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e360Insight Appellee Brief

Nos. 06-3779 and 06-4169
_________________________________________
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
_________________________________________
e360INSIGHT, LLC, an Illinois
Limited Liability Company, and
DAVID LINHARDT, an individual,
Plaintiffs – Appellees.
vs.
THE SPAMHAUS PROJECT, a
company limited by guarantee and
organized under the laws of England,
a/k/a THE SPAMHAUS PROJECT, LTD.,
Defendant – Appellant,
________________________________________
Appeal from the United States District Court
For the Northern District of Illinois
District Court No. 06 C 3958
The Honorable Judge Charles P. Kocoras, District Judge
_________________________________________
RESPONSE TO BRIEF OF DEFENDANT - APPELLANT,
e360INSIGHT, LLC AND DAVID LINHARDT
__________________________________________
Bartly J. Loethen
Joseph L. Kish
Synergy Law Group, LLC
730 W. Randolph Street Suite
600
Chicago, Illinois 60661
Telephone: 312-454-0015
Facsimile: 312-454-0261
__________________________________________
ORAL ARGUMENT REQUESTED
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No:
Short Caption:
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party
or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement
must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court,
whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required
information. The text of the statement must also be included in front of the table of contents of the party's main brief.
Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this
form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide
the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
Attorney's Signature: Date:
Attorney's Printed Name:
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No
Address:
Phone Number: Fax Number:
E-Mail Address:
rev. 11/01 AK
06-3779
e360 Insight, LLC et. al v. The Spamhaus Project
e360 Insight, LLC
David Linhardt
Synergy Law Group, LLC
12-11-06
Bartly J. Loethen
730 W. Randolph, 6th Floor
Chicago, IL 60661
312-454-0015 312-454-0261
bart@synergylawgroup.com
REFRESH
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No:
Short Caption:
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party
or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement
must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court,
whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required
information. The text of the statement must also be included in front of the table of contents of the party's main brief.
Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this
form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide
the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
Attorney's Signature: Date:
Attorney's Printed Name:
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No
Address:
Phone Number: Fax Number:
E-Mail Address:
rev. 11/01 AK
06-3779
e360 Insight, LLC et. al v. The Spamhaus Project
e360 Insight, LLC
David Linhardt
Synergy Law Group, LLC
12-11-06
Bartly J. Loethen
730 W. Randolph, 6th Floor
Chicago, IL 60661
312-454-0015 312-454-0261
bart@synergylawgroup.com
REFRESH
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................. i
TABLE OF AUTHORITIES .........................................................................................iii
STATEMENT OF CASE................................................................................................ 2
STATEMENT OF FACTS ............................................................................................. 5
SUMMARY OF ARGUMENT ..................................................................................... 10
STANDARD OF REVIEW........................................................................................... 12
ARGUMENT................................................................................................................ 12
I. SPAMHAUS WAIVED DEFENSES OF INSUFFICIENCY OF PROCESS
AND LACK OF PERSONAL JURISDICTION................................................ 13
II. SERVICE OF PROCESS ON SPAMHAUS WAS PROPER............................ 15
A. The Amended Complaint Was Served In Accordance with the Illinois
Code of Civil Procedure and the Hague Convention............................... 15
B. The District Court Properly Considered Service of Process on
Spamhaus Before Entering the Default Judgment and Permanent
Injunction.................................................................................................. 17
III. THE DISTRICT COURT PROPERLY EXERCISED PERSONAL
JURISDICTION OVER SPAMHAUS.............................................................. 18
A. e360’s Complaint Adequately Alleged Personal Jurisdiction................ 18
B. Spamhaus Waived Lack of Personal Jurisdiction as a Defense ............ 19
IV. THE INJUNCTIONS AGAINST SPAMHAUS ARE APPROPRIATE AND
CONSTITUIONAL............................................................................................ 21
A. The Injunctions Issued Against Spamhaus Are Appropriate................ 21
1. The District Court Properly Adopted the Temporary Restraining
Order as Its Preliminary Injunction.................................................... 21
i
2. The District Court Properly Entered the Permanent Injunctions
According to Federal Rule of Civil Procedure 65. ............................... 26
B. The Permanent Injunction Against Spamhaus is Constitutional ......... 29
1. The Activity Enjoined By The District Court Is Not Protected Speech
But Conduct .......................................................................................... 29
2. Spamhaus Does Not Engage in Protected Speech Because Its
Statements Involving e360 are False .................................................. 31
3. The Injunction Does Not Constitute Impermissible Compelled Speech
............................................................................................................... 32
4. The Injunction Is Not Impermissibly Broad ....................................... 33
V. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING
SPAMHAUS’ MOTION TO VACATE THE DEFAULT JUDGMENT............ 34
A. Rule 60(b)(1) Does Not Provide Relief for Spamhaus; There Is No
Excusable Neglect, Inadvertence, and/or Mistake Exists.................. 35
B. Rule 60(b)(4) Does Not Provide Relief To Spamhaus; The Judgment Is
Not Void.................................................................................................................... 37
C. Rule 60(b)(6) Also Provides No Relief to Spamhaus ............................... 39
CONCLUSION............................................................................................................. 41
CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) AND CIRCUIT
RULE 31(e)(1) CERTIFICATION .................................................................... 42
CERTIFICATE OF SERVICE .................................................................................... 43
ii
TABLE OF AUTHORITIES
Cases
American Hospital Association v. Harris, 625 F.2d 1328
(7th Cir. 1980).............................................................................................................. 22
Amoco v. Village of Gambell, 480 U.S. 531 (1987) .....................................................26
Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 402 (7th Cir. 1986) ......... 18, 34, 38
Banks v. Trainor, 525 F.2d 837, 841 (7th Cir. 1975), cert. denied,
424 U.S. 978, 47 L. Ed. 2d 748, 96 S. Ct. 1484 (1976)................................................21
Broadcast Music, Inc. v. M.T.S. Enterprises, Inc., 811 F.2d 278, 281
(5th Cir. 1987)........................................................................................................ 12, 13
EEOC v. Severn Trent Serv., Inc., 358 F.3d 438, 442 (7th Cir. 2004)........................ 26
Faheem-El v. Klincar, 841 F.2d 712, 716 (7th Cir. 1988) .......................................... 24
Gertz v. Robert Welch, Inc., 418 U.S. 323, 338 (1974) ............................................... 31
Giannakos v. M/V BRAVO TRADER, 762 F.2d 1295, 1298 (5th Cir. 1985)............. 13
Helene Curtis Industries v. Church & Dwight Co., 560 F.2d 1325, 1330
(7th Cir. 1977).............................................................................................................. 23
Hustler Magazine v. Falwell, 485 U.S. 46, 51 (1988)................................................. 31
Ideal Industries v. Gardner Bender, Inc., 612 F.2d 1018, 1022 (7th Cir. 1979),
cert. denied, 447 U.S. 924, 65 L. Ed. 2d 1116, 100 S. Ct. 3016 (1980) ...................... 22
Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461
(1938)........................................................................................................................... 20
Jones v. Jones, 217 F.2d 239, 242 ............................................................................... 39
Madsen v. Women's Health Ctr., 512 U.S. 753 (U.S. 1994).......................................33
Marcial Ucin, S.A. v SS Galicia, 723 F.2d 994, 996-97 (1st Cir. 1983).......................12
N.L.R.B. v. Electro-Voice, Inc., 83 F.3d 1559, 1567 (7th Cir. 1996) .................... 22, 24
New York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964) ................................. 26, 29
iii
O'Conner v. Board of Education, 645 F.2d 578, 580 (7th Cir.), cert. denied,
454 U.S. 1084, 70 L. Ed. 2d 619, 102 S. Ct. 641 (1981).............................................. 22
Reynolds v.. International Amateur Athletic Fed’n, 23 F.3d 1110, 1120
(6th Cir. 1994).............................................................................................................. 17
Rice v. Nova Biomedical Corp., 38 F.3d 909, 914 (7th Cir. 1994).............................. 17
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47
(U.S. 2006)....................................................................................................................30
Swaim v. Moltan Company, 73 F. 3d 711, 717 (7th Cir. 1996) ................................. 20
Trustees of Central Laborers’ Welfare Fund, v. Keith and Dennis Lowery,
924 F.2d 731, 732 (7th Cir. 1991)............................................................... 12, 35, 38, 39
Vilchis v. Miami Univ. of Ohio, 99 Fed. Appx. 743 (7th Cir. 2004) ........................... 16
Wesley-Jessen Div. of Schering Corp. v. Bausch & Lomb, Inc., 698 F.2d
862, 864 (7th Cir. 1983) ................................................................................... 19, 20, 22
White v. Ratcliffe, 285 Ill.App.3d 758, 765 ........................................................... 11, 14
Yakus v. United States, 321 U. S. 414, 444,64 S. Ct. 660, 677, 88 L. Ed.
834 (1994)........................................................................................................ 18, 20, 26
Statutes
28 U.S.C. § 1291............................................................................................................. 2
735 ILCS 5/2-209 (2007) ............................................................................................... 2
Controlling the Assault of Non-Solicited Pornography and
Marketings (CAN-SPAM) Act 2003, 15 U.S.C. §§ 7701-7713...................................... 5
Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters ("Hague Convention"),
Nov. 15, 1965, 20 U.S.T. 361, 658
U.N.T.S.16328……………………………………………………………….……….11, 15, 16
iv
Rules
Fed. R. App. P. 8 .................................................................................................... 28, 40
Fed.R.Civ.P. 12(h)(1) ............................................................................................. 11, 26
Fed. R. Civ. P. 60(b) .............................................................................................passim
Fed.R.Civ.P. 62 ............................................................................................................ 28
Fed.R.Civ.P. 65 ...................................................................................................... 26, 28
v
JURISDICTIONAL STATEMENT
Appellant’s jurisdictional statement is incorrect and should be stated to read as follows.
Plaintiffs-Appellees e360Insight, LLC (“e360”) and David Linhardt (“Mr. Linhardt”) filed their
lawsuit against Defendant-Appellant The Spamhaus Project, Ltd. (“Spamhaus”) on June 21, 2006 in
the Circuit Court of Cook County, Illinois County Department, Chancery Division (A. 5-20.) e360
and Mr. Linhardt learned of additional facts supporting their claims against Spamhaus and filed an
Amended Complaint on June 23, 2006. (Supplemental Appendix (“SA.”) 001-019.) It is from this
Amended Complaint that this appeal is properly taken although for purposes of this appeal, the
documents are the same.
Spamhaus removed this case to the United States District Court for the Northern District of
Illinois, Eastern Division, on July 21, 2006. (A. 1-4.) Spamhaus’ removal occurred after the Circuit
Court entered a temporary restraining order against Spamhaus, which proceeding was properly
noticed but in which Spamhaus failed to participate.
Spamhaus’ removal is based on diversity of citizenship. Mr. Linhardt is a citizen of the State
of Illinois. (A. 2.) e360 is Illinois limited liability company located in wheeling, Illinois. (A. 6.)
e360’s sole member is Maverick Direct Marketing Solutions, Inc., an Illinois corporation with its
principal place of business in Wheeling, Illinois.
On September 13, 2006 the District Court entered an order for default judgment against
Spamhaus. (A. 140-143.) On October 13, 2006 Spamhaus filed a notice of appeal for the entry of
default judgment. (A. 144.) On October 31, 2006
the District Court denied Spamhaus’ Motion to Vacate the Default Judgment and
for Leave to File a Memorandum in Support. (A. 158.) On November 28, 2006
Spamhaus filed a notice of appeal from the denial of its Motion to Vacate. (A. 194.)
This Court has jurisdiction under 28 U.S.C. §1291.
STATEMENT OF ISSUES
e360 and Mr. Linhardt respectfully submit that the issues as presented by
Spamhaus are unduly argumentative and in certain respects without record
support. e360 and Mr. Linhardt have attempted to recast the issues presented by
Spamhaus in this appeal in a neutral yet informative manner, which is concise
without being vague or too general.
1. Did the District Court erred by entering a default judgment against
Spamhaus based on the information provided to the District Court by the parties to
this appeal either because of improper service of process on Spamhaus or because
the District Court lacked personal jurisdiction over Spamhaus?
2. Is the permanent injunction entered by the District Court constituted an
impermissible prior restraint?
3. Did the District Court erred by denying Spamhaus’ Motion to Vacate the
Default Judgment given the circumstances leading up to and the reasons stated at
the time of the Motion’s presentment to the District Court?
STATEMENT OF CASE
e360 filed suit against Spamhaus on June 21, 2006 in the Circuit Court of Cook
County, alleging state law claims for tortious interference with contract, tortious
2
interference with prospective economic advantage, defamation per se, and
defamation per quod. (A. 12-20.) The Complaint was amended two days later to
include newly discovered acts being perpetrated by Spamhaus. (SA. 001-019.) The
Amended Complaint was served by special process server, which complied with the
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.
On June 20, 2006 the Circuit Court, by the Honorable Phillip Bronstein,
entered a temporary restraining order and ordered expedited discovery against
Spamhaus after conducting a properly noticed hearing at which Spamhaus failed to
appear. (SA. 408-411.) Spamhaus complied with the terms of the TRO requiring
that references to e360 and Mr. Linhardt be removed from the ROKSO list. On
July 21, 2006 Spamhaus complied with the language of the temporary restraining
order; removed the case to the United States District Court for the Northern District
of Illinois, Eastern Division (A. 1-4) and filed an Answer to the Complaint. (A. 24-33.)
The Hinshaw Culbertson law firm filed appearances for two of their attorneys to
represent Spamhaus.
Spamhaus failed to respond to the expedited discovery propounded by e360
and Mr. Linhardt when such discovery was due on August 20, 2006. In addition to
failing to comply with the Circuit court’s discovery order, Spamhaus also posted
new references to e360 and Mr. Linhardt in violation of the temporary restraining
order. e360 and Mr. Linhardt filed Motions for Rules to Show Cause why
Spamhaus should not be sanctioned or held in contempt for its failure to abide by
the Circuit Court’s prior orders. (ECF Docket Entry ## 11 and 12) At the August
3
23, 2006 hearing on these motions, Spamhaus’ counsel announced that he was
authorized by Spamhaus to do two things only that day: Withdraw Spamhaus’
Answer and then withdraw his appearance. (A. 159-166.) e360 and Mr. Linhardt’s
motions for rules to show cause were not heard. Instead, the District Court granted
Spamhaus’ Motion to Withdraw the Appearances of Counsel (A. 117) and Motion for
Leave to Withdraw its Answer to the Complaint. (Id.) The District Court also granted
e360’s Motion for Entry of Default (Id.) and converted the Circuit Court’s
temporary restraining order into a preliminary injunction. (Id.)
On September 13, 2006 on motion from e360 and Mr. Linhardt, the District
Court entered an order for default judgment against Spamhaus, which did not
appear despite being properly notified of the proceedings. (SA. 413.) Spamhaus
filed its Notice of Appeal on October 13, 2006, which was docketed by the United
States Court of Appeals for the Seventh Circuit as Case No. 06-3779. (A. 144.) On
October 17, 2006 this Court entered an initial briefing schedule for this appeal, which
was revised on November 3, 2006 pursuant to Circuit Rule 33.
On October 26, 2006 Spamhaus filed a Motion to Vacate Default Judgment
and For Leave to File a Memorandum in Support under Federal Rule of Civil
Procedure 60(b). (A. 150-154.) The District Court denied the Motion to Vacate on
October 31, 2006. (A. 158.) Spamhaus filed its second Notice of Appeal from the
denial of the Motion to Vacate on November 28, 2006 (A. 194.) which was docketed by
this Court as Case No. 06-4169. On December 5, 2006 this Court consolidated Case
Nos. 06-3779 and 06-4 169.
4
STATEMENT OF FACTS
e360 and Mr. Linhardt are legitimate internet marketers who are and were,
at all times relevant to this lawsuit, engaged in legitimate email marketing activity
and were not engaged in any activity that could be deemed to be "spamming." (SA.
001-019.) In fact, e360 gains permission from the recipient of its email marketing
messages before sending them. e360 has no interest in sending spam or messages to
potential customers who do not wish to receive its messages. (SA. 003-004.)
Moreover, they have complied at all times with all laws pertaining to the sending of
e-mail and internet-based advertisement, including CAN-SPAM. (Id.) There is
nothing in the record before this Court that suggests otherwise despite Spamhaus’
assertions and inferences to the contrary.
Spamhaus holds itself out to be a United Kingdom non-profit limited liability
company located in London, United Kingdom (A. 6.) Contrary to representations
made on its website, Spamhaus, in fact, does not rely solely on donations to fund its
operations, but charges for its services. (SA. 415-419.) Spamhaus is not a citizen of
Illinois, but e360 and Mr. Linhardt alleged in their Complaint, and sought by way of
the discovery to which Spamhaus never responded, information that would confirm
that Spamhaus conducts business in Illinois by providing services to Internet Service
Providers (“ISPs”) in the State of Illinois, including United Online, Inc. (see
www.untd.com) and others. (A. 006.) Despite the information contained in the
Declaration of Steve Linford (A. 190-92.), the allegations contained in paragraph 4 of
the Complaint are not refuted.
5
Spamhaus generates the Register of Known Spam Operations (“ROKSO”) list
and the Spamhaus Block List (“SBL”), identifying individuals or entities that have
been terminated from ISPs three or more times for engaging in spam offenses.
(A.113-116.) At the time Spamhaus placed e360 and Mr. Linhardt on the ROSKO list,
they were not terminated from any ISPs, let alone three of them. (A.170-178.) This
fact was noted to Spamhaus, who refused to remove e360 or Mr. Linhardt from the
ROKSO list. The SBL lists IP addresses that purportedly associate with known
spammers.
e360 filed suit against Spamhaus on June 21, 2006 in the Circuit Court of Cook
County, alleging state law claims for tortious interference with contract, tortious
interference with prospective economic advantage, defamation per se, and
defamation per quod. (A. 12-20.) The Complaint was amended two days later to
include newly discovered acts being perpetrated by Spamhaus. (SA. 001-019.) The
Amended Complaint was served by special process server employing procedures
that complied with the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents.
Initially, e360 and Mr. Linhardt filed a motion for preliminary injunction.
(SA. 022-076.) Due to the exigency of the circumstances facing e360 and Mr.
Linhardt, they then filed a motion for temporary restraining order. (SA. 197-387.)
The Circuit Court, by the Honorable Phillip Bronstein, entered a temporary
restraining order and ordered expedited discovery against Spamhaus after
conducting a properly noticed hearing at which Spamhaus failed to appear. (SA.
6
189.) Spamhaus was provided with a copy of the temporary restraining order
through the special process server as well as by FedEx express mail delivery and email.
(SA. 412.) Spamhaus complied with the temporary restraining order prior to
the July 24, 2006 before the deadline imposed by the Circuit Court.
On July 21, 2006, Spamhaus took the affirmative act of invoking the District
Court’s jurisdiction when it filed a Notice of Removal in the United States District
Court for the Northern District of Illinois, asserting diversity of citizenship and
damages in excess of $10 million was being sought. (A. 1-2.) The petition for removal
does not allege that personal jurisdiction is lacking over Spamhaus. Also on July 21,
2006 Spamhaus filed an Answer that purported to assert affirmative defenses for
lack of personal jurisdiction and improper service of process. (A. 24-33.)
Spamhaus never filed a Rule 12 motion to dismiss based on these affirmative
defenses.
Spamhaus never responded to the expedited discovery propounded by e360
and Mr. Linhardt. When the due date for the expedited discovery came, Spamhaus
failed to respond and also posted new references to e360 and Mr. Linhardt arguably
in violation of the temporary restraining order. e360 and Mr. Linhardt were thus
compelled to file motions with the District Court for Rules to Show Cause why
Spamhaus should not be sanctioned or held in contempt for its failure to abide by
the Circuit Court’s prior orders. (ECF Docket Entry ## 11, 15, and 17.) At the
August 23, 2006 hearing on these motions, e360 and Mr. Linhardt’s Motions for
Rules to Show Cause were not heard. The District Court’s rulings on these motions
7
were preempted by what even Spamhaus’ counsel viewed as an “unconventional
maneuver.” (A. 160.) Despite the fact that only one month prior, Spamhaus had
invoked the jurisdiction of the District Court, at this hearing Spamhaus’ counsel
announced that Spamhaus “wants to participate in the defense no further”, and
that he was authorized by Spamhaus to do two things only that day: Withdraw
Spamhaus’ Answer and withdraw his appearance. (A. 161.) Counsel for e360 and
Mr. Linhardt aptly noted it was Spamhaus that had removed the case to the
District Court, all the while failing to comply with the Circuit Courts’ orders. (Id.)
Counsel for e360 and Mr. Linhardt explained the continuing harm that was
occurring and further explained the scope of the Temporary Restraining Order that
the Circuit Court had previously entered, including the fact that it remained in
force at that time. (A. 162-163.)
Spamhaus’ counsel reiterated that Spamhaus “wants to do absolutely
nothing” and, in response to the District Court’s inquiry “do they want to lose?”
responded, in a most telling fashion: “They [Spamhaus] have been fully informed of
the fact that the default judgment is a real possibility. And they are aware of that
and are prepared to take that risk." (A. 163.)
The District Court allowed Spamhaus to withdraw its answer and further
allowed counsel leave to withdraw. (A. 164.) The District Court informed
Spamhaus’ counsel that he was doing so on the assumption that counsel had
informed Spamhaus it was a dead bang certainty that default is going to be entered
without any resistance to the lawsuit. (Id.) The District Court also informed
8
Spamhaus’ counsel that he was making his rulings on the condition that he was
going to reinstate, as a preliminary injunctive relief matter, the language of the
TRO that was entered in the Circuit Court. (Id.) The District Court made clear that
it was finding Spamhaus in default on this date, but not entering any judgment
against Spamhaus at that time. (A. 165.) Before relieving Spamhaus’ counsel from
any further legal obligation with respect to the case, the District Court required
Spamhaus’ counsel to inform Spamhaus what happened at the hearing, and that
the first step has been taken toward an entry of a judgment against Spamhaus as a
result of its default. (Id.)
As was contemplated during the August 23, 2006 hearing (A. 164-165.), e360
and Mr. Linhardt filed a motion for default judgment on August 30, 2006. (A. 118-
138.) This motion was supported by affidavits from Mr. Linhardt and Bartly
Loethen, one of e360 and Mr. Linhardt’s attorneys. A hearing was held on
September 12, 2006 and the matter taken under advisement. (A. 139.) On
September 13, 2006 the District Court entered an order for default judgment
against Spamhaus. (A. 140-143.) Spamhaus failed to appear despite being
properly notified of the proceedings. (A. 413.) On October 13, 2006 Spamhaus filed
its Notice of Appeal from the default judgment (which was then docketed by the
United States Court of Appeals for the Seventh Circuit as Case No. 06-3779.) (A.
144.)
On October 26, 2006, Spamhaus filed a Motion to Vacate Default Judgment
and For Leave to File a Memorandum in Support under Federal Rule of Civil
9
Procedure 60(b). Spamhaus’ counsel argued without success that Spamhaus was
receiving conflicting information regarding its response to the Complaint. (A. 177-
178). The District Court noted that Spamhaus’ actions regarding its withdraw of
counsel were intentional and consciously made, precluding any reliance on Federal
Rule of Civil Procedure 60(b)(1). (A. 174-184.) The District Court also was not
persuaded by the non-specific arguments that, despite Spamhaus’ overt act of
removing the case to District Court it lacked jurisdiction over Spamhaus or that
service of process was improper. (Id.) The District Court found that Spamhaus’
failure to participate in litigation and present its jurisdictional arguments prevented
those issues from being “crystallized by way of counter-affidavits or some other such
thing,” and thus “[t]here was not anything about this case that at least suggested
itself to me that I lacked personal jurisdiction, either over the person of the
defendant or the subject matter of the case.” (Id.) The District Court denied this
Motion to Vacate on October 31, 2006. (A. 158.)1 Spamhaus filed its second Notice of
Appeal from the denial of the Motion to Vacate (but not the motion for a stay of
enforcement of judgment or motion to quash the citation to discover assets) on
November 28, 2006 (which was docketed by this Court as Case No. 06-4169.) (A. 194)
On December 5, 2006, this Court consolidated Case Nos. 06-3779 and 06-4 169.
SUMMARY OF ARGUMENT
The District Court did not abuse its discretion by entering the default
judgment against Spamhaus for any of the reasons asserted in this appeal. Service
1 The district court also denied Spamhaus’ motion for a stay of enforcement of judgment
pending appeal and motion to quash e360 and Mr. Linhardt citation to discover Spamhaus’
assets, neither of which are subject of Spamhaus’ appeal.
10
of process of the amended Complaint was effective on Spamhaus on July 4, 2006
according to the requirements set out in the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents. White v. Ratcliffe, 285 Ill.App.3d
758, 765 (2d Dist. 1996).
The District Court also had personal jurisdiction over Spamhaus at the time
it entered the default judgment against it. Spamhaus voluntarily appeared and filed
an Answer in the District Court case after removing this case from the Circuit
Court of Cook County. Spamhaus then withdrew its Answer and took no further
action in this case, even though it was informed of all of the proceedings against it,
including the motion for the entry of the default judgment, which included a
proposed judgment, and the entry of the judgment itself. Spamhaus never
challenged personal jurisdiction through a motion to dismiss nor did it raise this
defense at the time it withdrew its Answer, even though the district court warned
Spamhaus’ counsel that a default would ensue given Spamhaus’ withdrawal.
Sufficiency of process and lack of personal jurisdiction were not raised by
Spamhaus until several months later when it filed a motion to vacate the default
judgment pursuant to Fed. R. Civ. P. 60(b). The District Court did not abuse its
discretion in denying this motion, which was based on sub-sections 1, 4 and 6 for
relief. The District Court appropriately rejected the argument made by Spamhaus
under subsection 1 that excusable neglect or mistake occurred when in fact
Spamhaus’ intentional withdrawal of its answer was the reason for the default
judgment. The District Court was also well within its discretion when it determined
11
that the judgment was not void pursuant to subsection 4 for any of the reasons
asserted by Spamhaus. The District Court was similarly within its discretion when
it rejected Spamhaus arguments under subsection 6 because the Amended
Complaint stated viable claims against Spamhaus and e360 and Mr. Linhardt
sufficiently established damages.
The District Court also did not abuse its discretion when it entered a
permanent injunction against Spamhaus. The injunction violates no first
amendment or other constitutional principals because it does not prohibit protected
speech, is not a prior restraint overbroad.
STANDARD OF REVIEW
An appellate court reviews a District Court’s entry of a default judgment and
a District Court 's decision on a Rule 60(b) motion to vacate a default judgment for
an abuse of discretion. Homer v. Jones-Bey, 415 F.3d 748, 753 (7th Cir. 2005);
Robinson Eng’g Co. Pension Plan & Trust v. George, 223 F.3d 445, 448 (7th Cir.
2000). Constitutional issues are reviewed de novo. United States v. Wilson, 154 F.3d
658, 662 (7th Cir. 1998); Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630, 633 (7th
Cir. 1990).
ARGUMENT
Despite the Quixotic notions on which Spamhaus believes this appeal is
warranted, this case involves nothing more then Spamhaus’ interference with
e360’s legitimate business operations and Spamhaus’ disdain for the United States
courts that required Spamhaus to do more than ignore this case. Spamhaus now,
12
ironically, criticizes the District Court for its actions in response to Spamhaus
machinations designed to avoid its prosecution, by asking this Court to remand the
case for additional proceedings - - proceedings to which Spamhaus refused to avail
itself originally and which will ultimately result in the same outcome for Spamhaus,
a default judgment and permanent injunction. This appeal, and the relief it seeks,
are merely the latest in a series of steps Spamhaus is taking to avoid having to
compensate e360 and Mr. Linhardt for the devastating wrongs Spamhaus has
perpetrated on them.
I. SPAMHAUS FORFEITED THROUGH CONDUCT ITS DEFENSES OF
INSUFFICIENCY OF PROCESS AND LACK OF PERSONAL
JURISDICTION
Objections to personal jurisdiction or to service of process must be raised in a
timely fashion, i.e., as a party's first pleading in the case, or they are waived.
Broadcast Music, Inc. v. M.T.S. Enterprises, Inc., 811 F.2d 278, 281 (5th Cir. 1987);
Fed. R. Civ. P. 12(h)(1); Giannakos v. M/V BRAVO TRADER, 762 F.2d 1295, 1298
(5th Cir. 1985). “That defense, like the other privileged defenses referred to in Rule
12(h)(1), may be waived by ‘formal submission in a cause, or by submission though
conduct.’” Id. “A party need not actually file an answer or motion before waiver is
found.” Id.; Marcial Ucin, S.A. v SS Galicia, 723 F.2d 994, 996-97 (1st Cir. 1983);
Broadcast Music, Inc. v. M.T.S. Enterprises, Inc., 811 F.2d 278, 281 (5th Cir. 1987)
(conduct of counsel may rise to level of voluntary appearance resulting in waiver of
defense of insufficiency of service). Spamhaus’ assertion that it was reserving its
jurisdiction defenses is not a complete shield from liability. Continental Bank v.
13
Meyer, 10 F.3d 1293 (7th Cir. 1992) (citing Burton v. Northern Dutchess Hosp., 106
F.R.D. 477, 481 (S.D.N.Y. 1985) for the proposition that “asserting jurisdictional
defect in answer does ‘not preserve the defense in perpetuity’”). In the instant case
it was Spamhaus who invoked the jurisdiction of the District Court in this matter,
appearing through counsel and initially filing and later withdrawing its Answer to
the Complaint, thus subjecting itself voluntarily to the jurisdiction of the District
Court.
Spamhaus never filed a motion to dismiss for either insufficiency of process
or lack of personal jurisdiction in the Circuit Court. Although receiving service of
process of the Amended Complaint, receiving notice of the Motion for the temporary
restraining order and receiving the order for the temporary restraining order (S.A.
412.), all through proper service of process (SA.021.), Spamhaus stood idly by, never
once raising either lack of service of process or personal jurisdiction as defenses
throughout the Circuit Court proceedings. Instead, Spamhaus momentarily
complied with the TRO but refused to respond to discovery, removed the case to the
District Court and answered, but did not move to dismiss, the complaint. Spamhaus
then voluntarily, and knowingly, withdrew its Answer, which it knew was the only
Spamhaus pleading even addressing these defenses through a “reservation” of
objections to personal jurisdiction and to service of process styled as affirmative
defenses. By doing so, Spamhaus effectively - - and knowingly - - forfeited these
defenses. Spamhaus thus submitted itself to the District Court’s jurisdiction.
14
II. SERVICE OF PROCESS ON SPAMHAUS WAS PROPER
A. The Amended Complaint Was Served In Accordance with the
Illinois Code of Civil Procedure and the Hague Convention
Spamhaus concludes, without providing any analysis why, service of process
of the Amended Complaint was ineffective. In fact, e360 and Mr. Linhardt’s service
of process was in compliance with the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents as well as the Illinois Code of Civil
Procedure.
The original Complaint was never served because at about the time it was
filed, e360 and Mr. Linhardt learned of new wrongs being perpetrated by
Spamhaus. Thus, on June 23, 2006 an Amended Complaint was filed with the
Circuit Court of Cook County. (SA. 001-019.)
The Amended Complaint was served personally on Spamhaus through a
process server, Mr. David Llewelyn Morgan. Mr. Morgan was appointed as a special
process server by the Circuit Court on July 5, 2006. (SA. 020.) As confirmed by Mr.
Morgan’s affidavit (SA. 021.), Spamhaus was served on July 4, 2006 by Mr. Morgan
personally handing to and leaving with Tony Overington a true copy of the
Summons and First Amended Complaint of W 1 Office. (Id.) Tony Overington
represented himself to Mr. Morgan to be authorized to accept service of documents
on behalf of The Spamhaus Project. (Id.) Tony Overington was served at
Communications House, 26 York Street, London, W1U 6PZ, England, the
Registered Office of The Spamhaus Project. (Id.) This is the same address listed on
Spamhaus’ website as the “registered office address” and “address for documents.”
15
The manner by which Spamhaus was served with the Amended Complaint
complied in all respects with the requirements of the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents. This is made clear in
White v. Ratcliffe, 285 Ill.App.3d 758, 765 (2d Dist. 1996) (rejecting argument that
the Hague Convention does not allow personal service by an independent process
server) The court in White recognized that “[a]lthough the Central Authority is
always to be made available as a means to effectuate service, its use is not
compulsory.” e360 and Mr. Linhardt use of an independent special process server
was appropriate on two distinct grounds under the Hague Convention. First, the
use of an independent special process server complies with the internal laws of
England. White v. Ratcliffe, 285 Ill.App.3d 758, 766 (recognizing that: “Article 19
expressly permits service of process by any method of service allowed by ‘the
internal law of the contracting State” and that English law specifically permits the
use of an independent process server to properly effectuate service). Secondly,
Article 10(c) of the Hague Convention allows use of an independent process server.
Article 10(c) provides that “the freedom of any person interested in judicial
proceedings to effect service of judicial documents directly through the judicial
officers, officials or other competent persons of the State of destination.”
Thus, even if Spamhaus had moved the District Court for dismissal of the
Amended Complaint based on insufficient service of process, there is no doubt that
the District Court would have appropriately denied the motion. Equally, if not more
importantly, there was nothing before the District Court to suggest that service of
16
process was insufficient in any way. Thus, the District Court did not abuse its
discretion by concluding that service of process was sufficient.
B. The District Court Properly Considered Service of Process on
Spamhaus Before Entering the Default Judgment and Permanent
Injunction
Spamhaus forfeited its right to challenge service of process when it submitted
to the District Court’s jurisdiction without challenging service of process. Although
Spamhaus noted in its Notice of Removal that “service has not been perfected
against Spamhaus,” it never made any motion for a determination of this baseless
assertion at the hearing on August 23, 2006 or at any other time. Spamhaus could
not be successful on such a motion because the Amended Complaint was properly
served on July 4, 2006. At the August 23, 2006 hearing before the District Court ,
when Spamhaus withdrew its answer and waived any further defense based on
sufficiency of process, Spamhaus had the forum and opportunity to challenge
service of process before withdrawing its answer, but affirmatively chose not to do
so. After Spamhaus abandoned the proceedings, all arguments asserting improper
service of process disappeared.
Under these circumstances, it is entirely unclear what Spamhaus believes is
further required of the District Court before entering a default judgment or
permanent injunction. The District Court did not abuse its discretion.
17
III. THE DISTRICT COURT PROPERLY EXERCISED PERSONAL
JURISDICTION OVER SPAMHAUS
A. e360’s Complaint Adequately Alleged Personal Jurisdiction
A federal district court sitting in diversity looks to the long-arm statute of the
state in which it is sitting to determine whether it has personal jurisdiction over the
defendants. E.g., Vilchis v. Miami Univ. of Ohio, 99 Fed. Appx. 743 (7th Cir. 2004).
In Illinois, the statute governing personal jurisdiction states, in pertinent part, as
follows:
§ 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 from the doing of such acts:
(1) The transaction of any business within this State;
(2) The commission of a tortious act within this State; …
Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 402 (7th Cir. 1986): 735 ILCS 5/2-
209.
e360’s Complaint and Amended Complaint adequately alleges that Illinois
courts could properly exercise personal jurisdiction over Spamhaus. Paragraph 4 of
the Amended Complaint states, in part, that “Spamhaus does business in Illinois
by, among other things, marketing its services to companies, and specifically
internet service providers, located in Illinois." (SA. 002.) This allegation, in and of
itself, provided a sufficient bases for the District Court to conclude that it could
exercise personal jurisdiction over Spamhaus. This assertion was never challenged
by Spamhaus at anytime while this matter was before the Circuit Court or while
18
Spamhaus appeared in this matter before the District Court. Spamhaus had ample
opportunity to file pleadings with the District Court incident to it initial removal.
In failing to do so, Spamhaus waived any right to assert this defense now. See
Swaim v. Moltan Company, 73 F. 3d 711, 717 (7th Cir. 1996) (explaining the
concepts of forfeiture and waiver under Rules 12 and 60(b)).
e360 and Mr. Linhardt also alleged facts to support a finding that Spamhaus
committed tortious conduct within the state. Spamhaus consciously and
intentionally targeted e360 and Mr. Linhardt, both residents of Illinois. The
Supreme Court has allowed the exercise of jurisdiction over a defendant whose only
"contact" with the forum state is the "purposeful direction" of a foreign act having
effect in the forum state. See, e.g., Calder v. Jones, 465 U.S. 783, 789, 104 S. Ct.
1482, 1487, 79 L. Ed. 2d 804 (1984). Accordingly, the District Court properly
exercised personal jurisdiction over Spamhaus.
B. Spamhaus Waived Lack of Personal Jurisdiction as a Defense
Spamhaus’ appeal is erroneously premised on the notion that it can ignore
the events leading up to its filing of the Rule 60(b) motion because the District
Court did not have personal jurisdiction over it and, therefore, could not impose a
default judgment or a permanent injunction on Spamhaus. It cannot. As noted in
Swaim, "the failure to challenge personal jurisdiction in a responsive pleading
amounts to a forfeiture of that claim”. Swaim v. Moltan Company, 73 F. 3d at 717,
citing Rice v. Nova Biomedical Corp., 38 F.3d 909, 914 (7th Cir. 1994). Swaim
acknowledges that that a defaulting party is generally treated differently and does
19
not forfeit its jurisdictional challenge. Id., citing Reynolds v.. International
Amateur Athletic Fed’n, 23 F.3d 1110, 1120 (6th Cir. 1994). This different
treatment, however, is premised on a defaulting party failing to appear or filing an
answer. Id. Here, Spamhaus was the party invoking the jurisdiction of the District
Court, it appeared through counsel, answered the Amended Complaint, and later
chose to withdraw its Answer despite the District Court's warnings that a default
judgment would be entered against it. Under these circumstances, Spamhaus is not
the non-appearing defendant who failed to file an answer who should then be
afforded the opportunity to challenge personal jurisdiction, notwithstanding that it
was not previously raised.
Spamhaus essentially confuses the concepts of forfeiture with a waiver.
Forfeiture is the failure to make a timely assertion of a right before a tribunal
competent to determine such right. Swaim v. Moltan Company, 73 F. 3d at 718,
note 4, citing Yakus v. United States, 321 U. S. 414, 444,64 S. Ct. 660, 677, 88 L.
Ed. 834 (1994). Waiver, by contrast, is the "intentional relinquishment or
abandonment of a known right." Swaim v. Moltan Company, 73 F. 3d at 718, note
4, citing Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461
(1938).
While the ability to assert personal jurisdiction is merely forfeited if not
challenged by a timely motion to dismiss under Rule 12 or an amended or
supplemental pleading under Rule 15, it can be asserted again in a Rule 60(b)
motion, Spamhaus did far more than merely forfeit its ability to assert lack of
20
personal jurisdiction. Spamhaus, through its affirmative conduct of first appearing
and answering the Complaint, then withdrawing that answer, waived any further
right to assert lack of personal jurisdiction as a defense in this case. The District
Court aptly noted that Spamhaus does not get two bites at the same apple and that
it would be unfair to e360 and Mr. Linhardt if it did. (A. 183.) Given Spamhaus’
conduct throughout the course of this litigation, the District Court was well within
its discretion to find that it had personal jurisdiction over Spamhaus.
IV. THE INJUNCTION AGAINST SPAMHAUS IS APPROPRIATE AND
CONSTITUIONAL
A. The Injunction Issued Against Spamhaus Is Appropriate
1. The District Court Properly Adopted the Temporary Restraining
Order as Its Preliminary Injunction
Spamhaus does not contest the validity of the Temporary Retraining Order
issued by the Circuit Court and even complied with it for a brief period of time. The
Circuit Court properly considered all four factors of the traditional test for
injunctive relief. (S.A. 388-407) It found in granting the temporary restraining
order:
a) Plaintiffs have shown that they have a clearly ascertainable
right in need of protection that is, the continuation of
e360Insight as a going concern;
b) Plaintiffs have shown that there is a fair question that
Plaintiffs will succeed on the merits in that there appears to
be an issue as to whether Defendant, The Spamhaus Project,
aka The Spamhaus Project Ltd., properly included
e360Insight and Mr. Linhardt on the ROKSO list;
21
c) Plaintiffs have shown that they will suffer irreparable harm
if an injunction does not issue, namely that e360Insight will
cease operating; and
d) Plaintiffs have shown that they have no adequate remedy at
law or in equity, because damages will not compensate for
e360Insight, LLC or Mr. Linhardt’s loss of good will or
damage to reputations, nor re-establish e360Insight, LLC as
a going concern.
The District Court was well within its discretion to adopt the TRO as its
preliminary injunction. “Decisions to grant or deny preliminary injunctive relief are
addressed to the sound discretion of the District Court, and appellate review of such
a decision is limited.” Wesley-Jessen Div. of Schering Corp. v. Bausch & Lomb, Inc.,
698 F.2d 862, 864 (7th Cir. 1983); American Hospital Association v. Harris, 625
F.2d 1328, 1330 (7th Cir. 1980); Ideal Industries v. Gardner Bender, Inc., 612 F.2d
1018, 1022 (7th Cir. 1979), cert. denied, 447 U.S. 924, 65 L. Ed. 2d 1116, 100 S. Ct.
3016 (1980). The court's discretion is guided by consideration of four factors: (1)
whether the plaintiff will have an adequate remedy at law or will be irreparably
harmed if the injunction does not enter; (2) whether the threatened injury to the
plaintiff outweighs the threatened harm the injunction may inflict on the
defendant; (3) whether the plaintiff has at least a reasonable likelihood of success
on the merits; and, (4) whether the granting of a preliminary injunction will
disserve the public interest. Wesley-Jessen Div. of Schering Corp. v. Bausch &
Lomb, Inc., 698 F.2d 862, 864 (7th Cir. 1983); O'Conner v. Board of Education, 645
F.2d 578, 580 (7th Cir.), cert. denied, 454 U.S. 1084, 70 L. Ed. 2d 619, 102 S. Ct. 641
(1981). These factors are essentially the same as those considered by the Circuit
22
Court, which led the Circuit to conclude that the temporary relief e360 and Mr.
Linhardt sought was appropriate.
While the District Court's judgment must be exercised within this
framework, this court has said on prior occasions that it will not substitute its
judgment for that of the District Court unless it is convinced that the court abused
its discretion. Wesley-Jessen Div. of Schering Corp. v. Bausch & Lomb, Inc., 698
F.2d 862, 864 (7th Cir. 1983); See Helene Curtis Industries v. Church & Dwight Co.,
560 F.2d 1325, 1330 (7th Cir. 1977), cert. denied, 434 U.S. 1070, 55 L. Ed. 2d 772,
98 S. Ct. 1252 (1978). “Moreover, if the District Court decides that a preliminary
injunction is appropriate, it has considerable discretion in fashioning suitable
temporary relief.” Wesley-Jessen Div. of Schering Corp. v. Bausch & Lomb, Inc., 698
F.2d 862, 864 (7th Cir. 1983); Banks v. Trainor, 525 F.2d 837, 841 (7th Cir. 1975),
cert. denied, 424 U.S. 978, 47 L. Ed. 2d 748, 96 S. Ct. 1484 (1976).
Fed. R. Civ. P. 65(b) establishes the procedure whereby the party against
whom a temporary restraining order has issued can move to dissolve or modify the
injunction, upon short notice to the party who obtained the order. Spamhaus never
did this. Indeed, Spamhaus’ counsel raised no objection whatsoever at the August
23, 2006 hearing in which the District Court announced its attention to convert the
TRO into a preliminary injunction. Because the District Court was informed of the
existence of the TRO, and was further informed by Spamhaus’ counsel that
Spamhaus did not intend to participate in a defense in any fashion, the District
Court was well within its discretion to adopt the Circuit Court’s TRO as the District
23
Court’s preliminary injunction in order to protect e360 and Mr. Linhardt from the
continuing harm that Spamhaus was perpetrating on them.
Spamhaus incorrectly asserts that “[w]hen the district court made the
preliminary injunction determination, it had no evidence before it about any
irreparably injury, inadequate remedies at law, the balance of hardships, or public
interest considerations.” (Appellant’s Brief at 38-39). To the contrary, the evidence
the District Court had before it regarding the continuing harm to e360 and Mr.
Linhardt as well as Spamhaus counsel’s representation that Spamhaus had chosen
to abandon any and all defenses to the lawsuit left the District Court with but one
choice - - to continue the protection afforded to e360 and Mr. Linhardt by the Circuit
Court’s TRO. There was nothing presented to the District Court that mitigated the
necessity of this protection and, indeed, the only abuse of discretion that could have
resulted under these circumstances is if the District Court had not adopted the
TRO.
A court must consider four traditional criteria in deciding whether to grant
injunctive relief: (1) whether the plaintiff has a reasonable likelihood of success on
the merits; (2) whether the plaintiff will have an adequate remedy at law or will be
irreparably harmed if the injunction does not issue; (3) whether the threatened
injury to the plaintiff outweighs the threatened harm the injunction may inflict on
the defendant; and (4) whether the granting of the injunction will harm the public
interest. N.L.R.B. v. Electro-Voice, Inc., 83 F.3d 1559, 1567 (7th Cir. 1996); Faheem-
24
El v. Klincar, 841 F.2d 712, 716 (7th Cir. 1988). The District Court had all of the
information necessary to afford e360 and Mr. Linhardt preliminary injunctive relief.
The District Court had before it a copy of the TRO and affidavit of Mr.
Linhardt that were filed as part of the motions being considered at the August 23,
2006 hearing. (See ECF docket entry ## 11, 15 and 17.) Those motions as well as
the TRO, affidavit and other information, none of which was countered or object to
by Spamhaus, demonstrated to the District Court the propriety of it entering the
preliminary injunction. Sufficient evidence existed before the District Court to
support that e360 did not have an adequate remedy at law and would suffer
irreparable harm if the preliminary injunction was not entered; that the threatened
injury to the e360 (going out of business/ blocking e360’s ability to send e-mails to
anyone from e360’s internet lines outweighed the threatened harm the injunction
may inflict on the Spamhaus (a few mouse clicks/key strokes to remove e360 from
the ROSKO list); that e360 had a reasonable likelihood of success on the merits, in
light of the evidence presented to the Circuit Court and bolstered by Spamhaus’
counsel withdrawing its appearance and Spamhaus withdrawing its answer; and
that the preliminary injunction would not disserve the public interest because 1)
Spamhaus was not complying with the TRO, and compliance with judicial orders is
in the public interest; 2) Spamhaus did not present any evidence to support finding
that e360 and Mr. Linhardt were conducting any illegal activity and accordingly,
had no public interest in listing a legitimate company on its ROSKO list. These
points were reiterated to some degree at the August 23, 2006 hearing while
25
Spamhaus’ counsel stood idly by. (A. 162-163.) The District Court did not abuse its
discretion in issuing a preliminary injunction.
2. The District Court Properly Entered the Permanent Injunction
According to Federal Rule of Civil Procedure 65.
When seeking a permanent injunction, the first of the four traditional factors
set out above is slightly modified because the issue now is not whether the plaintiff
has demonstrated a reasonable likelihood of success on the merits, but whether he
has in fact succeeded on the merits. See Amoco v. Village of Gambell, 480 U.S. 531,
94 L. Ed. 2d 542, 107 S. Ct. 1396, 1404, n.12 (1987). Here, there is no doubt that
e360 and Mr. Linhardt succeeded on the merits of this case as a result of Spamhaus
first appearing and defending this case, then withdrawing its attorneys’
appearances, withdrawing its answer and abandoning its defense of this case until
after judgment was entered against it.
The permanent injunction comported with the specificity requirement set
forth by Rule 65(d), which requires the order to set forth (1) the reasons for the
issuance of the injunction; (2) the specific terms of the injunction; and (3) the terms
must be described in reasonable detail. As Spamhaus acknowledges on page 40 of
its brief, “the explanation can be oral or written and the absence of an explanation
can be forgiven if the justification is clear from the record.” See EEOC v. Severn
Trent Serv., Inc., 358 F.3d 438, 442 (7th Cir. 2004).
The permanent injunction adequately sets forth the reasons for its issuance.
The District Court found that Spamhaus has wrongfully placed e360 and Mr.
26
Linhardt on its black list of companies who have sent spam e-mail; tortiously
interfered with e360 and Mr. Linhardt’s contracts with its suppliers and customers;
tortiously interfered with e360 and Mr. Linhardt’s prospective economic advantage
by blocking e-mail e360 and Mr. Linhardt attempted to send; and defamed e360 and
Mr. Linhardt by publishing false statements about plaintiffs on its website. (A. 140.)
The permanent injunction also sets forth five specific terms for the
injunction, all of which are sufficiently detailed assure Spamhaus’ compliance.
a) Spamhaus shall not take any action to cause email sent by
Plaintiffs or their affiliates, subsidiaries, or related
companies owned or controlled by Plaintiffs to be blocked,
delayed, altered, or interrupted in any way (including,
without limitation, by listing Plaintiffs on Spamhaus’
ROKSO list, within an SBL listing on Spamhaus’ 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 Plaintiffs have violated relevant
United States law. Such clear and convincing evidence may
only be shown after providing Plaintiffs with an opportunity
to review any alleged offending email, including a review of
the email header and content (in its entirety), and providing
Plaintiffs with an opportunity to show the offending email
was not sent in violation of United States law to the
satisfaction of a reasonable person. If such clear and
convincing evidence is shown, then and only then may
Spamhaus list the Internet Protocol (IP) address, and only
the IP address, from which the offending email was sent on
its website.
b) Spamhaus shall not list entire networks or ranges of IP
addresses owned or operated by Plaintiffs simply because
they are registered in the Plaintiffs’ names or physical
addresses without meeting the clear and convincing standard
for the IP address in question.
c) Spamhaus shall post, within five business days of the date of
this order, on its website at both the main home page and at
27
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 that 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.
d) Spamhaus shall not contact or cause others to contact any
customers or suppliers of the Plaintiffs in efforts to cause
said customers or suppliers to cease doing business with
Plaintiffs.
e) Spamhaus shall not contact or cause others to contact any
customers or suppliers of Plaintiffs and allege or assert that
Plaintiffs are spammers or other like term.
Despite the lengths to which the District Court went to fashion an injunction
that is, in all respects compliant with Rule 65, Spamhaus now quibbles with certain
immaterial aspects of the terms of the injunction.
Spamhaus should have sought any relief concerning the injunction in the
District Court because the District Court is the proper venue to redress such
concerns. An application for an order staying, suspending, modifying, restoring, or
granting an injunction during the pendency of an appeal must ordinarily be made in
the first instance to the district court. Fed. R. App. P. 8(a)(1)(C). This rule applies
even when a notice of appeal has been filed or the appeal has been docketed in the
court of appeals. Because of its familiarity with the case, a district court can best
determine whether the stay or modification should be granted and, if granted,
determine the amount of any bond necessary to protect the rights of the party who
prevailed. This relief may be granted pending an appeal on such terms as to bond or
otherwise as the trial court considers proper for the protection of the rights of the
adverse party. Fed.R.Civ.P. 62(c). Thus, any issues Spamhaus has regarding the
28
language of the permanent injunction should have been resolved before the District
Court.
B. The Permanent Injunction Against Spamhaus is Constitutional
1. The Activity Enjoined By The District Court Is Not Protected
Speech But Conduct
Spamhaus’ entire first amendment argument is based on the erroneous
proposition that its tortious activity is speech. It is not. The “speech” Spamhaus
argues is protected involves Spamhaus placing e360 and Mr. Linhardt on the
ROKSO and SBL automated lists that Spamhaus generates and maintains
according to certain rules it establishes for inclusion on the list. (SA. 115.)
Placement on the ROKSO list is based on objective, verifiable criteria, the primary
one being that only persons or entities that have been removed from three ISPs.
Spamhaus also has objective criteria for removing a listed individual or entity from
its lists. Spamhaus makes these objective criteria very clear on its own website. (Id.)
Placement on both the SBL list and the ROKSO causes the listed party to be
unable to send email to ISPs using the Spamhaus lists and this is facilitated
through an automated function at Spamhaus which consistently updates the
blocking technology sold by Spamhaus to the ISPs. Both the ROKSO list and the
SBL list are sold by Spamhaus to ISPs and others (SA. 415-419.), who buy it not
because they are interested in paying for Spamhaus’ opinions, which by the way
Spamhaus offers for free elsewhere on its website, but for the service Spamhaus
provides, a list of verifiable internet scofflaws that engage in a whole host of
29
activities from which ISPs and others deem undesirable. This clearly results in the
listings being more than mere speech, but graduating to conduct.
e360 and Mr. Linhardt, however, have never been removed from any ISPs at
the time they were listed on the ROKSO, nor did they engage in any activity that
would warrant inclusion on the SBL list. e360 and Mr. Linhardt employ
methodologies that assure the recipient of the emails sent by e360 and Mr. Linhardt
want to receive those emails. (S.A. 003-004.) There is no conduct that Spamhaus
can point to that would warrant e360 or Mr. Linhardt being placed on the ROKSO
or SBL lists. Despite repeated efforts to be removed from the ROKSO and SBL lists,
Spamhaus would not adhere to its own rules regarding placement and removal of
individuals and entities from these lists.
All of Spamhaus’ activity pertaining to e360 and Mr. Linhardt is conduct,
which does not fall under the protections afforded by the first amendment. See e.g.
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (U.S.
2006) (rejecting the view that conduct can be labeled speech whenever the person
engaging in the conduct intends thereby to express an idea and reaffirming that the
Court has extended First Amendment protection only to conduct that is inherently
expressive). Spamhaus cannot now shield itself behind the first amendment when
it conducts itself badly. Here, Spamhaus has failed to abide by its own rules
pertaining to the conduct that it has itself determines who is placed on the ROKSO
and SBL lists.
30
Stated simply, the injunction against Spamhaus precludes conduct, not
speech, for which there is no first amendment protection. None of Spamhaus’ speech
is being subjected to a prior restraint that would preclude the enforcement of the
injunction as currently written.
2. Spamhaus Does Not Engage in Protected Speech Because Its
Statements Involving e360 are False
Even if Spamhaus’ activities are deemed to be speech, they still are not
protected by the first amendment. There is “no constitutional value in false
statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 338 (1974)
(acknowledging that “making slanderous statements and defamatory falsehoods of a
primarily private concern … are on the lowest rung of the protection of the First
Amendment”); Barlow v. Sipes, 744 N.E.2d 1, 9 (1st Dist. 2001). “False statements of
fact are particularly valueless; they interfere with the truth-seeking function of the
marketplace of ideas, and they cannot easily be repaired by counterspeech, however
persuasive or effective.” Hustler Magazine v. Falwell, 485 U.S. 46, 51 (1988);
Barlow v. Sipes, 744 N.E.2d 1, 9 (1st Dist. 2001) (upholding an injunction that
“primarily operates to address alleged private wrongs committed … imputing
dishonest business practices and discouraging individuals from patronizing the …
business).
“The intentional lie does not materially advance society’s interest in
‘uninhibited, robust, and wide-open’ debate on public issues.” Barlow v. Sipes, 744
N.E.2d 1, 9 (1st Dist. 2001) quoting New York Times Co. v. Sullivan, 376 U.S. 254,
31
265 (1964). “Falsehoods belong to that category of utterances that ‘are no essential
part of any exposition of ideas and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality.’” Barlow v. Sipes, 744 N.E.2d 1, 9 (1st Dist. 2001)
quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
The speech here is precisely the type of speech that the first amendment does
not protect. The ROKSO and SBL lists purportedly contain facts, not opinions, and
e360 and Mr. Linhardt’ inclusion on this list renders these facts, at least as to
them, false. e360 and Mr. Linhardt are without recourse given the factual falsity of
the statements pertaining to them. Spamhaus’ intentional lies should not be
afforded the protection of the first amendment that legitimate speech deserves.
3. The Injunction Does Not Constitute Impermissible Compelled
Speech
The injunction, in part, requires Spamhaus to print on its website what is
essentially a retraction of the prior false statements of fact Spamhaus placed on the
ROKSO lists. The injunction does not constitute compelled speech because it only
requires Spamhaus to correct the prior erroneous placement of e360 and Mr.
Linhardt on the ROKSO list. Here, Spamhaus is not obliged to express a message
with which it disagrees because Spamhaus created the misconception that e360 and
Mr. Linhardt are spammers by ignoring it own criteria for being a “spammer” under
Spamhaus’ definition of that term. Accordingly, Spamhaus cannot disagree with the
32
message because Spamhaus was originally incorrect, according to its own
standards, by listing e360 as a “spammer.”
Moreover, “[t]he First Amendment's guarantee of freedom from ‘compelled
speech’ is not absolute. Particularly in the commercial arena, the United States
Constitution permits the state to require speakers to express certain messages
without their consent, the most prominent examples being warning and nutritional
information labels. The United States Supreme Court has allowed states to require
the inclusion of purely factual and uncontroversial information as long as disclosure
requirements are reasonably related to the state's interest in preventing deception
of consumers.” Entm't Software Ass'n v. Blagojevich, 469 F.3d 641 (7th Cir. 2006).
4. The Injunction Is Not Impermissibly Broad
An injunction is overbroad only if it could proscribe conduct which is more
broad than necessary to accomplish the permissible goals of the injunction. Madsen
v. Women's Health Ctr., 512 U.S. 753 (U.S. 1994) (noting that injunctive relief
should be no more burdensome to the defendant than necessary to provide complete
relief to the plaintiffs). Spamhaus’ argument here is not even ripe as the language
of the retraction message has not yet been determined. As a concept, however,
requiring language that requires Spamhaus to acknowledge its prior erroneous
placement of e360 and Mr. Linhardt on the ROKSO list in not overbroad nor
unconstitutional. The District Court did not abuse its discretion by requiring
Spamhaus to engage in conduct - - to post what amounts to be nothing more than a
retraction - - to correct prior conduct that harmed e360 and Mr. Linhardt.
33
In the final analysis, the permanent injunction entered by the District Court
appropriately addressed Spamhaus’ continuing conduct and fashioned remedies for
e360 and Mr. Linhardt that went only as far as needed under the circumstances of
this case. None of the remedies contained in the permanent injunction run afoul of
Spamhaus’ first amendment rights or present any constitutional concerns
whatsoever. The District Court acted well within its discretion when it entered the
permanent injunction against Spamhaus.
V. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DENYING SPAMHAUS’ MOTION TO VACATE THE DEFAULT
JUDGMENT
“Relief from a judgment under Fed. R. Civ. P. 60(b) is an extraordinary
remedy and is granted only in exceptional circumstances.” Bally Export Corp. v.
Balicar, Ltd., 804 F.2d 398, 400 (7th Cir. 1986) (holding that “[t]he decision to grant
relief under rule 60(b) is left to the sound discretion of the trial court, and review of
a trial court's decision to grant or deny rule 60(b) relief is subject to an abuse of
discretion standard.”). There are no exceptional circumstances here.
Fed. R. Civ. P. 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence,
surprise or excusable neglect . . . (4) the judgment is void … (6) any
other reason justifying relief from the operation of the judgment
None of these grounds provide Spamhaus with the relief it seeks.
34
A. Rule 60(b)(1) Does Not Provide Relief for Spamhaus; There Is No
Excusable Neglect, Inadvertence, and/or Mistake Exists
Rule 60(b)(1) does not protect Spamhaus’ intentional choice not to challenge
personal jurisdiction or service of process before the District Court. Spamhaus had
every opportunity to contest jurisdiction and service of process, but chose instead to
abandon the proceedings.
Spamhaus claims that some unspecified misunderstandings regarding
federal civil procedure, and an apparent miscommunication between Spamhaus’
United States counsel and United Kingdom counsel, account for the situation that
Spamhaus now finds itself in. e360 and Mr. Linhardt respectfully submit that even
if all of this is true, it is irrelevant for purposes of challenging any aspect of this
case pursuant to Rule 60(b)(1). No excusable neglect, inadvertence or mistake
occurred here. Spamhaus intentionally chose a path of conscience disregard for the
District Court’s authority, a path down which it proceeded throughout this case. It
continued down that path, teeth into the wind, despite the District Court’s explicit
warnings as to the consequences of doing so. Spamhaus continued to take this path
even upon facing the motion for entry of default judgment. In this context, the
District Court was well within its discretion to deny Spamhaus’ request for what
essentially amounts to a “do over” pursuant to Rule 60(b)(1).
Moreover, Spamhaus’ Motion to Vacate the Default Judgment asserts that
Spamhaus was “denied … its opportunity to present extrinsic evidence and
affidavits regarding service of process and personal jurisdiction.” (Appellant’s Brief
at 50). This statement is irrelevant, if not false. Spamhaus had multiple
35
opportunities to contest jurisdiction including: a motion filed incident to the original
removal to District Court; filing a 12(b)(2) motion incident to its initial removal
petition; at the August 23, 2006 court hearing, challenging the District Court’s
jurisdiction and/or service before it withdrew its Answer and appearance; opposing
e360’s Motion for Default Judgment; filing an affidavit in support of its Motion to
Vacate the Default Judgment attesting to a lack of service and/or personal
jurisdiction. Spamhaus failed to do any of these things.
The most Spamhaus did was file a declaration by Steve Linford, who
represents himself out to be the sole Director of Spamhaus, for the purpose of
certifying Spamhaus’ responses to a citation to discover assets. (A. 190-192.) In it,
Mr. Linford claims he is making his statements in part to “preserve any objections
to this Court’s personal jurisdiction over The Spamhaus Project, LTD…” (A. 190.)
Putting aside the numerous infirmaries that preclude the declaration from
being considered by the District Court (including the lack of Mr. Linford’s
competency and personal knowledge to support many of the statements he makes,
irrelevancy to the purpose for which the declaration is offered, hearsay and
unsubstantiated conclusions lacking foundation) the declaration is most telling for
what it does not contain - - a refutation of the jurisdictional assertion by e360 and
Mr. Linhardt, that “Spamhaus does business in Illinois by, among other things,
marketing its services to companies, and specifically internet service providers
(ISPs), located in Illinois." (SA. 002.). In other words, even if this declaration had
been properly submitted to the District Court , and assuming it contained
36
admissible evidence, the District Court would have properly found that nothing in
the declaration precluded a finding of personal jurisdiction over Spamhaus.
Spamhaus makes much of the fact that it was not allowed to file a
memorandum of law to support its Rule 60(b) motion, but the District Court was
well within its discretion to deny this request based on what had been presented to
it up to that point in the lawsuit as well as in the Rule 60(b) motion itself.
Spamhaus’ counsel’s argument at the hearing (A. 174-184.) shed no additional light
on what purpose additional briefing would have served. The declaration of Mr.
Linford makes clear that any additional evidence that Spamhaus might offer would
have failed to address any point that would have led the District Court to void the
judgment. The only discernable effect of allowing the continued proceedings
Spamhaus sought was to further drag out Spamhaus’ ability to defy the injunctive
relief contained in the judgment and avoid paying the damages assessed against it.
The District Court had the discretion to put a stop to Spamhaus’ delaying tactics,
and exercised that discretion appropriately.
B. Rule 60(b)(4) Does Not Provide Relief To Spamhaus; The Judgment
Is Not Void
Spamhaus’ appeal suggests that the District Court’s judgment is void because
of 1) insufficiency of process; or 2) lack of personal jurisdiction. The District Court
properly exercised its discretion in denying Spamhaus’ Motion to Vacate the Default
Judgment based on Rule 60(b)(4). At the hearing for the Motion to Vacate the
Default Judgment, Spamhaus’ attorney only argued that “I have not seen any
37
finding that there was proper service, as required by the Hague Convention” and
that he had “not seen any statement that the Court had jurisdiction – personal
jurisdiction – in any of this.” (A. 179). The District Court was under no obligation
to make an affirmative finding as to service of process and personal jurisdiction
where Spamhaus, through its appearance and answer, had submitted itself to the
District Court’s jurisdiction and had the opportunity to challenge both, but instead
intentionally abandoned the proceedings with knowledge of the impending default
judgment.
“If a defendant, after receiving notice, chooses to let the case against them go
to a default judgment, the defendant must then shoulder the burden of proof when
the defendant decides to contest jurisdiction in a post judgment Fed. R. Civ. P.
60(b)(4) motion.” Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398 (7th Cir. 1986).
Spamhaus did not meet its burden to have the default judgment vacated.
Notwithstanding the District Court’s refusal to allow Spamhaus to file a
memorandum in support of its Motion to Vacate, the burden remains with
Spamhaus to prove the default judgment should be vacated on improper service
grounds. Trustees of Central Laborers’ Welfare Fund, v. Keith and Dennis Lowery,
924 F.2d 731, 732 (7th Cir. 1991) (affirming District Court’s refusal to vacate
judgment on service grounds where defendant did not carry its burden of
demonstrating that service was inadequate and the court found “some indication in
the record” of service); Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 404 (7th
Cir. 1986) (holding that defendant had the burden of proving a judgment is void for
38
lack of service). Spamhaus never produced any of evidence demonstrating that
service against it was improper before the Circuit Court or the District Court, nor
could it given e360 and Mr. Linhardt’s compliance with the Hague Convention.
Because Spamhaus did not offer any proof of invalid service, the District Court did
not err in denying Spamhaus’ Motion to Vacate the Default Judgment. Trustees of
Central Laborers’ Welfare Fund, v. Keith and Dennis Lowery, 924 F.2d 731, 732 (7th
Cir. 1991); Jones v. Jones, 217 F.2d 239, 242 (noting that because the defendants
failed to offer any proof, such as affidavits, there was no grounds upon which to find
the judgment void).
The District Court’s judgment is not void for lack of personal jurisdiction
either. That personal jurisdiction exists here was clearly established above in
section III(B). The District Court did not abuse its discretion in entering the
judgment against Spamhaus.
C. Rule 60(b)(6) Also Provides No Relief to Spamhaus
Spamhaus attempts to invoke Rule 60(b)(6) on three bases: (1) e360 and Mr.
Linhardt fail to state any claims against Spamhaus; (2) there was no evidentiary
hearing on damages producing findings of fact; and (3) there was insufficient
evidentiary support for the award of damages. Spamhaus’ attempts are without
merit.
Other than Spamhaus’ conclusory statement that the Amended Complaint
fails to state a claim, nothing in the record even remotely suggests this to be the
case. e360 and Mr. Linhardt’s Amended Complaint complies in all respects to the
39
plain and concise statement required by Fed.R.Civ.P. 8. The allegations contained
in the Amended Complaint more than adequately put Spamhaus on notice of the
claims against it, and indeed, Spamhaus even answered those claims. There is no
basis to find the District Court abused its discretion by not agreeing with
Spamhaus’ notion that the Amended Complaint does not state claims adequately.
Similarly, Spamhaus’ argument that a lack of an evidentiary hearing
producing findings of fact precludes judgment against Spamhaus, is as erroneous as
the premise on which it is based. Spamhaus, despite notice of the Motion for Entry
of a Default Judgment, which included the evidence that e360 and Mr. Linhardt
were prepared to present to the District Court, failed to challenge that evidence and
thus no additional evidentiary hearing was necessary over and above the District
Court duly considering the affidavits presented to it. The record is clear that the
District Court, in fact, appropriately considered the evidence before it, and indeed,
rejected e360 and Mr. Linhardt’s request for punitive damages and attorneys fees.
The record is clear that the compensatory damages sought by e360 and Mr.
Linhardt were appropriate and substantiated.
Finally, Spamhaus argues that there was an insufficient basis for the
damages awarded by the District Court. The damages were supported by an
affidavit presented by e360’s President, Mr. Linhardt, which detailed, over eight
pages and forty one paragraphs, the damages sought from Spamhaus. (A. 124-131.)
Spamhaus now cryptically concludes that this was not good enough although it is
entirely unclear what additional information Spamhaus would conclude is
40
sufficient. Regardless of Spamhaus’ views, Mr. Linhardt’s affidavit, which was duly
considered by the District Court, is more than sufficient to substantiate the
monetary dollar judgment obtained from Spamhaus.
In the final analysis, none of the arguments Spamhaus raises under Rule
60(b)(6) suggest that the District Court abused its discretion in entering the
judgment against Spamhaus based on the claims asserted in the Amended
Complaint and the evidence supporting e360 and Mr. Linhardt’s damages.
CONCLUSION
For the reasons stated in this brief, e360Insight, LLC and David Linhardt
respectfully request that the default judgment entered by the District Court be
affirmed in all respects.
Dated: March 23, 2007 ________________________
Joseph L. Kish
Attorney for Plaintiffs-Appellees
e360INSIGHT, LLC and David Linhardt
Synergy Law Group, LLC
730 W. Randolph Street
Suite 600
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: 312-454-0261
41
CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) AND CIRCUIT
RULE 31(e)(1) CERTIFICATION
The undersigned, counsel of record for the Plaintiffs-Appellees, e360Insight,
LLC and David Linhardt, furnishes the following in compliance with F.R.A.P. Rule
32(a)(7).
I hereby certify that this brief conforms to the rules contained in F.R.A.P.
Rule 32(a)(7) for a brief produced with a proportionality spaced font. The length of
the brief is 11,918 words.
The undersigned also certifies that I have filed a digital version of the Brief of
Appellees on a virus-free disc in a non-scanned PDF format, and I certify that the
contents of the Supplemental Appendix are not available in digital versions that can
be generated by printing to PDF from the original word processing file.
Dated: March 23, 2007 ________________________
Joseph L. Kish
Attorney for Plaintiffs-Appellees
e360INSIGHT, LLC and David Linhardt
Synergy Law Group, LLC
730 W. Randolph Street
Suite 600
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: 312-454-0261
42
CERTIFICATE OF SERVICE
I, Joseph L. Kish, an attorney, hereby certify that I served a copy of the
foregoing RESPONSE TO BRIEF OF PLAINTIFFS-APPELLEES, e360INSIGHT,
LLC AND DAVID LINHARDT upon:
Matthew M. Neumeier
Craig C. Martin
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Avenue
Chicago, IL 60611
Phone:(312) 222-9350
Fax:(312) 527-0484
Matthew B. Prince
Adjunct Professor of Internet Technology Law at
John Marshall Law School
1901 Prospector Avenue, Suite 200
Park City, UT 84060
(435)615-9205
by depositing same in the United States Mail, postage prepaid, on this 23rd day of
March 2007.
Joseph L. Kish
43

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