Case5:14-cv-01059-BLF Document21 Filed07/31/14 Page1 of 7

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JASON S. LEIDERMAN, SBN 203336

jay@criminal-lawyer.me
LAW OFFICES OF JAY LEIDERMAN
5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280
Attorney for Plaintiffs
JAMES MCGIBNEY
VIAVIEW, INC

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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)
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Plaintiffs,
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vs.
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THOMAS RETZLAFF, an individual,
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NEAL RAUHAUSER, an individual,
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LANE LIPTON, an individual, and
DOES 1-5, individuals whose true names are not )
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known,
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Defendants.
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JAMES MCGIBNEY, an individual, and
VIAVIEW, INC, a corporation,

Case No.: 5:14-cv-01059 BLF

PLAINTIFFS OPPOSITION TO
DEFENDANT LANE LIPTONS MOTION
TO DISMISS
Hearing Date:
Time:
Place:

18 September 2014
9:00 am
Courtroom 3

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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Plaintiffs James McGibney (McGibney) and ViaView, Inc. (ViaView) (collectively,

Plaintiffs) hereby submit this Opposition to Defendant Lane Liptons (Defendant or Lipton)

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Motion to Dismiss for lack of personal jurisdiction.
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PLAINTIFFS OPPOSITION
TO DEFENDANT LANE LIPTONS
MOTION TO DISMISS
Page 1

LAW OFFICES OF JAY LEIDERMAN

5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280

Case5:14-cv-01059-BLF Document21 Filed07/31/14 Page2 of 7

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MEMORANDUM OF POINTS AND AUTHORITIES.

I.

INTRODUCTION.
The frictionless flow of information made possible by the Internet allows a person in New York

to spread lies in California, without having to leave the comfort of home. That it is easy to speak so

loudly, however, does not defeat the power of California courts to remedy the resulting harm.
As alleged in Plaintiffs Amended Complaint (the Complaint), (Docket No. 5), Defendant

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Lane Lipton conspired with a small but geographically diverse group of people to defame Plaintiffs with

the explicit goal of ruining their California-based business. Lipton and her co-defendants purposely

aimed their tortious conduct toward California; they are therefore subject to Californias courts. Indeed,

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Lipton has already consented to the jurisdiction of this court by asking it to adjudicate her Special

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Motion to Strike Pursuant to Cal. Rule Civ. P. 425.16. (Docket No. 16.) Her Motion to Dismiss for

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lack of personal jurisdiction, (Docket No. 15), should be denied.

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II.

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STATEMENT OF ISSUES.
The issues to be decided pursuant to the pending motion to dismiss for lack of personal

jurisdiction are:

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(1) Did the nonresident defendant purposefully direct his/her conduct toward the forum state?

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(2) Does the cause of action arise out of the nonresident defendants purposeful conduct toward

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the forum state?

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(3) Is the exercise of jurisdiction reasonable?

III.

STATEMENT OF RELEVANT FACTUAL ALLEGATIONS.

Plaintiff James McGibney resides and is domiciled in San Jose, California. (Compl. 2.)

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Plaintiff ViaView, Inc. is a Delaware corporation with its business centers in San Jose, California and

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Las Vegas, Nevada. (Id. 3.) Defendant Lane Lipton resides and is domiciled in Roslyn, New York.

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(Id. 6.)

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Beginning in early summer 2013, Lipton, along with co-defendants Neal Rauhauser and Thomas

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Retzlaff, began harassing and defaming McGibney. (Compl. 1.) Defendants began their conduct

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using Twitter, but ultimately used a number of different accounts across several different kinds of social

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media to publish false and defamatory statements, including e-mail, Facebook, and the Wordpress
PLAINTIFFS OPPOSITION
TO DEFENDANT LANE LIPTONS
MOTION TO DISMISS
Page 2

LAW OFFICES OF JAY LEIDERMAN

5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280

Case5:14-cv-01059-BLF Document21 Filed07/31/14 Page3 of 7

blogging platform. (See, e.g., id. 28, 29, 40, 46, 80, 95.) Specifically, the Complaint alleges that

Lipton used Twitter accounts @LaneLipton, @qritiq, @OccupyRebellion, @MissAnonNews,

@MissAnonNews_, and e-mail account she.purrs@hotmail.com, and further alleges that she had

participated in the administration of bvfiles.wordpress.com. (Id. 95, 97, 114-124, 136.)

Defendants campaign of harassment included more than the repeated publication of false

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accusations that McGibney is a pedophile. (See Compl. 36, 39, 40, 48, 51, 54, 58, 60, 64-66, 71,

107-112, 129, 132, 144, 147, 150-152, 155-157.) It also included targeted complaints to ViaViews

advertising partners. Defendants falsely reported to many of these partners that ViaView was publishing

a revenge porn website, despite McGibneys personal history fighting such websites. (See, e.g., id.

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16-17, 36, 39, 40, 48, 51.) They repeated and continue to repeat these false allegations ad nauseum on

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their Wordpress blog. (See id. at 125-157.) These false statements damaged Plaintiffs business

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relationships and caused substantial financial damage. (Id. 21-22.)

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IV.

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ARGUMENT.
By deliberately directing false statements into California with the intent to harm Plaintiffs

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financial interests in California, Lipton has subjected herself to the jurisdiction of California courts. Of

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course, due process limits a courts authority to exercise its jurisdiction over a nonresident defendant.

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World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). In general, such a defendant

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must have minimum contacts [which do] not offend traditional notions of fair play and substantial

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justice. Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). These minimum contacts may be

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established by showing substantial, continuous and systematic contacts with the forum Statecalled

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general jurisdictionor by showing that the lawsuit arises out of defendants contacts with the forum

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Statecalled specific jurisdiction. See Daimler AG v. Bauman, ___ U.S. ___, 134 S.Ct. 746, 754

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(2014). Here, Plaintiffs do not rely on a general jurisdiction theory. Rather, this court has specific

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jurisdiction based on contacts with California arising out of Liptons suit-related conduct.

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A.

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The Ninth Circuit uses a three-part test to determine whether a court may exercise specific

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THIS COURT HAS SPECIFIC PERSONAL JURISDICTION OVER LIPTON.

personal jurisdiction over a nonresident defendant:

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PLAINTIFFS OPPOSITION
TO DEFENDANT LANE LIPTONS
MOTION TO DISMISS
Page 3

LAW OFFICES OF JAY LEIDERMAN

5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280

Case5:14-cv-01059-BLF Document21 Filed07/31/14 Page4 of 7

(1) The nonresident defendant must purposefully direct his activities or consummate some

transaction with the forum or resident thereof; or perform some act by which he purposefully

avails himself of the privilege of conducting activities in the forum, thereby invoking the

benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendants forum-related

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activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be

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reasonable.
Schwarzenneger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). The plaintiff bears the

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burden of making a prima facie showing on the first two prongs. Id. at 800, 802. Factual disputes must

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be resolved in the plaintiffs favor. Id. at 800. If the plaintiff succeeds, the burden then shifts to the

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defendant to present a compelling case that the exercise of jurisdiction would not be reasonable. Id.

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at 802.

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1.

Lipton Purposefully Directed the Alleged Conduct Toward California.

First, and most importantly, Plaintiffs have sufficiently alleged that Lipton deliberately directed

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her tortious conduct at California. Purposeful direction is evaluated under a three-part inquiry

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originating in the Supreme Courts opinion Calder v. Jones, 465 U.S. 783 (1984). That three-part

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inquiry requires the plaintiff to allege a prima facie case that the defendant (1) committed an intentional

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act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be

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suffered in the forum state. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d at 805 (citing Dole

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Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)).

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Here, the Complaint satisfies all three prongs of the Calder effects test.

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First, Plaintiffs allege several intentional torts, each of which requires at bottom an intentional

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act. Researching, writing, editing, publishing, or uttering libelous statements all satisfy the intentional

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act requirement. See id. at 806; cf. also Calder v. Jones, supra, 465 U.S. 783.

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Second, the Complaint specifically alleges that Defendants intentionally directed their conduct

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in order to cause harm to Plaintiffs interests in San Jose. (Compl. 12.) The bvfiles blog posts titled

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PLAINTIFFS OPPOSITION
TO DEFENDANT LANE LIPTONS
MOTION TO DISMISS
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LAW OFFICES OF JAY LEIDERMAN

5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280

Case5:14-cv-01059-BLF Document21 Filed07/31/14 Page5 of 7

The Economic Destruction of James McGibney & ViaView and Comments from James McGibneys

Advertisers amount to clear proof of that intent. (See id. 131.)

Third, Plaintiffs specifically allege that Lipton knew that Plaintiffs were based in California.

(Compl. 10-11.) Indeed, several of the tweets detailed in the Complaint demonstrate this knowledge.

(See id. 110, 111.)

Citing the Supreme Courts recent decision in Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115

(2014), Lipton argues that because she has had no contacts whatsoever with the forum state outside of

the alleged contact with the Plaintiff, she is not subject to the courts personal jurisdiction. (Mot. to

Dismiss, pp. 11-12.) This argument blurs the concepts of general jurisdiction and specific jurisdiction.

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Plaintiffs need not show any pre-existing contact with California to establish specific jurisdiction; rather,

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they must only show that the alleged conduct connects her to California.

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A close reading of Walden demonstrates that Liptons argument is without merit. Part II B 2 of

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the High Courts unanimous opinion explains that the crux of Calder was that the reputation-based

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effects of the alleged libel connected the defendants to California, not just to the plaintiff. Walden v.

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Fiore, 134 S.Ct. at 1123-24. The strength of that connection, the court continued, was a function of

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the nature of the libel tort. Id. at 1124. In fact, because publication to third persons is a necessary

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element of libel, [citations], the defendants intentional tort actually occurred in California. Ibid.

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(emphasis in original); see also Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777 (1984) (The tort of

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libel is generally held to occur wherever the offending material is circulated.). That is, under Walden

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and Calder, intentionally publishing defamatory material to an audience that includes a substantial

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number of California readers subjects the speaker to the jurisdiction of California courts.

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In sum, Plaintiffs have satisfied the three-pronged Calder effects test. Defendant
purposefully directed her conduct into California.
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The Claims in This Case Arise Out of Liptons Forum-Related Activities.

Second, the claims here obviously arise out of Liptons in-forum activities. In fact, Plaintiffs
have not alleged that Lipton had any in-forum activities unrelated to the suit.

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PLAINTIFFS OPPOSITION
TO DEFENDANT LANE LIPTONS
MOTION TO DISMISS
Page 5

LAW OFFICES OF JAY LEIDERMAN

5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280

Case5:14-cv-01059-BLF Document21 Filed07/31/14 Page6 of 7

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3.

California is the Only Reasonable Forum to Adjudicate This Case.

Finally, Lipton bears the burden to show that an exercise of jurisdiction would be unreasonable,

but she will be unable to meet this burden. In fact, California is the only reasonable forum to litigate this

case. Consider the alternative: if California does not have specific personal jurisdiction over the

defendants in this case, Plaintiffs will be forced to file separate suits in New York, Texas, and Illinois in

order to litigate the same issues three times, under three different states laws, at three times the cost. As

a practical matter, such a scheme makes it impossible for any plaintiff to remedy the kind of interstate,

Internet defamation suffered in this case. As such, California courts are the only courts with reasonable

jurisdiction over these kinds of torts.

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In short, Plaintiffs allegations satisfy Due Process requirements for a fair exercise of personal

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jurisdiction over Lipton. By purposefully directing defamatory statements toward California with the

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express intention of harming Plaintiffs business interests in California, Lipton has made herself subject

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to the power of California courts. Her motion to dismiss must be denied.

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B.

DEFENDANT HAS CONSENTED TO THE PERSONAL JURISDICTION OF

THIS COURT BY FILING A SPECIAL MOTION TO STRIKE.

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Furthermore, by asking this court to adjudicate its Motion to Strike on the merits, Defendant has

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consented to the jurisdiction of this court. Because the Due Process right to a fair exercise of personal

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jurisdiction is an individual right, in may be waived. Ins. Corp. of Ireland, Ltd. v. Compagnie Des

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Bauxites de Guinee, 456 U.S. 694, 703 (1982). Federal courts ordinarily follow state law in

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determining the bounds of their jurisdiction over persons. Daimler AG v. Bauman, supra, 134 S.Ct. at

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753; Fed. R. Civ. P. 4(k)(1) (serving a summons establishes personal jurisdiction over a defendant . . .

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who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is

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located). Indeed, the United States Supreme Court has upheld state procedures which find

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constructive consent to the personal jurisdiction of the state court in the voluntary use of certain state

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procedures. Ins Corp. of Ireland, 456 U.S. at pp. 703-704 (citing Adam v. Saenger, 303 U.S. 59, 67-68

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(1938); Chicago Life Ins. Co. v. Cherry, 244 U.S. 25, 29-30 (1917)).

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Under California law, a defendant appears in an action when the defendant answers, demurs,
files a notice of motion to strike, files a notice of motion to transfer . . . , moves for reclassification . . . ,
PLAINTIFFS OPPOSITION
TO DEFENDANT LANE LIPTONS
MOTION TO DISMISS
Page 6

LAW OFFICES OF JAY LEIDERMAN

5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280

Case5:14-cv-01059-BLF Document21 Filed07/31/14 Page7 of 7

gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the

defendant. Cal. Code Civ. P. 1014 [emphasis added]. That is, a defendant who has not yet

answered has been held to have made a general appearancethat is, to have conceded the jurisdiction of

the courtif he invokes the authority of the court on his behalf, or affirmatively seeks relief. Roy v.

Superior Court, 127 Cal.App.4th 337, 341 (Cal. Ct. App. 2005).

Here, Defendant has voluntarily submitted to the power of this court by asking it to resolve her

Special Motion to Strike. Pursuant to Cal. Code Civ. P. 1014, she has made a general appearance in

this court. That is, she has already consented to its jurisdiction.

V.

CONCLUSION.

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Defendant Lane Lipton is subject to this courts jurisdiction. The Complaint alleges that she

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purposefully directed the alleged conduct at California by conspiring with others to deliberately ruin

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Plaintiffs business in California. This is sufficient to satisfy Calders effects test, and confers on this

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court the jurisdiction to resolve the dispute. Furthermore, Lipton has already consented to this courts

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jurisdiction by filing a special motion to strike. Her Motion to Dismiss must be denied.

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Dated: 31 July 2014

LAW OFFICES OF JAY LEIDERMAN

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By:___/s/_Jay Leiderman_________________
Jason S. Leiderman
Attorney for Plaintiffs
James McGibney
ViaView, Inc.
jay@criminal-lawyer.me

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PLAINTIFFS OPPOSITION
TO DEFENDANT LANE LIPTONS
MOTION TO DISMISS
Page 7

LAW OFFICES OF JAY LEIDERMAN

5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280