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Defendant Retzlaff files this motion to dismiss plaintiffs suit for lack of personal
jurisdiction, as authorized by Federal Rule of Civil Procedure 12(b)(2).
A. INTRODUCTION
1.
Plaintiffs are James McGibney and ViaView, Inc.; defendants are Thomas
2.
The case arises from an attempt by plaintiff ViaView and its employee / CEO
James McGibney to silence free speech and online criticism of plaintiffs company
(which is a revenge porn website). Both Viaview and James McGibney are Public
Figures within the meaning of the anti-SLAPP statute having inserted themselves into
numerous controversies over the past several years and having made numerous media
appearances regarding the subject of bullying and infidelity. As such, they are the
fair subject of criticism, even intense criticism.
B. ARGUMENT
5.
Before getting started here, defendant Retzlaff, who is appearing pro se, would
like to remind the court that Pro se litigants' court submissions are to be construed
liberally and held to less stringent standards than submissions of lawyers. If the court
can reasonably read the submissions, it should do so despite failure to cite proper
legal authority, confusion of legal theories, poor syntax and sentence construction, or
litigant's unfamiliarity with rule requirements. Boag v. MacDougall, 454 U.S. 364,
102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d
652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996);
United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot
be held to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58
F.Supp.2d 422, 429 (D.N.J. 1999).
6.
The courts provide pro se parties wide latitude when construing their pleadings
and papers. When interpreting pro se papers, the Court should use common sense to
determine what relief the party desires. S.E.C. v. Elliott, 953 F.2d 1560, 1582 (11th
Cir. 1992). See also, United States v. Miller, 197 F.3d 644, 648 (3rd Cir. 1999)
(Court has special obligation to construe pro se litigants' pleadings liberally); Poling
v. K.Hovnanian Enterprises, 99 F.Supp.2d 502, 506-07 (D.N.J. 2000).
7.
Federal courts do not have jurisdiction over a nonresident defendant unless the
8.
him must be authorized under the state's long-arm statute and must satisfy the due
process clause of the United States Constitution. See Pac. Atl. Trading Co. v. M/V
Main Express, 758 F.2d 1325, 1327 (9th Cir.1985). California's long-arm statute is
co-extensive with federal standards, so a federal court may exercise personal
jurisdiction if doing so comports with federal constitutional due process. Boschetto
v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008); see also Cal. Civ. Pro. Code
410.10. For a court to exercise personal jurisdiction over a nonresident defendant
consistent with due process, that defendant must have certain minimum contacts'
with the relevant forum such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice. CollegeSource, Inc. v.
AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir.2011) (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154(1954)). Under due process analysis, a
defendant may be subject to either general or specific personal jurisdiction. See
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct.
1868 (1984). When confronted with a motion to dismiss, the plaintiff bears the
burden of establish that jurisdiction is proper. Boschetto v. Hansing, 539 F.3d at
1015. The plaintiff cannot simply rest on the bare allegations of its complaint, but
uncontroverted allegations in the complaint are taken as true. Schwarzenegger v.
Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). The court does not
assume the truth of the allegations in a pleading which are contradicted by affidavit.
9.
Here, Plaintiffs cannot not allege that Retzlaff is subject to general jurisdiction
in this judicial district. Moreover, Plaintiffs cannot allege that the court may exercise
specific jurisdiction over the defendant.
NO MINIMUM CONTACTS
might or might not be in California. Thus, if defendant had contacted them, said
contacts would not have taken place in California.
11. A court cannot exercise specific jurisdiction over a nonresident defendant
unless the nonresident defendants activities were purposefully directed to the forum
state and the litigation resulted from alleged injuries that arise from or relate to those
activities. J. McIntyre Mach., ___ U.S. at ___, 131 S. Ct. at 2787-88 (plurality op.);
Monge, 701 F.3d at 613-14; see Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115,
1121-23 (2014). This Court does not have specific jurisdiction over defendant
Retzlaff because defendant did not purposefully direct his alleged activities to
California and plaintiffs claims did not arise from or relate to defendant Retzlaffs
contacts with California.
collects state personal income tax and corporate income tax), there is no record of a
company called ViaView, Inc. with their office.
Retzlaff. Defendant Retzlaff also contacted the Santa Clara County Tax Assessors
Office and found they have no record of any company calling itself ViaView, Inc.
See attached Exhibit D.
Thus, defendant
Retzlaff did not have any purposeful contacts with the forum state that could give rise
to specific jurisdiction.
13. It should be noted that plaintiffs own business records belie the fact that it is a
California company. Specifically, in business filings with the Nevada Secretary of
States Office dated July 30, 2014, James McGibney listed himself and his Las Vegas
home as the Address of Record for ViaView, Inc. Why is this?
15. A plaintiff bringing multiple claims arising from different contacts of the
defendant must establish specific jurisdiction for each claim.
See Seiferth v.
Helicopteros Atuneros, Inc., 472 F.3d 266, 274-75 (5th Cir. 2006) (specific
jurisdiction is a claim-specific inquiry). In the case at hand, plaintiffs have alleged a
HUGE hodgepodge of kitchen sink allegations that are very broad and sweeping.
So for each specific claim that plaintiffs make against this specific defendant, they
must establish exactly how this court has specific jurisdiction. Plaintiffs have not
done so.
General Jurisdiction
16. While plaintiffs seem willing to concede that they are not arguing that this
court has general jurisdiction over this defendant (see Plaintiffs Opposition to
NO FAIR PLAY
17. This Courts assumption of jurisdiction over defendant and his property would
offend traditional notions of fair play and substantial justice and would be
inconsistent with the constitutional requirements of due process. See Intl Shoe, 326
U.S. at 316. The Court should decline to exercise jurisdiction over defendant for the
following reasons:
a.
of over $20,000 per month from its revenge porn and other business
activities. The economic disparity between the two parties is substantial.
b.
c.
C. CONCLUSION
18. Defendant has had no minimum contacts with California. Furthermore, the
Courts assumption of jurisdiction over defendant would offend traditional notions of
fair play and substantial justice and would be inconsistent with due process of law.
For these reasons, defendant asks the Court to dismiss all of plaintiffs claims.
Respectfully submitted,
10
CERTIFICATE OF SERVICE
I certify that on August 5, 2014, a copy of this document was electronically filed on the
CM/ECF system, which will automatically serve a Notice of Electronic Filing on the
following attorney in charge for plaintiffs ViaView & James McGibney:
Jason Scott Leiderman, of 5740 Ralston Street Ste 300, Ventura, CA 93003, Email:
Jay@Criminal-Lawyer.me.
I certify that Jay Leiderman is a registered CM/ECF user and that service will be
accomplished by the CM/ECF system.
I certify that on August 5, 2014, a copy of this document was electronically filed on the
CM/ECF system, which will automatically serve a Notice of Electronic Filing on the
following attorney in charge for defendant Lane Lipton:
Clark Anthony Braunstein, of 11755 Wilshire Boulevard, Suite 2140, Los Angeles, CA
90025, Email: Clarkbraunstein@gmail.com.
I certify that Clark Anthony Braunstein is a registered CM/ECF user and that service
will be accomplished by the CM/ECF system.
11
EXHIBIT A
Delaware Incorporation
EXHIBIT B
SEC Filings
SEC FORM D
FORM D
OMB APPROVAL
OMB Number:
3235 -0076
Expires:
August 31,
2015
hours per
response:
1. Issuer's Identity
Previous
Names
X None
Entity Type
0001526577
X Corporation
Name of Issuer
ViaView, Inc.
Jurisdiction of Incorporation/Organization
DELAWARE
Year of Incorporation/Organization
X Over Five Years Ago
Limited Partnership
Limited Liability Company
General Partnership
Business Trust
Other (Specify)
Street Address 2
SUITE 110
City
State/Province/Country
ZIP/PostalCode
LAS VEGAS
NEVADA
89141
702-406-7684
3. Related Persons
Last Name
First Name
McGibney
James
Street Address 1
Street Address 2
Middle Name
State/Province/Country
ZIP/PostalCode
Las Vegas
NEVADA
89141
Promoter
First Name
Mamula
Nick
Middle Name
4.00
SEC FORM D
Street Address 2
State/Province/Country
ZIP/PostalCode
Las Vegas
NEVADA
89118
Promoter
First Name
Hubbs
Wayne
Street Address 1
Street Address 2
Middle Name
State/Province/Country
ZIP/PostalCode
Henderson
NEVADA
89014
Relationship:
First Name
Caspers
Mark
Street Address 1
Street Address 2
Middle Name
State/Province/Country
ZIP/PostalCode
Henderson
NEVADA
89012
Relationship:
First Name
Suder
Dave
Street Address 1
Street Address 2
Middle Name
State/Province/Country
ZIP/PostalCode
Anaheim
CALIFORNIA
92807
Relationship:
First Name
Ryan
Scott
Street Address 1
Street Address 2
Middle Name
State/Province/Country
ZIP/PostalCode
Phoenix
ARIZONA
85023
Relationship:
SEC FORM D
First Name
Carr
Michael
Street Address 1
Street Address 2
Middle Name
State/Province/Country
ZIP/PostalCode
NEVADA
89085
Relationship:
4. Industry Group
Agriculture
Health Care
Commercial Banking
Health Insurance
Insurance
Restaurants
Technology
Computers
Investment Banking
Pharmaceuticals
Telecommunications
X Other Technology
Investing
Yes
No
Biotechnology
Retailing
Business Services
Manufacturing
Real Estate
Commercial
Construction
Other Travel
Residential
Energy
Travel
Other
Coal Mining
Electric Utilities
Energy Conservation
Environmental Services
Oil & Gas
Other Energy
5. Issuer Size
Revenue Range
No Revenues
$1 - $1,000,000
$1,000,001 - $5,000,000
OR
$5,000,001 -
$25,000,001 - $50,000,000
$25,000,001 -
$50,000,001 - $100,000,000
$25,000,000
$100,000,000
Over $100,000,000
Over $100,000,000
SEC FORM D
X Decline to Disclose
Not Applicable
Rule 505
X Rule 506
Section 3(c)(1)
Section 3(c)(9)
Section 3(c)(2)
Section 3(c)(10)
Section 3(c)(3)
Section 3(c)(11)
Section 3(c)(4)
Section 3(c)(12)
Section 3(c)(5)
Section 3(c)(13)
Section 3(c)(6)
Section 3(c)(14)
Section 3(c)(7)
7. Type of Filing
X New Notice Date of First Sale 2011-07-08
Amendment
8. Duration of Offering
Does the Issuer intend this offering to last more than one year?
Yes X No
Debt
Option, Warrant or Other Right to Acquire Another Security
Security to be Acquired Upon Exercise of Option, Warrant or
Yes X No
SEC FORMD
Dealer~ None
Street Address 1
City
Number~ None
Street Address 2
State/Province/Country
ZIP/Postal Code
USD
or~ Indefinite
$ 652,000 USD
USD
or~ Indefinite
11
14
11
=====::!J.
1..!::.
DEstimate
Finders' Fees $ 0 USD DEstimate
DEstimate
SECFORMD
Each Issuer identified above has read this notice, knows the contents to be true, and has duly caused this notice to be signed on
its behalf by the undersigned duly authorized person.
For signature, type in the signer's name or other letters or characters adopted or authorized as the signer's signature.
Issuer
!viaView, Inc.
II
Signature
!IJames McGibney
II
Name of Signer
!IJames McGibney
II
Title
II
Date
112011-07-28
Persons who respond to the collection of information contained in this form are not required to respond
unless the form displays a currently valid OMB number.
This undertaking does not affect any limits Section 102(a} of the National Securi ies Mar1<ets Improvement Act of 1996 (''NSMIA") (Pub. L No. 104-290, 110 stat. 3416 (Oct 11. 1996)]
imposes on the ability of states to require infonnation. As a result, if the securities tnat are the sUbject of this Form D are "oovered securities" for purposes of NSMIA, Whether in all
instances or due to the nature of the offering that is the subject of this Form D. states cannot routinely require offering materials under this undertaking or otherwise and can require
offering materials only to the extent NSMIA permits them to do so under NSMIA's preservation of their anti-fraUd authority.
EXHIBIT C
California Secretary of State Info
EXHIBIT D
Santa Clara County Tax Assessors Office
EXHIBIT E
Nevada Secretary of States Office Info
VIAVIEW, INC.
Business Entity Information
Status: Active
Type: Foreign Corporation
Qualifying State: DE
Managed By:
NV Business ID: NV20111422461
File Date:
Entity Number:
List of Officers Due:
Expiration Date:
Business License
Exp:
6/23/2011
E0360832011-1
6/30/2015
6/30/2015
Additional Information
Central Index Key:
Financial Information
No Par Share Count: 0
Par Share Count: 200,000,000.00
Officers
President - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
City: LAS VEGAS
Zip Code: 89141
Status: Active
Secretary - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
City: LAS VEGAS
Zip Code: 89141
Status: Active
Treasurer - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
City: LAS VEGAS
Zip Code: 89141
Status: Active
Director - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
http://nvsos.gov/SOSEntitySearch/PrintCorp.aspx?lx8nvq=R0AvnJJGaR1B1aHJ5UidWw... 05-Aug-14
State: NV
Country: USA
Email:
Actions\Amendments
Action Type: Foreign Qualification
Document Number: 20110465314-87
# of Pages: 2
File Date: 6/23/2011
Effective Date:
Initial Stock Value: Par Value Shares: 200,000,000 Value: $ 0.0001 No Par Value Shares: 0 ---------------------------------------------------------------- Total Authorized Capital: $ 20,000.00
Action Type: Miscellaneous
Document Number: 20110465315-98
# of Pages: 1
File Date: 6/23/2011
Effective Date:
CERTIFICATE OF EXISTENCE FROM DELAWARE DATED 6/23/2011
Action Type: Initial List
Document Number: 20110469039-25
File Date: 6/24/2011
(No notes for this action)
# of Pages: 1
Effective Date:
# of Pages: 1
Effective Date:
# of Pages: 1
Effective Date:
# of Pages: 1
Effective Date:
http://nvsos.gov/SOSEntitySearch/PrintCorp.aspx?lx8nvq=R0AvnJJGaR1B1aHJ5UidWw... 05-Aug-14
v.
1. I am the defendant in this case. I have personal knowledge of the matters stated herein
and, if called as a witness, I could and would testify competently thereto.
3. Over the past ten 10 years, I have not engaged in any business in or involving the State of
California or with any person or firm located in that state.
4. I have not set foot in State of California in probably 5 or 6 years, and I have never been
anywhere near San Jose, CA ever.
5. I do not own any property in the State of California. I have no intention to reside or own
property in the state of California.
6. On or about July 24, 2014, I contacted the California Franchise Tax Board by telephone
and, after being transferred around a bit, was finally told that there is absolutely no record
of a company called ViaView or ViaView, Inc. with the state of California whatsoever.
The same holds true with the California Employment Development Department and the
California Secretary of State's Office. I called all of these governmental entities myself
and confinned that there is no such company licensed or authorized to do business in the
state of California.
7. I have been able to confirm that ViaView, Inc. is a company that is incorporated in
Delaware and that it has its one and only office in Las Vegas, NV. According to the
Nevada Secretary of State's Office, on July 30,2014, James McOibney, in Document#
20140548801-03, filed with the NV SOS an updated Annual List that shows Mr.
McGibney has the Registered Agent for Service of Process with both a mailing address
and a home address in the city of Las Vegas, NV. See attached Exhibits.
8. I have never had any kind of personal communication with James McGibney. I
specifically deny ever making any kind of "death threats" against Mr. McGibney or his
family. I have never had any contacts with any California-based ViaView entities or
personaL James McGibney only moved to San Jose around December 1, 2013, I believe.
9. I had one email contact with the ViaView company back in September, I think, when I
asked them to take down photographs they had of my daughter on their website. But
Cheaterville has a specific policy of non-removal unless you pay money to a "service"
that is affiliated with them to get the posts down. At least three people have sued
Cheaterville and McGibney in federal court over their blackmail and extortion activities:
2, . .
Jared Powers and Winona Valdez Case, a husband and wife from Sacramento, case 2:13cv-01701-JAM-CKD; and Ebenezer Quainoo, a medical doctor from Maryland, case
1: 14-cv-00674-JK.B. There is presently a RICO lawsuit pending in Atlanta, GA against
the Take Down "services" McGibney is involved in with his Cheaterville site that was
filed by a female Georgia attorney who was posted and defamed by these websites, and
then forced to pay money to remove the posts. Because a lot of this and the loss ofhis
advertisers all took place at around the same period of time, I think McGibney blames me
for this and, thus, I because the next name on his Enemies List. See, because every six or
so months McGibney needs someone new to focus his angry on and to rally his "troops"
and to keep up the buzz on his websites. I am just one victim among many. Like when
he accused some guy named James DuffY of murdering people and having dead bodies in
his backyard and claimed that the FBI was going to arrest him "any day now." Or when
McGibney boldly claimed that he was going to file a Class Action lawsuit against every
person who ever had anything mean to say about some Reality TV person named Kate
Gosselin. Or when McGibney claimed that some lady from Canada was tweeting "death
threats" against him and his family a few months ago. Or when McGibney claimed that
some guy named Neal Rauhauser had "SWATted" him or otherwise did "mean things"
on the internets.
10. McGibney has filed a bunch of lawsuits against me and about ten other people all over
the country. Specifically, there are three lawsuits currently pending in three different
forums involving similar claims against the same defendant (and groups of defendants):
(1) McGibney v. Retzlaff, et al., No. 067-270669-14, Tarrant County District Court in Ft.
Worth, Texas, filed February 19, 2014; (2) McGibney v. Retzlaff, et al., No. 14-cv01059-HRL, U.S. District Court for the Northern District of California, filed March 6,
2014; and (3) Via View v. Retzlaff, No. 1-14-CH-005460, Santa Clara County Superior
Court, California, filed March 17, 2014. Prior to the filing of these lawsuits I have never
heard of any of these people and certainly was never in any conspiracy vvith them.
31
I declare under penalty of pe:rjury under the laws of the State of California that the foregoing is
true and correct.
Thomas Retzlaff
41