Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 1 of 13

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DANIELLE MALMQUIST,
Case No: 3:17-cv-04831-JD
Plaintiff,

v.

SHEM MALMQUIST, MEREDITH

MALMQUIST, GARRETT
MALMQUIST, GENEVIEVE
ELIZABETH COCKRELL,

Defendants.

PLAINTIFF’S RESPONSE TO

DEFENDANT’S MOTION TO DISMISS

FOR LACK OF PERSONAL JURISDICTION

TO THE HONORABLE JUDGE OF THIS COURT:

COMES NOW the Plaintiff, Danielle Malmquist, who hereby

submits his Response to Defendants’ Motion to Dismiss and

states as follows:

PRELIMINARY STATEMENT

Plaintiff Danielle Malmquist submits this plaintiff’s

response to defendant’s motion to dismiss in opposition to

the motion by defendants Shem Malmquist Meredith, Malmquist

Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 2 of 13

Garrett, Malmquist Genevieve, Elizabeth Cockrell

(collectively “defendants”) to dismiss MS. Danielle

Malmquist’s complaint on the ground of lack of subject

matter jurisdiction.
 Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 3 of 13

TABLE OF CONTENTS

STATEMENT OF FACTS

I. STANDARD OF REVIEW FOR PERSONAL JURISDICTION

II. LEGAL ARGUMENTS

THIS COURT HAS SUBJECT MATTER JURISDICTION OVER THIS CASE AND

DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED FOR THE FOLLOWING

REASONS:

a) Defendants have family relatives in the State of

Northern California on which they are vising them;

b) Defendant Shem Malamquist have work-related layover

in California;

c) Defendants created the website to maliciously harass,

vex, with an intention to degrade, debase, and demean

the intrinsic worth and dignity of the Defendant

living in Northern District of California. The

malicious blog limits its audience in the State of

California and any person who lives in Northern

District of California;

d) Defendants created an article in the malicious

blogspot1 with the title “DEALING WITH DIABOLIC

DANIELLE WEBLOG” attaching tags/labels in the

blogposts “Con Artists, Danielle Malmquist (The

Plaintiff in this case), Danielle Nicolosi,

Diabolical, Psychopath, Uncategorized) (Architect,

Diabolical, Divorce, Family, Los Angeles

1
http://daniellenicolosi.blogspot.com
Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 4 of 13

(California), Memphis, Nashville, Psychology, Real

Estate, women). (Attachment included).

e) Defendant Sham Malmquist is working in the aviation

industry in Cable Airport in Southern California.

 Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 5 of 13

STATEMENT OF FACTS

Danielle Malmquist (hereinafter referred to as Plaintiff)

who has a very good reputation in both her personal and

professional life, and is well respected in both her local

business community, as well as her local community.

Plaintiff is informed and believes that Defendants made

a combined effort to publicize and disseminate completely false

information and outrageous statements about Plaintiff through

the inflammatory "Blogger" site at the following URL:

http://daniellenicolosi.blogspot.com

The author of the blog had maliciously posted

incriminating words against the Plaintiff. The posts is

reasonably understood to mean that Plaintiff was

psychologically disturbed, a documented criminal with multiple

prior arrests and a person who files false police reports and

police memos on everyone she meets.

That the defendants in this case posted the records of

the plaintiff's arrests, all of which appeared on the blog only

after the arrests were expunged due to a lack of foundation in

the claims. There was also a situation where a police officer

involved in the local department assisted his wife, who was a

private investigator working for Defendant Shem Malmquist

during his divorce from the plaintiff. This assistance included

arrests staged for pure harassment and intimidation rather than

any real evidence of a crime.

 Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 6 of 13

The defendants who published these accounts of

plaintiff's arrests related to the divorce on the

aforementioned blog never even hint at the expungements of the

spurious charges in their blog postings on the "arrests".

The remarks made by the Defendants against the Plaintiff is

imputed by malice with intent to degrade, debased and to injure

the Plaintiff’s good name and reputation and because of this

the Plaintiff’s business was also interfered. This is

cyberspace, a system that accommodates millions and billions

of simultaneous and ongoing individual accesses to and uses of

the internet.

The blog posts also continually allege the Plaintiff has

mental issues and is a “psycho”. The post even argue this

mental deficiency is a certified fact determined by the court

proceedings. Again, the reality is much different. The

resulting damage from these blog posts is growing exponentially

with each day the posts are allowed to remain in the eye of

growing public. Plaintiff continues to suffer irreparable harm

due to the lies presented as facts in these awful and spiteful

posting site.

The cyberspace is a boon to the need of the current

generation for greater information and facility of

communication. But all is not well with the system since it

could not filter out a number of persons of ill will who would

want to use cyberspace technology for mischiefs and crimes.

One of them can, for instance, avail himself of the system to

 Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 7 of 13

unjustly ruin the reputation of another or bully the latter by

posting defamatory statements against him that people can read.

As of today, that the posts on the blog are still viewable

by Public. The public can still view the malicious post which

only means that the defamation in the case at bar is still

existing.

I. STANDARD OF REVIEW FOR PERSONAL JURISDICTION

On a motion to dismiss for lack of personal jurisdiction,

district courts must accept alleged in complaint as true to

the extent they are uncontroverted by defendant’s affidavits;

where plaintiff’s complaint and defendant’s affidavits

conflict, district court must construe all reasonable evidence

in favor of plaintiff. Hoechst Celanese Corp. v. Nylon

Engineering Resins, Inc. 896 F. Supp. 1190, 1192 (M.D. Fla.

1995)

II. LEGAL ARGUMENTS

The term personal jurisdiction refers to the personal

jurisdiction that a court may exercise over a defendant. The

technical legal name for personal jurisdiction is “in personam

jurisdiction”. The United States Supreme Court has stated it

has been recognized since common law times that state courts

may exercise personal jurisdiction over nonresidents where

certain “traditional” bases for personal jurisdiction exist.

See Burnham v. Sup.Ct. (Burnham) (1990) 495 U.S. 604, 609, 110
 Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 8 of 13

S.Ct. 2105, 2110.

The three “traditional” bases for personal jurisdiction

are: (1) service on persons physically present in forum state;

(2) domicile within the state; and (3) consent or appearance

in the action.

THIS COURT HAS SUBJECT MATTER JURISDICTION OVER THIS CASE

AND DEFENDANTS’ MOTION TO DISMISS SHOULD BE DENIED FOR THE

FOLLOWING REASONS:

a. Defendants have family relatives in the State of

Northern California on which they are vising them;

b. Defendant Shem Malmquist have work-related layover in

California.

The District Court of Northern California can have a

jurisdiction over the defendants, when the defendants does

business in the State. The defendant (individual or business)

has engaged in at least a small but significant amount of

activity that constitutes "minimum contacts" in the state in

which you've filed the lawsuit (and the case involves that

activity). The "minimum contacts" requirement generally means

that a defendant must have enough connection to the state where

a case has been filed for a judge to conclude that it's fair

for the state to exercise power over the defendant. See World-

Wide Volkwagen Corp. v. Woodson, 444 U.S. 286 (1980).

In the case at bar, the Defendants adamantly admitted

 Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 9 of 13

that they are under the jurisdiction of United States District

Court of Northern California when they engaged themselves in

entering into a “minimum contract” in the State of California,

to wit:

1. Paragraph 16, page 4 of DECLARATION OF SHEM

MALAMQUIST IN SUPPORT OF SHEM MALMQUIST AND

MEREDITH MALMQUIST’S MOTION TO DISMISS

PLAINTIFF’S COMPLAINT PURSUANT TO FRCP 12 (B)(2)

where the Defendant’s stated: “I do not own any

real property in California. My wife, children

and I visit family in California every year or

two and other occasional visits;

2. I am employed as a pilot for Federal Express,

based in Memphis, Tennessee, and will have the

occasional work-related layover in California.

Numbers 1 and 2 only shows that the Defendant had “Minimal

Contract” in the State of California. The Defendants have

family members who are living in California. There is no

evidence to support that the Defendants in this case

experiences hard time in going to California to visit their

family members. Considering the short-distance from California

to Tennessee or California to Florida, the Defendants can go

back and forth in the State of California. Further, the work

of the Defendant gives him opportunity to visit California

 Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 10 of 13

since he needs to layover in California by reason of his work.

This only shows that the Defendants in this case is within the

jurisdiction of the US District Court of California.

c) Defendants created the website to maliciously harass,

vex, with an intention to degrade, debase, and demean

the intrinsic worth and dignity of the Defendant living

in Northern District of California. The malicious blog

limits its audience in the State of California and any

person who lives in Northern District of California.

The US District Court, Northern District State of

California has personal jurisdiction in the case at bar for

the following reasons:

1.) Upon creating a BlogSpot website which has a link

“http://daniellenicolosi.blogspot.com” or which can be known

as a blog created for Danielle Nicolosi (Hereinafter referred

as the Plaintiff in this case), who was living in California

when the blog was created. It only shows that the authors of

the blog (Hereinafter referred as Defendants in this case)

submits themselves in the jurisdiction of the United States,

Northern District of California. Further, the creation of the

blogspot website does not only attack the credibility and

character of the Plaintiff but also the Plaintiffs assaults

the integrity of the Defendant in her job.

By using a search engine by typing “Danielle Nicolosi” in

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the web browser, there are several links appearing as a result,

one of which is the blogpost that was created to degrade

Defendants reputation. The only individuals that has the

possibility to search Danielle Nicolosi’s in the web browser

are her employers who is in California, her relatives who is

in California, her friends who is in California and any person

who knows her name. It is contrary to human nature for a person

living outside the State of California to search for a

“Danielle Nicolosi” in the web browser without knowing her.

Therefore by creating a blogspot, the audience that was

assumed by the Defendants who will read the posts are those

who are living in California. Hence, the US District Courts,

District of Northern California has personal jurisdiction in

this case.

d) Defendants created an article in the malicious

blogspot2 with the title “DEALING WITH DIABOLIC

DANIELLE WEBLOG” attaching tags/labels in the

blogposts “Con Artists, Danielle Malmquist (The

Plaintiff in this case), Danielle Nicolosi,

Diabolical, Psychopath, Uncategorized) (Architect,

Diabolical, Divorce, Family, Los Angeles

(California), Memphis, Nashville, Psychology, Real

Estate, women). Attached in this plaintiff’s

response to Defendant’s motion to dismiss for lack

2
http://daniellenicolosi.blogspot.com
 Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 12 of 13

of jurisdiction is a copy of an Article with a title

“Dealing with Diabolic Danielle Weblog” as Annex “A”

and made integral part hereof.

The US District Court, District of Northern California

has personal jurisdiction over the case since the tags/labels

indicated in the blogspot has Danielle Nicolosi, Danielle

Malmquist and Los Angeles (referring to California). These are

the tags that are specific to the contents of the blogspot.

By typing the tags/labels in the web browser (like Google,

Mozilla Firefox or Safari), the web gives certain suggestions

of different websites for the keywords used and the related

blog which also contains the certain tags/labels. In the

instant case, by putting Danielle Nicolosi, Danielle Malmquist

and/or Los Angeles in the web browser,

http://daniellenicolosi.blogspot.com will appear as one of

suggested websites.

This only means that the authors of the blog consented

themselves to be under the personal jurisdiction of California

by adding California in its tag/label. Hence, the US District

Court of Northern California has personal jurisdiction over

the matter.

f) Defendant Sham Malmquist is working in the aviation

industry in Cable Airport in Southern California.

There following are the instances on which the

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Defendant had admitted working in California:

i. A blog website with a name “Air Transport

Safety Articles” with a link

https://airlinesafety.blog/about/ authored

by Shem Malmquist (The Defendant in this

case), the author introduced himself as

“Captain Shem Malmquist, FRAeS, has worked

in the aviation industry since 1976 when he

was flying and working at Cable Airport in

Southern California doing airport

maintenance and servicing aircraft. His

experience ranges from teaching aerobatics

and instructing in a wide variety of both

general aviation and transport aircraft to

academic research and safety

investigation.”(Attached herewith and made

integral part hereof as Annex B is a copy

blog posts authored by Shem Malmquist showing

that he is working in the Cable Airport in

California.

ii. A blog website with a name “Signal Hire” and

with link “https://www.signalhire.com/

companies/fedex-express/shem-malmquist-

fraes%27s-email” where the Company Directory

shows Shem Malmquist information stating

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that he is a “Southern California Area Leader

at Air Line Pilots Association” (Attached

herewith and made integral part hereof as

Annex “C” is a copy of a blog posts which

states that he is a Southern California Area

Leader at Air Line Pilots Association).

iii. A pdf file with a title “Learning from

Accidents that are a Consequence of Complex

Systems” showing that Captain Shem Malmquist

introduced Casual Analysis using System

Theory (CAST) at San Francisco. (Attached

herewith and made integral part hereof as

Annex “D” is a copy of a blog posts which

states that he introduced Casual Analysis

using System Theory (CAST) is located in San

Francisco, California).

iv. A blog post stating that their Guest of Honor

was Captain Shem Malmquist talking about

“improvements that have made air travel

safer, and the gaps we now face for

identifying problems that might arise in the

future.” In addition to this, he further

added “How aviation accidents currently

present themselves as interactions of

complex components. Resilience engineering

is an example of a different approach to how

Case 3:17-cv-04831-JD Document 48-3 Filed 01/31/19 Page 15 of 13

we look at complex accidents. And flight

simulators, mitigating lithium battery risk,

and autonomous vehicles, including both

manned and unmanned aircraft.”

v. In a post in

“https://www.linkedin.com/in/shem-

malmquist-fraes/ shows that Shem Malmquist

FRAeS introduced himself as a Pilot,

Professor, Accident Investigator,

Researcher, Author, Speaker and Moderator of

the Bluecoat Project of Cable Airport in

Southern California doing airport

maintenance and servicing aircraft.

vi. That there are similar case filed against

SHEM MALMQUIST regarding support wherein he

stated that he is living in California which

the case is docketed under Case No. KD 056764

filed before Superior Court of the State of

California and for the County of Los Angeles.