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.
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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
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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
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