Case 2:17-cv-00105-SAB

Document 12

Filed 04/14/17

1 Kevin J. Curtis, WSBA No. 12085
WINSTON & CASHATT, LA WYERS, a
2
Professional Service Corporation
3 601 W. Riverside, Ste. 1900
Spokane, WA 99201
4 Telephone: (509) 838-6131
5

6
7
8
9
10
11
12

Charles L. Babcock IV (pro hac vice application to be filed)
cbabcock@jw.com
Texas Bar No. 01479500
William J. Stowe (pro hac vice application to be filed)
wstowe@jw.com
Texas Bar No. 24075124
JACKSON WALKER L.L.P.
1401 McKinney Street
Suite 1900
Houston, Texas 77010
(713) 752-4360 (telephone)
(713) 308-4116 (facsimile)

13
14

Attorneys for Defendants International Data
Group, Inc., CXO Media, Inc. and Steve Ragan

15
16

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

17
18
19
20

RIVER CITY MEDIA, LLC, a Wyoming
limited liability company, MARK
FERRIS, an individual, MATT FERRIS,
an individual, and AMBER PAUL, an
individual,

21
22
23

vs.

No. 2:17-cv-105-SAB

DEFENDANT INTERNATIONAL DATA
GROUP, INC.'S NOTICE, MOTION AND
MEMORANDUM TO DISMISS FOR
Plaintiffs, LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO
DISMISS FOR F AlLURE TO STATE A
CLAIM

24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
F AlLURE TO STATE A CLAIM
PAGE I

A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America FIMnclal Center
601 West Riverside
Spokane, Washington 99201
{509) 838-6131

 Case 2:17-cv-00105-SAB

1

2
3

4
5

Document 12

KROMTECH ALLIANCE
CORPORATION, a German corporation,
CHRIS VICKERY, an individual, CXO
MEDIA, INC., a Massachusetts
corporation, INTERNATIONAL DATA
GROUP, INC., a Massachusetts
corporation, and STEVE RAGAN, an
individual, and DOES 1-50,

Filed 04/14/17

With Oral Argument
Hearing Date:
July 13, 2017@ 11:00 a.m.
Spokane, Washington

6
7

Defendants.

8

Defendant International Data Group, Inc. ("IDG") moves the Court for an order

9

dismissing IDG from this case on the grounds that the Court lacks personal jurisdiction

10

pursuant to Fed. R. Civ. P. 12(b)(2), or alternatively, Plaintiffs fail to state a claim. This

11
12
13
14

15

motion is accompanied and supported by the Declaration of Edward Bloom and the
following memorandum of authorities.

Summary of Motion
The Court should dismiss Plaintiffs' Complaint against IDG for lack of personal

16
17

jurisdiction because Plaintiffs cannot meet their burden to establish either general

18

jurisdiction or specific jurisdiction. Plaintiffs do not even allege general jurisdiction. But

19

even if they had so alleged, they cannot show that IDG' s "affiliations with the State ...

20
21

22
23

24
lOG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
ORAL TERNA TIVELY, MOTION TO DISMISS FOR
FAlLURE TO STATE A CLAIM
PAGE2

P'(l~~?f~
A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Anandal Center
60t Wes1 Riverside
Spokane, Washington 99201
(509) 838·6131

 Case 2:17-cv-00105-SAB

1

2

Document 12

Filed 04/14/17

are so constant and pervasive 'as to render [it] essentially at home in the forum State. "' 1
Plaintiffs admit that IDG is incorporated in Massachusetts. Complaint (ECF No. 1) ~ 23.

3
4

IDG has its principal place of business in Massachusetts. It has no offices in Washington,

5

no business operations in Washington, and no employees in Washington. Plaintiffs also

6

cannot meet their burden of establishing specific jurisdiction because IDG has not

7

"purposefully directed" any activities to Washington, and Plaintiffs' claims do not arise

8
out of any forum-related activities of IDG.

Additionally, the exercise of jurisdiction

9
10

would be unreasonable under the seven-factor test employed by the Ninth Circuit.

11

Accordingly, the Comi should dismiss the Complaint because Plaintiffs cannot meet their

12

burden of establishing personal jurisdiction. The Court should also award IDG its

13
14
15
16
17

attorney's fees for prevailing on its Rule 12(b)(2) motion pursuant to RCW 4.28.185(5),
which federal courts in Washington apply.
Alternatively, the Court should dismiss Plaintiffs' Complaint against IDG for
failure to state a claim.

Plaintiffs allege no facts establishing that IDG engaged in,

18
participated in, or had any connection to any of the allegedly unlawful acts, or that IDG
19
20
21

22

'Daimler AG v. Bauman, --- U.S. ----, 134 S. Ct. 746, 751 (2014) (quoting Goodyear

23

Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (20 11 )).

24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGE3

A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 W&St Riverside

Spokane. WaShington 99201
(509) 838·6131

 Case 2:17-cv-00105-SAB

1

Document 12

Filed 04/14/17

had knowledge of the allegedly unlawful acts. Plaintiffs' conclusory legal assertions

2

with absolutely no factual allegations are insufficient.

3

Argument

4
5

1.

The Court Should Dismiss the Complaint Against IDG for Lack of Personal
Jurisdiction.

6
"Where a defendant moves to dismiss a complaint for lack of personal jurisdiction,

7

8

the plaintiff bears the burden of demonstrating that jurisdiction is appropriate."

9

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).

10

A

plaintiffs allegations are taken as true only if they are uncontroverted by the defendants.

11

12

Id.

13

Here, Plaintiffs make almost no allegations relating to personal jurisdiction.

14

Instead, the most Plaintiffs claim relating to IDG is that IDG is the "parent corporation"

15

of Defendant CXO Media, Inc. ("CXO"/; that each defendant "aided and abetted" the

16
17

actions of the other defendants; and that each defendant was the agent of the others and

18

was acting within the course and scope of agency in doing the things alleged in the

19

Complaint. Complaint~ 25. Plaintiffs also allege that each defendant had knowledge of,

20

approved, or ratified the conduct of others, but provides no factual details.

21

22
23
24

2

Complaint,~ 23.
!DO'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGE4

~~~'B'ada/t
A PROFESSIONAL SERVICE CORPORATION
1000 Bank of America Financial Center
601 West Riverside
Spokane, Washinglon 99201
(509) 838.6131

 Case 2:17-cv-00105-SAB

Filed 04/14/17

Plaintiffs' allegations are conclusory and not entitled to any weight. 3 Nevertheless,

1

2

Document 12

IDG has controverted Plaintiffs' allegations through the Declaration of Edward Bloom,

3

4

which establishes that IDG is not the parent corporation of CXO; IDG did not aid and

5

abet the actions of any other Defendant; none of the other Defendants have ever acted as

6

IDG's agent (nor has IDG acted as agent of any of the other Defendants); and IDG did

7

not know of or approve of any of the acts alleged in the Complaint. Bloom Dec!.~~ 4-5.

8
Personal jurisdiction over a nonresident defendant is only proper if a rule or statute

9
10

potentially confers jurisdiction over the defendant, and the exercise of personal

11

jurisdiction over the defendant does not offend the principles of Fifth Amendment due

12

process. See Doe v. Unocal Corp., 248 F.3d 915, 921-22 (9th Cir. 2001), abrogated on

13
14
15

other grounds as recognized by Williams v. Yamaha Motor Co., 851 F.3d 1015 (9th Cir.
2017).

Where, as here, there is no applicable federal statute governing personal

16
17
18

'See, e.g., Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th
Cir. 2001); see also Mirza Minds Inc. v. Kenvox US. L.L.C., No. 2:15-CV-00053-SAB,

19
2015 WL 6693689, at *2 (E.D. Wash. Nov. 2, 2015) (granting Defendant Herrera's
20
21

motion to dismiss and noting "Plaintiff only makes bare assertions that David Herrera

22 participated in the alleged conspiracy and the legal conclusion that Herrera conducted
23

business in Washington") (unpublished).

24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
F AlLURE TO STATE A CLAIM
PAGES

~~~~adatc
A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riverside
Spokane, Washington 99201
(509} 83fJ.6131

 Case 2:17-cv-00105-SAB

Document 12

Filed 04/14/17

1 jurisdiction, the district court applies the law of the state in which the district court sits.

2

See Fed. R. Civ. Pro. 4(k)(1)(A). Washington state law, however, authorizes the exercise

3
4

of personal jurisdiction to the full extent pennitted by the Due Process Clause of the

5

United States Constitution. Key Tronic Corp. v. SMART Techs. ULC, No. 2:16-CV-

6

0028-TOR, 2016 WL 7104252, at *3 (E.D. Wash. Dec. 5, 2016) (citation omitted).

7

Personal jurisdiction comports with federal due process only when the defendant

8
9
10

has "minimum contacts" with the forum state "such that the maintenance of the suit does
not offend 'traditional notions of fair play and substantial justice.'" Picot v. Weston, 780

1 1 F .3d 1206, 1211 (9th Cir. 20 15) (citation omitted). Personal jurisdiction may be based on

12

either general jurisdiction or specific jurisdiction. See, e.g., Schwarzenegger, 374 F.3d at

13
14
15
16
17

801-07. As demonstrated below, Plaintiffs cannot meet their burden of demonstrating
that either general or specific jurisdiction applies.

A.

Plaintiffs Do Not Allege, Much Less Meet Their Burden, of
Establishing General Jurisdiction.

18

First, Plaintiffs do not allege, much less meet their burden of establishing, general

19

jurisdiction. The Supreme Court opinion in Daimler AG v. Bauman, ---U.S. ----, 134 S.

20

Ct. 746 (2014) and its predecessor Goodyear "arguably tightened the general jurisdiction

21

22
23
24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
ORALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGE6

~~~'6'ado#
A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Flnarn:lal Center
601 West RiverSide
Spokane, Washington 99201
(509) 838-6131

 Case 2:17-cv-00105-SAB

1

2

Document 12

Filed 04/14/17

standard," as numerous courts have recognized. 4 In Daimler AG, the Court rejected the
argument that general jurisdiction exists in any state in which a corporation "engages in a

3
4

substantial, continuous, and systematic course of business." !d. at 760-61. Instead, the

5 Court held that general jurisdiction exists only where the defendant is "fairly regarded as
6

7

at home," and for a corporation, "the place of incorporation and principal place of

business are 'paradig[m] ... bases for general jurisdiction."' !d. at 760 (citation omitted)

8
9

(alteration in original) (emphasis added). "Those affiliations have the virtue of being

10

unique-that is, each ordinarily indicates only one place-as well as easily

11

ascertainable." !d. Although the Court recognized that there may be a rare situation

12

where a corporation is subject to general jurisdiction in a state other than the state of its

13
14

incorporation or principal place of business, it stated that it would have to be an

15
16

'See, e.g., Gonzales v. Seadrill Americas, Inc., No. 3:12-CV-00308, 2014 WL 2932241,

17

at *5 (S.D. Tex. June 27, 2014), where Judge Costa, who was elevated to the U.S. Court

18

of Appeals for the Fifth Circuit, noted that - at that time - "only !l!:!Jl. federal court has

19
20

apparently found jurisdiction ... since Daimler" outside of a forum where the defendant

21

was incorporated or maintains its headquarters, "even though more than 75 federal cases

22

have already cited Daimler," and regarding that one case, Judge Costa described it as an

23

"outlier." !d. at *3 n.4 (emphasis added).

24
!DO'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
ORALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGE7

~~~'lf'~
A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riverside
Spokane, Washington 99201
(509) 838·6131

 Case 2:17-cv-00105-SAB

1

2

Document 12

Filed 04/14/17

"exceptional case ...." I d. at 761 n.l9. The standard for general jurisdiction is a "high"
one. King v. Am. Family Mut. Ins. Co., 632 F.3d 570, 579 (9th Cir. 2011); see also

3
4

5
6
7

Brand v. Menlove Dodge, 796 F .2d 1070, 1073 (9th Cir. 1986) (collecting cases where

general jurisdiction was denied despite defendants' significant contacts with the forum).
Applying the foregoing standard for general jurisdiction to IDG, Plaintiffs cannot
meet their burden of establishing general jurisdiction. Plaintiffs admit that IDG is

8
9

10

incorporated in Massachusetts. See Pl.'s Compl.
business in Massachusetts. Bloom Dec!.

~

~

23. IDG has its principal place of

2. Plaintiffs do not plead that IDG is "at

11 home" in Washington. IDG does not have any offices in Washington, does not have any

12

employees in Washington, has no business operations in Washington, derives no income

13
14

from any operations in Washington, and does not own any real property in Washington.
~

3. Plaintiffs have thus not alleged, much less met their burden, of establishing

15

See id.

16

general jurisdiction. 5

17
18
19
20
21

' Plaintiffs also cannot establish general jurisdiction because the exercise of jurisdiction
would not be "reasonable" as explained in further detail below under Section (B)(iii)

22 under specific jurisdiction. The "reasonableness" requirement applies to both general
23

jurisdiction and specific jurisdiction. See Amoco Egypt Oil Co. v. Leonis Nav. Co., Inc.,

24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGES

~t?tdUm~'tl~
A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riverside
Spokane, Washingtoo99201
(509) 838-6131

 Case 2:17-cv-00105-SAB

1

2

B.

Document 12

Filed 04/14/17

Plaintiffs Cannot Meet Their Burden of Establishing Specific
Jurisdiction.

3

Additionally, Plaintiffs cannot meet their burden of establishing specific, or "case-

4

linked," jurisdiction. To establish minimum contacts necessary to support specific

5

jurisdiction, a three-part test must be satisfied:

6
7

8
9
10
11

12

(1) The non-resident 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 defendant's
forum-related activities; and
(3)
the exercise of jurisdiction must comport with fair play and substantial
justice, i.e. it must be reasonable.

13

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (emphasis

14

added) (citation omitted). None of the three requirements is satisfied in this case.

15

(i)

"Purposeful Direction" Requirement Not Satisfied.

16
First, the "purposeful direction" requirement of specific jurisdiction is not satisfied.
17
18

"To establish purposeful direction, the plaintiff must show that the defendant committed

19

an intentional act, expressly aimed at the forum state, causing harm that the defendant

20

knows is likely to be suffered in the forum state." Microsoft Corp. v. Commc'ns & Data

21

22
1 F.3d 848, 851 (9th Cir. 1993) (noting reasonableness requirement applies to the
23
24

"general jurisdiction analysis," not just specific jurisdiction analysis).
lOG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAlLURE TO STATE A CLAIM
PAGE9

~~~'lf'~
A PROFESSIONAL SERVICE CORPORATION
1900 Bank of AmeriCa Financial Center
601 West Rlverskle
Spokane, WaShington 99201
(509) Ssa-.&131

 Case 2:17-cv-00105-SAB

Document 12

Filed 04/14/17

1 Sys. Consultants, Inc., 127 F. Supp. 3d 1107, 1114 (W.D. Wash. 2015). Here, Plaintiffs

2

do not and cannot allege that IDG undertook any actions relating to this suit, let alone

3
4

actions aimed at Washington causing harm that IDG knew was likely to be suffered in

5

Washington. Prior to the filing of this lawsuit, IDG did not know that Plaintiff River City

6

Media, LLC claimed to have its principal place of business in Washington, and IDG

7

never had any role in the publication of either article alleged in the Complaint, including

8
9

the article allegedly published by CXO (which Plaintiffs erroneously state is IDG's
~

10

subsidiary). See Bloom Dec!.

11

(which it is not), "[t]he existence of a relationship between a parent company and its

12

5. Notably, even if CXO were a subsidiary of IDG

subsidiaries is not sufficient to establish personal jurisdiction over the parent on the basis

13
14

of the subsidiaries' minimum contacts with the forum." Doe v. Unocal, 248 F.3d 915,

15

925 (9th Cir. 2001 ), abrogated on other grounds as recognized by Williams v. Yamaha

16

Motor Co., 851 F.3d 1015 (9th Cir. 2017). Plaintiffs do not allege alter ego, much less

17

allege the overwhelming control required for alter ego.

18
Because IDG has not committed an intentional act expressly aimed at Washington,
19
20

IDG has not "purposefully directed" any activities toward Washington, or otherwise

21

purposefully availed itself of the benefits and protections of Washington law.

22
23
24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGEIO

A PROFESSIONAL SERVICE CORPORAllON
1900 Bank ol America Financial Center
601 West Riverside
Spokane, Washington 99201
{509) 838·6131

 Case 2:17-cv-00105-SAB

1

(ii)

2

Document 12

Filed 04/14/17

Plaintiffs' Claims Do Not "Arise Out of Forum-Related
Activities."

3

Additionally, there is no specific personal jurisdiction because Plaintiffs' claims do

4

not arise out of any forum-related activities of IDG, which is the second requirement of

5

specific jurisdiction. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802

6
7

(9th Cir. 2004).

As noted, IDG has never had anything to do with Vickery or any
~

8

activities directed to any Plaintiff. See Bloom Dec!.

9

related activities" from which Plaintiffs' claims could possibly arise.

10
II

12

(iii)

4. Thus, there are no "forum-

The Exercise of Personal Jurisdiction Would
"Reasonable."

Not Be

Finally, Plaintiffs cannot meet their burden of establishing specific jurisdiction

13
14

over IDG because the exercise of personal jurisdiction would not be "reasonable." To

15

exercise general or specific jurisdiction, the exercise of jurisdiction must be "reasonable."

16

See Amoco Egypt Oil Co. v. Leonis Nav. Co., Inc., 1 F.3d 848, 851 (9th Cir. 1993)

17

(noting reasonableness requirement applies to the "general jurisdiction analysis," not just

18
19

specific jurisdiction analysis); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,

20

802 (9th Cir. 2004) (applying requirement in the context of specific jurisdiction). In

21

evaluating reasonableness, courts balance seven factors: (1) the extent of the defendants'

22

purposeful interjection into the forum state's affairs; (2) the burden on the defendants of

23
24

defending in the forum; (3) the extent of conflict with the sovereignty of the defendants'
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
ORALTERNATIVEL Y, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGE 11

A PROFESSlONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riverside
SpOkane, WaShington 99201
(509) 838-6131

 Case 2:17-cv-00105-SAB

1

2

Document 12

Filed 04/14/17

state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient
judicial resolution of the controversy; (6) the importance of the forum to the plaintiffs

3
4

5

6
7

interest in convenient and effective relief; and (7) the existence of an alternative forum.

See Amoco Egypt Oil Co., 1 F.3d at 851.
Here, the extent of IDG's purposeful interjection into Washington is nonexistent,
given that IDG - which is a holding company - has never assisted, contributed to,

8
9

facilitated, or in any other way aided or abetted Vickery or any of the Other Defendants

See

10

with any of the alleged actions claimed in Plaintiffs' Complaint in this matter.

11

Bloom Dec!.~ 4. Additionally, the burden on IDG in defending in Washington would be

12

significant. See id.

~

6. IDG is a Massachusetts corporation having its principal place of

13

14

business in Massachusetts. !d.

~

2. Because IDG's representatives are in Massachusetts

15

and will rely upon documents primarily located in Massachusetts, 6 there would be

16

significant efficiencies in litigating this dispute in Massachusetts, which is an available

17

alternative forum. Finally, Washington has no unique interest in adjudicating the dispute

18
as many of the claims are based on federal, not state, law. And, even as to the state law
19
20

claims, Plaintiffs do not even specify the state under whose laws the claims are brought.

21

22
23

'See Bloom Dec!.

~

6.

24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
F AlLURE TO STATE A CLAIM
PAGE12

A PROFESSIONAL SERVICE CORPORATION
1900 Bank o1 AmeriCa Financial Center
601 West Riverside
Spokane, Washington 99201
{509) 638·6131

 Case 2:17-cv-00105-SAB

1

2

See, e.g.,

Complaint~~

Document 12

Filed 04/14/17

118-58. The state-law claims are generic and are recognized in

most U.S. jurisdictions.

3
4

Thus, the Court should dismiss Plaintiffs' Complaint for lack of personal

5

jurisdiction because Plaintiffs cannot meet their burden of establishing either general

6

jurisdiction or specific jurisdiction: IDG is not incorporated in and does not have its

7

principal place of business in Washington; IDG has not "purposefully directed" any

8

9

activities to Washington or otherwise purposefully availed itself of the benefits and

10

protections of Washington law; Plaintiffs' claims do not arise out of any forum-related

11

activities ofiDG; and the exercise of jurisdiction would be unreasonable.

12

c.

IDG is Entitled to Its Attorney's Fees.

13
14

"Under [RCW § 4.28.185(5)], courts are allowed to award attorney's fees to
15

defendants who-after being hailed into court under the long-arm statute--prevail on a

16

12(b)(2) motion to dismiss." Hunter v. Ferebauer, 980 F. Supp. 2d 1251, 1259 (E.D.

17

Wash. 2013) (citation omitted). Section 4.28.185(5) provides that if a Defendant prevails

18
after being served out of state on one of the causes of action enumerated in the statute, the
19
20
21

22
23

Defendant may recover fees:
In the event the defendant is personally served outside the state on causes of
action enumerated in this section, and prevails in the action, there may be
taxed and allowed to the defendant as part of the costs of defending the
action a reasonable amount to be fixed by the court as attorneys' fees.

24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
ORAL TERNATIVEL Y, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGE 13

A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 Wesl Riverside
Spokane, Washington 9920i
(509) 838·6131

 Case 2:17-cv-00105-SAB

I

2

Document 12

Filed 04/14/17

RCW § 4.28.185(5). One ofthe enumerated causes of action is "[t]he commission of a
tortious act within this state ...." I d. § 4.28.185(1 )(b). Since Plaintiffs have asserted

3

4

tort claims against IDG, and since IDG should prevail on its Rule 12(b)(2) motion, the

5

Court should award IDG its reasonable attorney's fees.

6

2.

7

The Court Should Dismiss the Complaint for Failure to State a Claim.
Alternatively, the Court should dismiss Plaintiffs' Complaint against IDG under

8
Rule 12(b)(6) for failure to state a claim. "To survive a motion to dismiss, a complaint
9
10

must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is

11

plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must

12

allege "more than labels and conclusions, and a formulaic recitation of the elements of a

13
14

cause of action will not do .... " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

15

(2007). Importantly, the court need not accept as true conclusory legal allegations cast in

16

the form of factual allegations. See, e.g., Moss v. United States Secret Service, 572 F.3d

17

962, 969 (9th Cir. 2009) ("[F]or a complaint to survive a motion to dismiss, the non-

18
conclusory 'factual content,' and reasonable inferences from that content, must be
19
20

plausibly suggestive of a claim entitling the plaintiff to relief," citing Iqbal and

21

Twombly). "A claim has 'facial plausibility' when the party seeking relief"pleads factual

22

content that allows the court to draw the reasonable inference that the defendant is liable

23
24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGEI4

~~~?!~
A PROFESSIONAl SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riverside
Spokane, Washington 99201
{509) 838·6131

 Case 2:17-cv-00105-SAB

Document 12

Filed 04/14/17

1 for the misconduct alleged." Kanam v. Dep't ofNat. Res., No. C16-5702-RBL, 2016 WL

2

4611544, at * 1 (W.D. Wash. Sept. 6, 2016) (citation omitted) (unpublished).

3

A.

4

Plaintiffs Fail to State a Claim under the CFAA, SCA, or ECPA.

5

Plaintiffs fail to state a claim under either the Computer Fraud and Abuse Act

6

("CF AA") (Count 1), the Stored Communications Act ("SCA") (Count 2), or the

7

Electronic Communications Privacy Act ("ECPA") (Count 3). To state a claim under the

8

9

ECP A, Plaintiffs must allege that IDG either ( 1) intentionally accessed without

10

authorization a facility through which an electronic communication service is provided;

11

or (2) intentionally exceeded an authorization to access that facility.

12

§§ 2701(a), 2707(a). 7 Similarly, the CFAA requires that the defendant undertake some

See 18 U.S.C.

13
action to intentionally access a computer without authorization.

See 18 U.S.C.

14
15

§ 1030(a)(2)(C), 1030(a)(5)(B) & (C); see also Nat'! City Bank, N.A. v. Republic Mortg.

16

Home Loans, LLC, No. C09-1550RSL, 2010 WL 959925, at *1 (W.D. Wash. Mar. 12,

17

2010) ("No facts are alleged linking these defendants to a computer or otherwise giving

18
rise to a reasonable inference that they could be liable under the CF AA.").
19
20
21
22
23

7

It is unclear whether Plaintiffs also attempt to assert a claim under 18 U.S.C. § 2520.

Even if they did, at least some action by IDG would be required. See id. §§ 2520(a),
2511.

24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGE 15

A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riverside
Spokane, Washington 99201
(509) 838-6131

 Case 2:17-cv-00105-SAB

1

2

Document 12

Filed 04/14/17

A plaintiff that relies on an agency theory must plead specific facts supporting the
agency relationship; conclusory allegations regarding agency will not suffice. See, e.g.,

3
4

Sipe v. Countrywide Bank, 690 F.Supp.2d 1141, 1156 (E.D. Cal. 2010) (dismissing claim

5

where plaintiff failed to allege any facts suggesting an agency relationship); Sandry v.

6

First Franklin Fin. Corp., No. 1:10-cv-01923-0WW-SKO, 2011 WL 202285, at *3 (E.D.

7

Cal. Jan. 20, 2011) (dismissing claim where allegations were directed to another and

8

9

conclusory allegations of agency were insufficient); Menashe v. Bank of N.Y., 850 F.

10

Supp. 2d 1120, 1136 (D. Haw. 2012) (dismissing claim where plaintiff "pled no facts

11

whatsoever plausibly suggesting that any type of agency relationship existed between

12

Approved and Countrywide, whether based on actual or apparent authority."); Taste

13
14

Trackers, Inc. v. UTI Transp. Sols., Inc., No. 13-23377-CIV, 2014 WL 129309, at *2

15

(S.D. Fla. Jan. 14, 2014) (dismissing complaint "for failure to adequately allege agency"

16

noting that Plaintiff failed to allege aspects of agency such as control, which was critical

17

element of agency under applicable law).

18
19

Here, Plaintiffs do not allege any specific actions whatsoever by IDG, let alone

20

intentionally accessing without authorization a facility through which an electronic

21

communication service is provided, intentionally exceeding an authorization to access a

22

facility, or intentionally accessing a computer without authorization. Instead, Plaintiffs

23
24

simply allege that Vickery undertook the actions but did so with the "knowledge,
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
ORALTERNATIVEL Y, MOTION TO DISMISS FOR
FAlLURE TO STATE A CLAIM
PAGEI6

A PROFESSIONAL SERVICE CORPORATION
i 900 Bank of AmeriCa Financial Center
601 West Riverside
Spokane, washington 99201
(509) 838·6131

 Case 2:17-cv-00105-SAB

I

Document 12

Filed 04/14/17

approval and/or ratification of ... the remaining defendants." Complaint~~ 89, 97, 115.

2 Plaintiffs also allege in conclusory fashion that each of the Defendants was the agent of
3

4

the other Defendants. See id. ~ 25. The Complaint fails to allege any facts supporting an

5

agency relationship between Vickery and IDG (or between any of the other Defendants

6

and IDG).

7

Plaintiffs allege no facts whatsoever relating to approval, ratification, or

knowledge of Vickery's acts by IDG. Accordingly, the Court should dismiss Plaintiffs'

8

9
10

claims against IDG.

B.

Plaintiffs Fail to State a Claim for Violations of the Defend Trade
Secrets Act.

11
12

Plaintiffs fail to state a claim under the Defend Trade Secrets Act ("DTSA")

13

(Count 3). Plaintiffs do not allege an act of acquisition or disclosure by IDG, which are

14

elements of a claim under the DTSA. See 18 U.S.C. § I 839(5). Additionally, Plaintiffs

15

do not allege that the alleged trade secret "is related to a product or service used in, or

16
17

intended for use in, interstate or foreign commerce," which is an element of a claim under
18 U.S.C. § 1836(b)(l). And, as discussed above, Plaintiffs' allegations

18

the DTSA.

19

regarding agency, ratification, approval, and knowledge are insufficient and mere legal

20

conclusions. Accordingly, the Court should dismiss Plaintiffs' DTSA claim.

21

22
23
24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAlLURE TO STATE A CLAIM
PAGE 17

~~.#>'3'~
A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 Wesl Riverside
Spokane, WaShlngtoo 99201
(509) 838·6131

 Case 2:17-cv-00105-SAB

c.

I

2

Document 12

Filed 04/14/17

Plaintiffs Fail to State a Claim for Invasion of Privacy, Intentional
Infliction of Emotional Distress, and Defamation.

3

Plaintiffs also fail to state a claim for invasion of privacy (Count 5), intentional

4

infliction of emotional distress (Count 9), and defamation (Count I 0). Each of these

5

claims requires some action on behalf of the Defendant. See Reid v. Pierce Cty., 961

6
7

P.2d 333, 338 (Wash. 1998) (discussing invasion of privacy); Phillips v. World Pub. Co.,

8

822 F. Supp. 2d 1114, 1118-20 (W.D. Wash. 201 I) (intentional infliction of emotional

9

distress and defamation). Plaintiffs allege no conduct on behalf of IDG, let alone conduct

10

that is "extreme or outrageous," a required element for a claim for intentional infliction of

II
12

emotional distress. Phillips, 822 F. Supp. 2d at I I 19. Plaintiffs also do not and cannot

13

allege any publication or communication by IDG as a required element for Plaintiffs'

14

defamation claim. Although Plaintiffs say that

15

allegedly

defamatory

statements,

"Defendant~

Plaintiffs

do

published" (emphasis added)

not

allege

any

specific

16

17

publication/communication by IDG but instead refer only to an article by Vickery and an

18

article on CSO Online (Complaint~~ 65-66), the latter of which Plaintiffs allege is owned

19

by CXO (not IDG). In short, Plaintiffs allege no conduct by IDG supporting any of these

20

claims. Further, as discussed at length above, Plaintiffs' allegations regarding agency,

21

22

ratification, approval, and knowledge are insufficient.

23
24
JOG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGElS

A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riverside
Spokane, Washington 99201
{509) 838·6131

 Case 2:17-cv-00105-SAB

1

D.

2

Document 12

Filed 04/14/17

Plaintiffs Fail to State a Claim for Intentional Interference with
Contractual Relationiships or Business Expectancy.

3

Intentional interference with contractual relationships and business expectancies

4

both require affirmative conduct constituting interference on the part of the defendant.

5

See Leingang v. Pierce Cty. Med. Bureau, Inc., 930 P.2d 288, 300 (Wash. 1997) (requires

6
7

"intentional interference inducing or causing a breach or termination of the relationship
"Defendan~

8

or expectancy") (emphasis added). Plaintiffs say that

9

interfered" (emphasis added), but Plaintiffs do not describe any conduct by IDG, let alone

10

intentionally

conduct constituting interference. Plaintiffs also do not and cannot allege any factual

11
12

specifics regarding IDG's alleged knowledge of Plaintiffs' contracts or expectancies.

13

Barebones recitation of the elements of a claim without any factual recitation of IDG's

14

conduct (or knowledge of contracts or expectancies) is insufficient. Further, as discussed

15

at length above, Plaintiffs' allegations regarding agency, ratification, approval, and

16
17
18
19
20

knowledge are insufficient.

E.

Plaintiffs Fail to State a Claim for Conversion.

"[C]onversion is the unjustified, willful interference with a chattel that deprives a
person entitled to the property of possession." Repin v. State, --- P.3d ----,No. 34049-0-

21

22
23

III, 201 7 WL 1063482, at *13 (Wash. App. Mar. 21, 20 17). Plaintiffs do not allege that
IDG interfered with any of Plaintiffs' chattel, whether tangible or intangible.

24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAlLURE TO STATE A CLAIM
PAGEI9

~~~%'ada//
A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riversk:le
Spokane, Washing1on 99201
(509) 838-6131

 Case 2:17-cv-00105-SAB

1

Document 12

Filed 04/14/17

Additionally, as with all other claims, Plaintiffs' conclusory allegations regarding agency,

2 ratification, approval, and knowledge are insufficient. Accordingly, Plaintiffs fail to state
3
4

a claim for conversion (Count 8).

Conclusion and Prayer

5
6
7

For the foregoing reasons, Defendant International Data Group, Inc. respectfully
requests that the Court dismiss Plaintiffs' Complaint against it for lack of personal

8
jurisdiction, grant IDG its reasonable attorney's fees, or alternatively dismiss Plaintiffs'
9
10

Complaint for failure to state a claim, and grant IDG such other relief as to which it may

11 be justly entitled.
12

DATED this 14th day of April, 2017.

13
14
15
16
17
18
19

s/Kevin J. Curtis, WSBA No. 12085
WINSTON & CASHATT, LA WYERS
Attorney for Defendants International Data
Group, Inc., CXO Media, Inc. and Steve Ragan
601 W. Riverside, Ste. 1900
Spokane, W A 99201
(509) 838-6131
Facsimile: (509) 838-1416
E-mail Address: kjc@winstoncashatt.com

20
21

22
23
24
lOG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGE20

A PROFESSIONAL SERVICE CORPORATION
i900 Bank o1 America Ananclal Canter
601 West Riverside
Spokane, Washington 99201
{509) 838..0131

 Case 2:17-cv-00105-SAB

1

2
3

4
5
6
7

8
9

Document 12

Filed 04/14/17

Charles L. Babcock IV (pro hac vice application
to be filed)
cbabcock@jw.com
Texas Bar No. 01479500
William J. Stowe (pro hac vice application to be
filed)
wstowe@jw.com
Texas Bar No. 24075124
JACKSON WALKERL.L.P.

1401 McKinney Street
Suite 1900
Houston, Texas 77010
(713) 752-4360 (telephone)
(713) 308-4116 (facsimile)

10
11

12
13
14
15
16
17
18
19
20
21

22
23
24
!DO'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
F AlLURE TO STATE A CLAIM
PAGE21

A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West ff!VElrslde
Spokane, Washington 99201
(509) 838·6131

 Case 2:17-cv-00105-SAB

1

2

Document 12

Filed 04/14/17

I hereby certify that on April 14, 2017, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF System which will send notification of such filing

3
4
5

to the following:
Keith P. Scully
keith@newmanlaw.com

6
7

Jason E. Bernstein
jake@newmanlaw.com

8
9

Attorney for Plaintiffs

10

11

s/Kevin J. Curtis, WSBA No. 12085
WINSTON & CASHATT, LA WYERS
Attorney for Defendants International Data
Group, Inc., CXO Media, Inc. and Steve Ragan
601 W. Riverside, Ste. 1900
Spokane, WA 99201
(509) 838-6131
Facsimile: (509) 838-1416
E-mail Address: kjc@winstoncashatt.com

12
13
14
15
16
17
18
19
20
21

22
23
24
IDG'S NOTICE, MOTION AND MEMORANDUM TO
DISMISS FOR LACK OF PERSONAL JURISDICTION,
OR ALTERNATIVELY, MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
PAGE22
1RI'l!Q7'\v .d.

A PROFESSIONAL SERVICE CORPORATION
1900 Bank o1 America Financial Center
601 West Riverside
Spokane, Wsshlngton99201
(509) 838-6131

 Case 2:17-cv-00105-SAB

1
2
3
4

5
6
7
8

9
10
11
12

Document 12-1

Filed 04/14/17

Kevin J. Curtis, WSBA No. 12085
WINSTON & CASHATT, LA WYERS, a
Professional Service Corporation
601 W. Riverside, Ste. 1900
Spokane, WA 99201
Telephone: (509) 838-6131
Charles L. Babcock IV (pro hac vice application to be filed)
cbabcock@jw.com
Texas Bar No. 01479500
William J. Stowe (pro hac vice application to be filed)
wstowe@jw.com
Texas BarNo. 24075124
JACKSON WALKERL.L.P.

1401 McKinney Street
Suite 1900
Houston, Texas 77010
(713) 752-4360 (telephone)
(713) 308-4116 (facsimile)

13
14

Attorneys for Defendants International Data
Group, Inc., CXO Media, Inc. and Steve Ragan

15

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

16
17
18
19
20

RIVER CITY MEDIA, LLC, a Wyoming
limited liability company, MARK
FERRIS, an individual, MATT FERRIS,
an individual, and AMBER PAUL, an
individual,

21
22
23

vs.

No. 2:17-cv-105-SAB

[PROPOSED] ORDER GRANTING
DEFENDANT INTERNATIONAL DATA
GROUP, INC.'S MOTION TO DISMISS
Plaintiffs, FOR LACK OF PERSONAL
JURISDICTION, OR ALTERNATIVELY,
MOTION TO DISMISS FOR FAlLURE TO
STATE A CLAIM

24
[PROPOSED] ORDER GRANTING lOG'S MOTION
TO DISMISS FOR LACK OF PERSONAL
JURISDICTION, OR ALTERNATIVELY, MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM
PAGE I

A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riverside
Spokao&, Washington 99201
(509) 638·6131

 Case 2:17-cv-00105-SAB

1

2
3
4

5

Document 12-1

Filed 04/14/17

KROMTECH ALLIANCE
CORPORATION, a German corporation,
CHRIS VICKERY, an individual, CXO
MEDIA, INC., a Massachusetts
corporation, INTERNATIONAL DATA
GROUP, INC., a Massachusetts
corporation, and STEVE RAGAN, an
individual, and DOES 1-50,

6
7

Defendants.

8

After considering Defendant International Data Group, Inc.'s ("IDG")

9

Motion to Dismiss for Lack of Personal Jurisdiction, or Alternatively, Motion to

10

Dismiss for Failure to State a Claim ("Motion") and the Response, and after

11

12

conducting a hearing, the Court hereby GRANTS the Motion and Orders that

13

Plaintiffs Complaint against IDG be dismissed.

14

SIGNED: _ _ _ _ _ _, 2017

15

16
17

The Hon. Stanley A. Bastian
U.S. D. Ct., E.D. Washington

18
19
20
21

22
23
24
[PROPOSED] ORDER GRANTING IDG'S MOTION
TO DISMISS FOR LACK OF PERSONAL
JURISDICTION, ORALTERNATIVELY, MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM
PAGE2

A PROFESSIONAL SERVICE CORPORATION
1900 Bank of America Financial Center
601 West Riverside
Spokana, Washington 99201
(509) 838-6131