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Court papers filed by Ripoffreport.com against Russ Whitney 3 IV. THE EXERCISE OF PERSONAL JURISDICTION OVER DEFENDANTS WOULD NOT VIOLATE DUE PROCESS In determining whether the assertion of personal jurisdiction over Defendants comports with due process, the court must first decide whether Defendants have established "minimum contacts" with Florida. Venetian Salami, 554 So. 2d at 500. Secondly, the court must decide whether the exercise of personal jurisdiction would offend "traditional notions of fair play and substantial justice." Madara v. Hall, 916 F.2d at 1514. "Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he has certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154 (1945). A. Sufficient Minimum Contacts Exist to Satisfy Due Process Requirements The Florida Supreme Court in Venetian Salami, supra, held that the determination of minimum contacts depends upon the standards promulgated in Worldwide Volkswagen Corporation v. Woodson, 444 U.S. 286 (1980) and International Shoe Co. v. Washington, supra. In Woodson, the Supreme Court held that the standard for determining whether sufficient minimum contacts exist to satisfy the due process requirement of the Fourteenth Amendment is whether the defendant's conduct in connection with the forum state is such that he should reasonably anticipate being haled into court in the forum state. 444 U.S. at 297. In International Shoe, the Court required that minimum contacts exist with the forum state so that "the maintenance of the suit does not offend traditional notions of fair play and substantial justice." 326 U.S. at 316. Subsequently, in Burger King Corporation v. Rudzewicz, 471 U.S. 462 (1985), the Supreme Court held that a non-resident defendant must purposely establish a substantial connection with the forum state, and that random fortuitous or attenuated contacts would not suffice. Id. at 475. "Although the concept of foreseeability is not irrelevant to this analysis, the kind of foreseeability critical to the proper exercise of personal jurisdiction is not the ability to see that the acts of third persons may affect the forum, but rather that the defendant's own purposeful acts will have some effect in the forum." Madara, 916 F. 2d at 1516-1517 (quoting Asahi Metal Indust. Co. v. Superior Court, 480 U.S. 102, 112 (1987)). The Court must also consider the "quality, nature, and extent of the activity in the forum, the foreseeability of consequences within the forum from activities outside it, and the relationship between the cause of action and the contacts, to determine whether the defendant's actions constitute 'purposeful availment.' " Miot v. Kechijian, 830 F.Supp. 1460, 1464 (S.D. Fla. 1993); citing Hydrokinetics, Inc. v. Alaska Mechanical, Inc., 700 F.2d 1026, 1028 (5th Cir. 1983), cert. denied 466 U.S. 962 (1984). The "minimum contacts" requirement "is satisfied if the defendant purposefully directs activities at Florida and litigation arises out of those activities, or the defendant purposefully avails himself of the privilege of conducting activities within the forum state." Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So. 2d 716, 719 (Fla. 4th DCA 1998); Hanson v. Denckla, 357 U.S. 235 (1958). The Supreme Court of Florida has held that by committing a tort in Florida a nonresident establishes sufficient "minimum contacts" with Florida to justify the acquisition of in personam jurisdiction over him by personally serving him outside the state. Godfrey v. Neumann, 373 So. 2d 920 (Fla. 1979). Further, the Supreme Court of Florida specifically found that a tortious act can occur in Florida through the nonresident defendant's telephonic, electronic or written communications into Florida. Wendt v. Horowitz, 822 So. 2d 1252 (Fla. 2002). Applying the standards promulgated by Florida courts, Defendants' dissemination of defamatory information in the State of Florida is sufficient to establish minimum contacts with Florida to justify acquisition of personal jurisdiction. Furthermore, in Murante v. Pedro Land, Inc., the district court held that even though an out-of-state defendant maintained no offices in Florida, had no agents in Florida and was not authorized to do business in Florida, the defendant had enough minimum contacts with the state such that the court could exercise personal jurisdiction over the defendant. 761 F. Supp. 786, 790 (S.D. Fla. 1991). The court found that the out-of-state defendant's placement of numerous billboards along a 200 mile stretch adjacent to 1-95, running through North and South Carolina, was sufficient to satisfy the minimum contacts test and subject the defendant to the jurisdiction of the Florida courts. Id. The court reasoned that since I-95 was a primary passage way for Floridians traveling to and from destinations along the eastern seaboard, it was evident that the defendant was seeking to elicit business from persons traveling between Florida and New York. Id. Therefore, the court found that minimum contacts existed. By analogy, Defendants provide Floridians access to the false and defamatory information published on their website as Defendants know that the only way for Floridians to get Defendants' "Rip Off Report" on Florida corporations is through Defendants' website. It is foreseeable that Defendants' website would be viewed in

the State of Florida and the false and defamatory information regarding Plaintiffs contained in the "Rip Off Report" would cause harm to Plaintiffs in Florida. In fact, Defendants purposefully programmed their website to contain the key word "Florida" in their meta-tags so their website would be listed as a top result when Florida consumers are researching Florida corporations. Therefore, it is reasonable for Defendants to anticipate that it may be sued in the State of Florida for publishing the defamatory stories about Florida corporations. In Bangor Punta Operations, Inc. v. Universal Marine Co., the Fifth Circuit Court of Appeals found sufficient contacts over an out of state Defendant even given their limited contacts to the State of Florida, noting: As International Shoe indicated and subsequent cases have held, a single tortious act can support in personam jurisdiction, consistent with the Constitution, subject to the limitation that "there (must) be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235 (1958). In the case at bar, an official of the defendant intended to and did send or cause to be sent a false advertisement and infringing products into Florida and by so doing clearly satisfied the above standards ... We thus hold that the District Court properly had in personam jurisdiction over the foreign corporate defendant in this case based on the Florida long-arm statute. 543 F.2d 1107, 1110 (5th Cir. 1976) [FN2]. FN2. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. In the case, sub judice, the affidavit proffered by Plaintiffs establish that Defendants website provides access to the false and defamatory information published in Defendants' "Rip Off Reports" in the State of Florida, which has caused and continues to cause injury to Plaintiffs in the State of Florida. Defendants have continuously engaged in contacts with the State of Florida through their Internet website. Thus Defendants' argument that they have no ties whatsoever to the State of Florida is clearly false. B. Even if the Minimum Contacts Test Were Not Met, Considerations of Fair Play and Substantial Justice Support Jurisdiction Over Defendants In the unlikely event that this Court should find that the "minimum contacts" test has not been met, due process standards permit consideration of "fair play and substantial justice" in addition to minimum contacts. Sun Bank, N.A. v. E.F. Hutton & Co., 926 F.2d 1030, 1034-1035 (11th Cir. 1991). These factors can at times serve to establish "the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required." Burger King Corp. v. Rudzewicz, 471 U.S. at 477. These factors include: [1] the burden on the defendant, [2] the forum State's interest in adjudicating the dispute, [3] the plaintiffs interest in obtaining convenient and effective relief, [4] the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and [5] the shared interest of the several States in furthering fundamental social policies. Sun Bank, N.A. v. E.F. Hutton & Co., 926 F.2d at 1035 (quoting Burger King Corp. v. Rudzewicz). As discussed supra, Florida courts have uniformly found that they have an interest in adjudicating disputes arising from publication, dissemination or communication of defamatory information in Florida. See, e.g., Becker v. Hooshman, M.D., 841 So. 2d 561 (Fla. 4th DCA 2003); Silver v. Levinson, 648 So. 2d 240 (Fla. 4th DCA 1994). Therefore, Florida has a special interest in the adjudication of this suit. Furthermore, it is evident that the burden on Defendants in defending the suit in Florida is not as extreme, and pales when compared to the burden that would be imposed on Plaintiffs in pursuing this action in Arizona. By prosecuting this case in Florida, Plaintiffs' interest in obtaining convenient and effective relief would be effectuated as a majority of the witnesses involved in this case are based within the State of Florida. Finally, Defendants' participation in the present suit would also further the interstate judicial system's interest in obtaining the most efficient resolution of controversies. Accordingly, considerations of fair play and substantial justice support this court's assertion of personal jurisdiction over Defendants. CONCLUSION For all the reasons set forth herein, and the attached affidavit and exhibits, Plaintiffs respectfully requests that Defendants' Motion to Dismiss Complaint for Lack of Personal Jurisdiction be DENIED. Appendix not available. Motions, Pleadings and Filings (Back to top) o 2004 WL 2739112 (Trial Motion, Memorandum and Affidavit) Defendants' Reply in Support of Motion to Dismiss Complaint (Aug. 26, 2004) o 2004 WL 2739089 (Trial Motion, Memorandum and Affidavit) Defendants' Motion to Dismiss Complaint for Lack of Personal Jurisdiction with Supporting Memorandum of Law (Jun. 28, 2004) o 2004 WL 2739062 (Trial Pleading) Complaint (Jan. 27, 2004) o 2:04CV00047 (Docket) (Jan. 27, 2004) END OF DOCUMENT For opinion see 347 F.Supp.2d 1242 Motions, Pleadings and Filings United States District Court, M.D. Florida. WHITNEY INFORMATION NETWORK, INC., a Colorado corporation, and Russ Whitney, an individual, Plaintiffs, v. XCENTRIC VENTURES, LLC, an Arizona limited liability company; Badbusinessbureau.org, an Arizona limited liability company; and Ed Magedson, an individual, Defendants. Case No. 2:04-cv-47-FtM-29-SPC. June 28, 2004. Defendants' Motion to Dismiss Complaint for Lack of Personal Jurisdiction with Supporting Memorandum of Law Defendants XCENTRIC VENTURES, LLC, an Arizona limited liability company ("Xcentric"); BADBUSINESSBUREAU.ORG, an Arizona limited liability company ("BBB"); and ED MAGEDSON, an individual ("Magedson"), (collectively "Defendants"), through their undersigned counsel and pursuant to Rule 12(b)(2), Fed.R.Civ.P., Fla. Stat. ß 48.193(1) and Rule 3.01 of the Local Rules of the United States District Court for the Middle District of Florida, file this motion and supporting memorandum of law to dismiss the Complaint filed in this action by Plaintiffs WHITNEY INFORMATION NETWORK, INC., a Colorado corporation ("WINI"), and RUSS WHITNEY, an individual ("Whitney") (collectively "Plaintiffs"). As set forth below in the supporting memorandum of law, this Court lacks personal jurisdiction over all Defendants and as such all claims against Defendants should be dismissed for lack of personal jurisdiction. MEMORANDUM OF LAW I. INTRODUCTION. This Court may not properly exercise personal jurisdiction over non-resident Defendants Xcentric, BBB and Magedson because the exercise of personal jurisdiction is not proper under Florida's long-arm statute and Defendants Xcentric, BBB and Magedson, each non-resident Defendants, lack sufficient minimum contacts such that the exercise of personal jurisdiction over these Defendants would violate constitutional due process guarantees. In their Complaint, Plaintiffs allege in conclusory fashion, without any specific factual allegation, that Defendants are subject to the jurisdiction of this Court because they each allegedly (1) "Operate[], conduct[], engage[] in or carr[y] on a business or business ventures within this state through [[] Internet websites" (Complaint, &Mac182; &Mac182; 5(a), 6(a) and 7(a)); (2) "Infringed upon Plaintiffs (sic) trademarks in violation of 15 U.S.C. ß 1114 and 15 U.S.C. ß 1125 and published and continue[] to publish infringing marks in Florida" (Complaint, &Mac182; &Mac182; 5(b), 6(b) and 7(b)); (3) "committed and continue[] to commit a tort in Florida by publishing false and defamatory information on [their] websites about Plaintiffs, directed at Florida and causing injury in Florida that give rise to a potential claim cognizable in Florida" (Complaint, &Mac182; &Mac182; 5(c), 6(c) and 7(c)). In addition, Plaintiffs allege that the Court has personal jurisdiction over Defendants as they allegedly "infringed on Plaintiffs' trademarks by intentionally publishing Plaintiffs' trademarks in Florida on their Internet website." (Complaint at &Mac182; 8). Plaintiffs further claim that "Defendants' use of Plaintiffs' trademarks is for interstate commercial activity and such use is a substantial aspect of Defendants' conduct giving rise to Plaintiffs' claims" (Complaint at &Mac182; 8); that Defendants "published defamatory information and clearly directed said information at a corporation in Florida, via their Internet websites ... [and thereby allegedly caused] harm [which] has occurred and will continue to occur in Florida" (Complaint &Mac182; 10, 11), the alleged infringement and alleged publication is causing injury in Florida (Complaint at &Mac182; 12). Moreover, Plaintiffs allege in conclusory fashion that "Defendants engaged in and continue to engage in substantial activity within the State of Florida by, inter alia, engaging in and continuing to engage in solicitation or service activities within the State of Florida." (Complaint at &Mac182; 13). [FN1] FN1. Paragraphs 10-13 are found within the "Venue" and not jurisdictional allegations of the Complaint. While Plaintiffs have attempted to track portions of Florida's long-arm statute in the Complaint's conclusory jurisdictional allegations, the Complaint fails to allege facts sufficient to warrant the exercise of personal jurisdiction over Defendants Xcentric, BBB and Magedson.. Simply stated, the allegations in the Complaint are insufficient to confer personal jurisdiction over the Defendants in Florida because none of the Defendants have any connection to the State of Florida. Moreover, these allegations ignore the fact that the exercise of personal jurisdiction is prohibited by the Due Process Clause of the United States Constitution. As such, Plaintiffs have failed to meet their burden of alleging a cognizable basis for the exercise of this Court's personal jurisdiction over the Defendants. Accordingly, the Defendants' Motion to Dismiss for Lack of Personal Jurisdiction must be granted in it entirety. II. THE COMPLAINT MUST BE DISMISSED PURSUANT TO RULE 12(b)(2), FED.R.CIV.P. Under Florida law, Plaintiffs bear the burden of proving personal jurisdiction. Meterlogic, Inc. v. Copier Solutions, Inc., 126 F. Supp.2d 1346, 1352 (S.D. Fla. 2000) citing Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996). Plaintiffs' "burden in alleging personal jurisdiction is to set forth sufficient material facts to establish [a] basis for exercise of such jurisdiction." Future Tech. Today, Inc. v OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). The Complaint fails to set forth sufficient material facts to establish a basis for the exercise of personal jurisdiction under the well-established precedent of this Court. This Court must conduct a two-part analysis in evaluating the sufficiency of the facts set forth by Plaintiff in their attempt to show this Court has personal jurisdiction. First, the plaintiff must show that the nonresident defendant has purposefully established "minimum contacts" with Florida. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945); Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 105, 107 S.Ct. 1026, 1028, 94 L.Ed.2d 92, 100 (1987); Future Technology Today, Inc. v. OSF Healthcare Systems, 218 F.3d 1247, 1249 (11th Cir. 2000)(citing, Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623 (11th Cir. 1996)). That is, this Court must consider whether the Florida long-arm statute provides a statutory basis for jurisdiction. Cable/Home Communication Corp. v Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990). The Supreme Court of the United States has long recognized that an essential goal of the minimum contacts test is to protect the nonresident defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490, 498 (1980). This goal requires this Court to determine whether the nonresident defendant has purposely availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528, 541-42 (1985). The "minimum contacts" aspect of due process can be satisfied by either finding general jurisdiction or specific jurisdiction." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8, 104 S.Ct. 1868, 1872 n.8, 80 L.Ed.2d 404, 411 n.8 (1984); World-Wide Volkswagen, 444 U.S. at 293-94, 100 S.Ct. at 565-66, 62 L.Ed.2d at 498-99. Section 48.193(1), Florida Statutes sets forth the possible bases for the assertion of specific jurisdiction [FN2] over a non-resident defendant, while section 48.193(2), Florida Statutes provides the foundation for the assertion of general jurisdiction. Second, this Court must consider and determine separately whether Plaintiffs showed that the "maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " e.g. that it does not violate the due process clause of the Fourteenth Amendment and related precedent. International Shoe, 326 U.S. at 316, 66 S.Ct. at 158, 90 L.Ed. at 102; Cable/Home, 902 F.2d at 855; Future Technology, supra, citing Sculptchair, 94 F.3d at 626; International Shoe v. Washington, 326 U.S. 310 (1945).

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