insight, Plaintiff David Linhardt, or any affiliates, subsidiaries, or related companies owned or controlled by e360 Insight or Linhardt (collectively the “Plaintiff Parties”) to be blocked, delayed, altered, or interrupted in any way (including, without limitation, by listing Plaintiff Parties on Defendant’s website on the ROKSO list, within an SBL listing on Defendant’s website, using blacklisting technology in concert or conjunction with others, or taking any other action to cause any such interference) unless Spamhaus can demonstrate by clear and convincing evidence that Plaintiff Parties have violated CAN-SPAM or other relevant provisions of US law. Such clear and convincing evidence may only be shown after providing Plaintiff Parties an opportunity to review any alleged offending email, including a review of the email header and content (in its entirety), and providing Plaintiff Parties an opportunity to show the offending email was not sent in violation of US law to the satisfaction of a reasonable person. If such clear and convincing evidence is shown, then (and only then) may Spamhaus list the IP address (and only the IP address) from which the offending email was sent on its website. Spamhaus shall not list entire networks or ranges of IP addresses owned or operated by Plaintiffs simply because they are registered in the Plaintiff’s name or physical address without meeting the clear and convincing standard for the ip address in question.
b. Defendant Spamhaus shall also, within 5 business days of the date hereof, post on its website at both the main home page and at the ROKSO jump page, a message of 1 inch by 1 inch, the text of which is to be reasonably approved by Plaintiffs, and which, generally, indicates Plaintiffs were erroneously listed on the website as spammers, and that Plaintiffs are not spammers. Defendant Spamhaus shall leave such message on its site for a period of six months.
c. Defendant Spamhaus shall not contact (and shall not cause others to so contact) any customers or suppliers of the Plaintiff Parties in efforts to cause said customers or suppliers to cease doing business with Plaintiff Parties, nor shall Spamhaus contact (or cause others to so contact) customers or suppliers of Plaintiff Parties and allege or assert that Plaintiff Parties are “Internet Spammers” or other like term.
E360Insight, LLC. and David Linhardt
By: /s/ Joseph L. Kish
One of Their Attorneys
Bartly J. Loethen
Joseph L. Kish
Kristen M. Lehner
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261
CERTIFICATE OF SERVICE
I hereby certify that on August 30, 2006 I electronically filed the foregoing document with the Clerk of the United States District Court for the Northern Division of Illinois using the CM/ECF system which will send notification of such filing to the following:
Evan D. Brown [firstname.lastname@example.org]
Andrew B. Cripe [email@example.com]
Joseph L. Kish [firstname.lastname@example.org]
Kristen M. Lehner [email@example.com]
And I hereby certify that I have sent by Federal Express via International Priority the document to the following non CM/ECF participants: The Spamhaus Project, aka The Spamhaus Project Ltd. .
And I hereby certify that I have caused to be hand delivered the document to the following non CM/ECF participants: The Spamhaus Project, aka The Spamhaus Project Ltd.
________/s/ Kristen M. Lehner__________
Kristen M. Lehner