Case 2:17-cv-00105-SAB 1 2 3 4 5 6 7 8 9 10 11 12 Document 14 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 Bar No. 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-1 05-SAB DEFENDANTS CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR Plaintiffs, LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, ORALTERNA TIVEL Y, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE I 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 3 4 5 Document 14 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 Defendants CXO Media, Inc. ("CXO") and Steve Ragan move the Court for an 9 order dismissing them from this case on the grounds that the Court lacks personal 10 jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), or alternatively, Plaintiffs fail to state a 11 12 13 14 15 claim. This motion is accompanied and supported by the Declarations of Edward Bloom and Steve Ragan and the following memorandum of authorities. Summary of Motion The Court should dismiss Plaintiffs' Complaint against CXO and Mr. Ragan for 16 17 lack of personal jurisdiction because Plaintiffs cannot meet their burden to establish 18 either general jurisdiction or specific jurisdiction. Plaintiffs admit that CXO is 19 incorporated in Massachusetts. Complaint (ECF No. 1) 20 ~ 22. CXO has its principal place of business in Massachusetts. It has no offices in Washington, no business 21 22 23 operations in Washington, no employees in Washington, and no property in Washington. Similarly, Mr. Ragan resides in Indiana and has no connection with Washington. Ragan 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE2 ~~~rf~ A PROFESSIONAL SERVICE CORPORATION 1900 Bank of America Financial Center 601 West Riverside Spokan&, Washfngton 99201 {509) 638-6131 Case 2:17-cv-00105-SAB 1 Dec!. ~ 3; Bloom Dec!. ~ 3. Document 14 Filed 04/14/17 Plaintiffs also cannot meet their burden of establishing 2 specific jurisdiction because neither CXO nor Mr. Ragan have "purposefully directed" 3 4 any activities to Washington, and Plaintiffs' claims do not arise out of any forum-related 5 activities of CXO or Mr. Ragan. 6 unreasonable under the seven-factor test employed by the Ninth Circuit. Alternatively, 7 Additionally, the exercise of jurisdiction would be the Court should dismiss Plaintiffs' Complaint against CXO and Mr. Ragan for failure to 8 state a claim. 9 Argument 10 11 12 13 14 15 1. The Court Should Dismiss the Complaint Against CXO and Mr. Ragan for Lack of Personal Jurisdiction. The plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). A plaintiffs allegations are taken as true only if they are uncontroverted by the defendants. 16 17 !d. Here, Plaintiffs make almost no allegations relating to personal jurisdiction. Instead, 18 the most Plaintiffs claim relating to CXO and Mr. Ragan is that CXO is the owner and 19 operator of www.csoonline.com ("CSO Online"); Ragan authored the article on CSO 20 Online mentioned in paragraph 65 of the Complaint; that each defendant "aided and 21 22 23 abetted" the actions of the other defendants; and that each defendant was the agent of the others and was acting within the course and scope of agency in doing the things alleged 24 CXO MEDIA, INC.'S AND STEVE RAGAN'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 West Riverside Spokane, Washington 99201 (509) 838·6131 Case 2:17-cv-00105-SAB I 2 Document 14 Filed 04/14/17 in the Complaint. Complaint ,-r,-r 22, 25, 65. Plaintiffs also allege that each defendant had knowledge of, approved, or ratified the conduct of others, but provides no factual details. 3 4 Plaintiffs' allegations regarding aiding and abetting, agency, and approval/ 5 ratification are conclusory and not entitled to any weight. See, e.g., Panda Brandywine 6 Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001); see also Mirza 7 Minds Inc. v. Kenvox US. L.L.C., No. 2:15-CV-00053-SAB, 2015 WL 6693689, at *2 8 9 (E.D. Wash. Nov. 2, 2015) (granting Defendant Herrera's motion to dismiss and noting 10 "Plaintiff only makes bare assertions that David Herrera participated in the alleged 11 conspiracy and the legal conclusion that Herrera conducted business in Washington") 12 (unpublished). Nevertheless, CXO has controverted Plaintiffs' allegations through the 13 Declaration of Edward Bloom, which establishes that CXO did not assist, contribute to, 14 15 facilitate, or otherwise aid and abet the actions of any other Defendant, including Chris 16 Vickery ("Vickery"), in obtaining any materials (electronic or otherwise) unlawfully 17 from Plaintiffs; none of the other Defendants (other than Mr. Ragan) have ever acted as 18 CXO's agent (nor has CXO acted as agent of any of the other Defendants); and CXO did 19 20 not know of or approve of any of Vickery's or any other Defendant's acts that Plaintiffs 21 claim were unlawful. Bloom Dec!. ,-r,-r 4-5. In fact, the only act of any Defendant that 22 was approved by CXO was the authoring and publishing of Mr. Ragan's article on CSO 23 Online. I d. ,-r 5. 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, ORALTERNATIVEL Y, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE4 ~~A?f~ 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 Document 14 Filed 04/14/17 Similarly, Mr. Ragan's Declaration establishes that he in no way assisted, 2 contributed to, facilitated, or otherwise aided and abetted Vickery or any other Defendant 3 4 in any way in obtaining any materials (electronic or otherwise) unlawfully from 5 Plaintiffs. Ragan Dec!. 1 5. Further, none of the other Defendants have ever acted as 6 Mr. Ragan's agent (nor has Mr. Ragan acted as agent of any of the other Defendants, 7 except for CXO); and Mr. Ragan did not approve of any of Vickery's or any other 8 9 Defendant's acts that Plaintiffs claim were unlawful. Ragan Dec!. 114-5. 10 Notably, the Supreme Court has expressly held that publishing documents 11 provided by a third party does not make a journalist liable for any wrongdoing that the 12 provider of the documents engaged in to obtain the documents. See Bartnicki v. Vopper, 13 532 U.S. 514, 535 (2001) (holding journalist not liable for broadcasting taped 14 15 conversation that was admittedly obtained in violation of the Electronic Communications 16 Privacy Act, where it related to a matter of public concern and journalist did not 17 participate in illegally obtaining it). That is precisely what happened here - CXO and 18 Mr. Ragan Gournalists) published an article regarding a matter of public concern after 19 20 Mr. Ragan received documents from Vickery, but neither CXO nor Mr. Ragan played 21 any part in the allegedly unlawful acts of intrusion into Plaintiffs' computers. 22 Personal jurisdiction over a nonresident defendant is only proper if a rule or statute 23 potentially confers jurisdiction over the defendant, and the exercise of personal 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIYELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE5 A PROFESSIONAL SERVICE CORPORATION 1900 Bank of AmeriCa Financial Center 601 West Riverside Spokane, Washington 99201 (509) 831J..6131 Case 2:17-cv-00105-SAB Document 14 Filed 04/14/17 1 jurisdiction over the defendant does not offend the principles of Fifth Amendment due 2 process. See Doe v. Unocal Corp., 248 F.3d 915, 921-22 (9th Cir. 2001), abrogated on 3 4 other grounds as recognized by Williams v. Yamaha Motor Co., 851 F.3d 1015 (9th Cir. 5 2017). 6 jurisdiction, the district court applies the law of the state in which the district court sits. 7 Where, as here, there is no applicable federal statute governing personal See Fed. R. Civ. Pro. 4(k)(l)(A). Washington state law, however, authorizes the exercise 8 9 of personal jurisdiction to the full extent permitted by the Due Process Clause of the 10 United States Constitution. Key Tronic Corp. v. SMART Techs. ULC, No. 2:16-CV- 11 0028-TOR, 2016 WL 7104252, at *3 (E.D. Wash. Dec. 5, 2016) (citation omitted). 12 Personal jurisdiction comports with federal due process only when the defendant 13 14 has "minimum contacts" with the forum state "such that the maintenance of the suit does 15 not offend 'traditional notions of fair play and substantial justice."' Picot v. Weston, 780 16 F.3d 1206, 1211 (9th Cir. 2015) (citation omitted). Personal jurisdiction may be based on 17 either general jurisdiction or specific jurisdiction. See, e.g., Schwarzenegger, 374 F.3d at 18 801-07. As demonstrated below, Plaintiffs cannot meet their burden on either. 19 20 A. Plaintiffs Do Not Allege, Much Less Meet Their Burden, of Establishing General Jurisdiction. 21 22 23 First, Plaintiffs do not allege, much less meet their burden of establishing, general jurisdiction. The Supreme Court opinion in Daimler AG v. Bauman, ---U.S. ----, 134 S. 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE6 P'O'~~re~ A PROFESSIONAL SERVICE CORPORATION 1900 Bank of America Rnanclal Center 601 WeS1 Riverside Spokane, washington 99201 (509) 638-S131 Case 2:17-cv-00105-SAB Document 14 Filed 04/14/17 1 Ct. 746 (2014) and its predecessor Goodyear "arguably tightened the general jurisdiction 2 standard," as numerous courts have recognized. 1 In Daimler AG, the Court held that 3 4 general jurisdiction exists only where the defendant is "fairly regarded as at home," and 5 for a corporation, "the place of incorporation and principal place of business are 6 'paradig[m] ... bases for general jurisdiction."' Id. at 760 (citation omitted) (alteration 7 in original) (emphasis added). Although the Court recognized that there may be a rare 8 situation where a corporation is subject to general jurisdiction in a state other than the 9 10 state of its incorporation or principal place of business, it stated that it would have to be 11 an "exceptional case ...." Id. at 761 n.19. The standard for general jurisdiction is a 12 "high" one. King v. Am. Family Mut. Ins. Co., 632 F.3d 570, 579 (9th Cir. 2011). 13 14 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 Q.!!!!. federal court has 19 apparently found jurisdiction ... since Daimler" outside of a forum where the defendant 20 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." I d. at *3 n.4 (emphasis added). 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR F AlLURE TO STATE A CLAIM PAGE7 ?i't?zdetm4'tf'adud A PROFESSIONAL SERVtCE CORPORATION 1900 Bank of America Financial Cenler 801 West Riverside Spokane, Washington 99201 {509) 838·6131 Case 2:17-cv-00105-SAB 1 2 Document 14 Filed 04/14/17 Plaintiffs admit that CXO is incorporated in Massachusetts. See Pl.'s Compl. CXO has its principal place of business in Massachusetts. Bloom Dec!.~ ~ 22. 2. Plaintiffs do 3 4 not plead that CXO is "at home" in Washington. CXO does not have any offices in 5 Washington, does not have any employees in Washington, has no business operations in 6 Washington, derives no income from any operations in Washington, and does not own 7 any real property in Washington. See id. ~ 3. Similarly, Mr. Ragan resides in Indiana, 8 9 and does not work in Washington, own real or personal property in Washington, or have ~ 10 any business dealings in Washington. Ragan Dec!. 11 much less met their burden, of establishing general jurisdiction. Plaintiffs also cannot 12 3. Plaintiffs have thus not alleged, establish general jurisdiction because the exercise of jurisdiction would not be 13 "reasonable" as explained in further detail below under Section (B)(iii). 14 15 B. Plaintiffs Cannot Meet Their Burden of Establishing Specific Jurisdiction. 16 17 18 19 20 21 22 23 To establish minimum contacts necessary to support specific jurisdiction, a threepart test must be satisfied: (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 24 CXO MEDIA, INC.'S AND STEVE RAGAN'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 w~~'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 14 Filed 04/14/17 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 3 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (emphasis 4 added) (citation omitted). None of the three requirements is satisfied in this case. 5 (i) "Purposeful Direction" Requirement Not Satisfied. 6 "To establish purposeful direction, the plaintiff must show that the defendant 7 8 committed an intentional act, expressly aimed at the forum state, causing harm that the 9 defendant knows is likely to be suffered in the forum state." 10 Microsoft Corp. v. Commc'ns & Data Sys. Consultants, Inc., 127 F. Supp. 3d 1107, 1114 (W.D. Wash. 11 2015). The Supreme Court in Walden v. Fiore, --- U.S. ----, 134 S. Ct. 1115 (2014) 12 13 overturned the Ninth Circuit's approach to "purposeful direction" that focused heavily on 14 the defendant's knowledge of the plaintiffs residency and the plaintiffs foreseeable 15 harm in the forum state. The Court explained that to exercise personal jurisdiction, "the 16 defendant's suit-related conduct must create a substantial connection with the forum 17 18 State." Id. at 1121. This "relationship must arise out of contacts that the 'defendant 19 himself creates with the forum State," and the "analysis looks to the defendant's contacts 20 with the forum State itself, not the defendant's contacts with persons who reside there." 21 22 I d. at 1122 (emphasis in original). 23 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE9 A PROFESSIONAL SERVICE CORPORATION 1900 Bank of America Rnanclal Center 601 West Riverside Spokane, Washington 99201 (509) 838·6131 Case 2:17-cv-00105-SAB 1 2 Document 14 Thus, Walden forecloses any argument that CXO or Mr. Ragan are subject to specific jurisdiction simply if they had known that the Plaintiff River City Media, LLC 3 4 Filed 04/14/17 2 ("RCM") resided in Washington- which they did not -and published the CSO Online 5 article. 6 specific jurisdiction. All three parts of the test must be satisfied, meaning that simply 7 Indeed, even under the three-part "effects test," Plaintiffs could not establish proving that one of the Plaintiffs (RCM) allegedly will feel the "effects" of statements 8 9 made in the article on CSO Online is not sufficient. Instead, something more is required, See 10 namely an "intentional" act expressly aimed at the plaintiff in the forum state. 11 Spacey v. Burgar, 207 F. Supp. 2d 1037, 1046 (C.D. Cal. 2001) (no personal jurisdiction 12 based on website that misappropriated actor's name as part of its domain name when 13 website was aimed at fans "all over the world" and was not specifically aimed at 14 15 California); Schwarzenegger, 374 F.3d at 807 (holding that, even though defendant knew 16 plaintiff lived in California, "express aiming" requirement not satisfied by defendant's 17 unauthorized use of plaintiffs image in advertisement published in Ohio). 18 19 Here, CXO and Mr. Ragan did not "purposefully direct" any activities toward 20 Washington. The article authored by Mr. Ragan- which is the only act actually tied to 21 CXO and Mr. Ragan - is not "expressly aimed" at Washington. Neither CXO nor 22 23 'See Bloom Dec!.~ 7; Ragan Dec!.~ 6. 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, ORAL TERNATIVEL Y, MOTION TO DISMISS FOR FAlLURE TO STATE A CLAIM PAGEIO A PROFESSIONAL SERVICE CORPORATION 1900 Bank of AmeriCa Financial Center 601 Wsst Riverside Spokane, washington 99201 (509) 838-6131 Case 2:17-cv-00105-SAB Document 14 Filed 04/14/17 1 Mr. Ragan knew that one of the Plaintiffs (RCM) claims to have its principal place of 2 business in Washington. See Bloom Dec!. ~ 7; Ragan Dec!.~ 6. Further, neither CXO 3 4 nor Mr. Ragan in any way assisted, contributed to, facilitated, or otherwise aided and 5 abetted Vickery or any other Defendant in obtaining any materials (electronic or 6 otherwise) from Plaintiffs. Bloom 7 Dec!.~ 5; Ragan Dec!.~ 5. Moreover, none of the other Defendants have ever acted as CXO's or Mr. Ragan's agent. Bloom Dec!. ~ 4; 8 9 Ragan Dec!. ~ 4. CXO and Mr. Ragan have not "purposefully directed" any activities 10 toward Washington. 11 (ii) 12 Plaintiffs' Claims Do Not "Arise Out of Forum-Related Activities." 13 As noted, neither CXO nor Mr. Ragan has ever assisted, contributed to, facilitated, 14 or otherwise aided and abetted Vickery or any other Defendant in obtaining any materials 15 (electronic or otherwise) from Plaintiffs. Bloom Dec!.~ 5; Ragan Dec!.~ 5. Additionally, 16 17 the article on CSO Online was not about Washington, 3 none of the other Defendants have 18 ever acted as CXO's or Mr. Ragan's agent, nor has CXO or Mr. Ragan approved of the 19 allegedly unlawful acts of the other Defendants. Bloom Dec!.~~ 4-5; Ragan Dec!.~~ 4-5. 20 21 22 'See http://www.csoonline.com/article/3176433/security/spammers-expose-their-entire23 operation-through-bad-backups.html (last visited Apr. 7, 2017). 24 CXO MEDIA, INC.'S AND STEVE RAGAN'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 II ??t'uuamA'tf'~ 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 14 Filed 04/14/17 Thus, there are no "forum-related activities" from which Plaintiff's claims could possibly anse. 3 4 5 (iii) The Exercise of Personal Jurisdiction Would Not Be "Reasonable." Finally, the exercise of personal jurisdiction would not be "reasonable." See 6 7 Amoco Egypt Oil Co. v. Leonis Nav. Co., Inc., 1 F.3d 848, 851 (9th Cir. 1993) (noting 8 reasonableness requirement applies to both the "general jurisdiction analysis" and the 9 specific jurisdiction analysis); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 10 802 (9th Cir. 2004) (applying requirement in the context of specific jurisdiction). In 11 12 evaluating reasonableness, courts balance seven factors: (1) the extent of the defendants' 13 purposeful interjection into the forum state's affairs; (2) the burden on the defendants of 14 defending in the forum; (3) the extent of conflict with the sovereignty of the defendants' 15 state; ( 4) the forum state's interest in adjudicating the dispute; (5) the most efficient 16 17 judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's 18 interest in convenient and effective relief; and (7) the existence of an alternative forum. 19 See Amoco Egypt Oil Co., 1 F.3d at 851. Here, the extent ofCXO's and Mr. Ragan's 20 purposeful interjection into Washington is nonexistent, given that neither CXO nor 21 22 23 Mr. Ragan ever assisted, contributed to, facilitated, or in any other way aided or abetted Vickery or any of the Other Defendants with any of the alleged actions claimed in 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAlLURE TO STATE A CLAIM PAGEI2 P't'~~'lf'oda# 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 Plaintiffs' Complaint in this matter. Document 14 Filed 04/14/17 See Bloom Dec!. ~~ 5, 7; Ragan Dec!. ~~ 4-5. Additionally, the burden on CXO and Mr. Ragan in defending in Washington would be 3 4 significant. See Bloom Dec!. ~ 8; Ragan Dec!. ~ 7. CXO is a Massachusetts corporation 5 having its principal place of business in Massachusetts, and Mr. Ragan resides and works 6 in Indiana. 7 See Bloom Dec!. ~~ 2, 8; Ragan Dec!. ~ 7. Further, because CXO's representatives will rely upon documents located primarily in Massachusetts (see Bloom 8 9 10 Dec!. ~ 8), there would be significant efficiencies in litigating this dispute in Massachusetts, which is an available alternative forum. Finally, Washington has no 11 unique interest in adjudicating the dispute as many of the claims are based on federal, not 12 state, law. And, even as to the state law claims, Plaintiffs do not even specifY the state 13 14 15 16 17 under whose laws the claims are brought. See, e.g., Complaint,~~ 118-58. The state law claims are generic and are recognized in most U.S. jurisdictions. c. CXO and Mr. Ragan Are Entitled to Their Attorney's Fees. "Under [RCW § 4.28.185(5)], courts are allowed to award attorney's fees to 18 19 defendants who-after being hailed into court under the long-arm statute-prevail on a 20 12(b)(2) motion to dismiss." Hunter v. Ferebauer, 980 F. Supp. 2d 1251, 1259 (E.D. 21 Wash. 2013) (citation omitted). Section 4.28.185(5) provides: 22 23 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 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR F AlLURE TO STATE A CLAIM PAGEI3 A PROFESSIONAL SERVICE CORPORATION 1900 Bank of America Financial Center 601 West Riverside Spokane, WaShlngton 99201 (509) 838-&131 Case 2:17-cv-00105-SAB 1 Document 14 Filed 04/14/17 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. 2 3 RCW § 4.28.185(5). One of the enumerated causes of action is "[t]he commission of a 4 tortious act within this state .... " !d. § 4.28.185(1)(b). Since Plaintiffs have asserted 5 tort claims against CXO and Mr. Ragan, and since CXO and Mr. Ragan should prevail on 6 7 their Rule 12(b)(2) motion, the Court should award CXO and Mr. Ragan their reasonable 8 attorney's fees. 9 2. 10 The Court Should Dismiss the Complaint for Failure to State a Claim. "To survive a motion to dismiss, a complaint must contain sufficient factual 11 12 matter, accepted as true, to 'state a claim to relief that is plausible on its face."' 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must allege "more than labels 14 and conclusions, and a formulaic recitation of the elements of a cause of action will not 15 do .... " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Importantly, the 16 17 court need not accept as true conclusory legal allegations cast in the fonn of factual 18 allegations. See, e.g., Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 19 2009) ("[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual 20 content,' and reasonable inferences from that content, must be plausibly suggestive of a 21 22 23 claim entitling the plaintiff to relief," citing Iqbal and Twombly ). "A claim has 'facial plausibility' when the party seeking relief "pleads factual content that allows the court to 24 CXO MEDIA, INC'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAlLURE TO STATE A CLAIM PAGE 14 A PROFESSIONAL SERVICE CORPORATION 1900 Bank ol America Financial Center 601 West Riverside Spokane, Washington 99201 {509) 838·6131 Case 2:17-cv-00105-SAB 1 2 Document 14 Filed 04/14/17 draw the reasonable inference that the defendant is liable for the misconduct alleged." Kanam v. Dep't of Nat. Res., No. C16-5702-RBL, 2016 WL 4611544, at *1 (W.D. Wash. 3 4 Sept. 6, 2016) (citation omitted) (unpublished). 5 A. 6 Plaintiffs fail to state a claim under either the Computer Fraud and Abuse Act 7 Plaintiffs Fail to State a Claim under the CFAA, SCA, or ECP A. ("CF AA") (Count 1), the Stored Communications Act ("SCA") (Count 2), or the 8 9 Electronic Communications Privacy Act ("ECPA") (Count 3). To state an ECPA claim, 10 Plaintiffs must allege that CXO and Mr. Ragan either (1) intentionally accessed without 11 authorization a facility through which an electronic communication service is provided; 12 13 or (2) intentionally exceeded an authorization to access that facility. See 18 U.S.C. §§ 2701(a), 2707(a). 4 Similarly, the CFAA requires that the defendant undertake some 14 15 action to intentionally access a computer without authorization. See 18 U.S.C. § 16 1030(a)(2)(C), 1030(a)(5)(B) & (C). 17 A plaintiff that relies on an agency theory must plead specific facts supporting the 18 agency relationship; conclusory allegations regarding agency will not suffice. See, e.g., 19 20 21 'It is unclear whether Plaintiffs also attempt to assert a claim under 18 U.S.C. § 2520. 22 Even if they did, at least some action by CXO and Mr. Ragan would be required. See id. 23 §§ 2520(a), 2511. 24 CXO MEDIA, INC.'S AND STEVE RAGAN'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 I 2 Document 14 Filed 04/14/17 Sipe v. Countrywide Bank, 690 F. Supp. 2d 1141, 1156 (E.D. Cal. 2010) (dismissing claim where plaintiff failed to allege any facts suggesting an agency relationship); 3 4 Sandry v. First Franklin Fin. Corp., No. 1:10-cv-01923-0WW-SKO, 2011 WL 202285, 5 at *3 (E.D. Cal. Jan. 20, 2011) (dismissing claim where allegations were directed to 6 another and conclusory allegations of agency were insufficient); Menashe v. Bank of 7 NY, 850 F. Supp. 2d 1120, 1136 (D. Haw. 2012) (dismissing claim where plaintiff 8 9 "pled no facts whatsoever plausibly suggesting that any type of agency relationship 10 existed between Approved and Countrywide, whether based on actual or apparent II authority."); Taste Trackers, Inc. v. UTI Transp. Sols., Inc., No. 13-23377-CIV, 2014 WL 12 129309, at *2 (S.D. Fla. Jan. 14, 2014) (dismissing complaint "for failure to adequately 13 14 15 16 17 allege agency" noting that Plaintiff failed to allege aspects of agency such as control, which was critical element of agency under applicable law). Here, Plaintiffs do not allege any specific actions violating the CFAA, SCA, or ECP A whatsoever by CXO and Mr. Ragan, such as intentionally accessing without 18 authorization a facility through which an electronic communication service is provided, 19 20 intentionally exceeding an authorization to access a facility, or intentionally accessing a 21 computer without authorization. Instead, Plaintiffs simply allege that Vickery undertook 22 the actions but did so with the "knowledge, approval and/or ratification of . . . the 23 24 remaining defendants." Complaint~~ 89, 97, 115. Plaintiffs also allege in conclusory CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE 16 A PROFESSIONAL SERVICE CORPORATION 1900 Bank ol America Financial Center 601 West Riverside Spokane, Washington 99201 (509) 838-6131 Case 2:17-cv-00105-SAB 1 2 Document 14 Filed 04/14/17 fashion that each of the Defendants was the agent of the other Defendants. See id. ~ 25. Additionally, the claim fails because CXO and Ragan are journalists who were simply 3 4 5 6 7 publishing information they received but had not participated in obtaining it. See Bartnicki v. Vopper, 532 U.S. 514, 535 (2001). The Complaint also fails to allege any facts supporting an agency relationship between Vickery and either CXO or Mr. Ragan (or between any of the other Defendants 8 9 and CXO or Mr. Ragan). Plaintiffs allege no facts whatsoever relating to approval, 10 ratification, or knowledge of Vickery's acts by CXO or Mr. Ragan. Accordingly, the 11 Court should dismiss Plaintiffs' claims against CXO and Mr. Ragan. 12 13 Plaintiffs Fail to State a Claim for Violations of the Defend Trade Secrets Act. 14 Plaintiffs do not allege an act of acquisition or disclosure by CXO or Mr. Ragan, 15 B. which are required elements of the claim. See 18 U.S.C. § 1839(5). Plaintiffs do not 16 17 allege that the alleged trade secret "is related to a product or service used in, or intended 18 for use in, interstate or foreign commerce," which is also an element of a claim under the 19 DTSA. 18 U.S.C. § 1836(b)( 1). Nor do Plaintiffs even identify what the trade secret 20 concerned. And, as discussed above, Plaintiffs' allegations regarding agency, ratification, 21 22 23 approval, and knowledge are insufficient and mere legal conclusions. Accordingly, the Court should dismiss Plaintiffs' DTSA claim (Count 3). 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURJSD!CTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE!? A PROFESSIONAL SERVICE CORPORATION 1900 Bank of AmeriCa Flf\Bn<:lal center 601 West Riverside Spokane, Washington 99201 (509) 838·6131 Case 2:17-cv-00105-SAB 1 2 c. Document 14 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 10). Each of these 5 claims requires some actionable conduct on behalf of each Defendant. See Reid v. Pierce 6 7 Cty., 961 P.2d 333, 338 (Wash. 1998) (discussing invasion of privacy); Phillips v. World 8 Pub. Co., 822 F. Supp. 2d 1114, 1118-20 (W.D. Wash. 2011) (intentional infliction of 9 emotional distress and defamation). Plaintiffs allege no conduct on behalf of CXO and 10 Mr. Ragan that was "extreme or outrageous," a required element for a claim for 11 12 intentional infliction of emotional distress. Phillips, 822 F. Supp. 2d at 1119. As to 13 invasion of privacy, Plaintiffs do not and cannot allege any facts regarding any 14 participation by CXO or Mr. Ragan in the alleged intrusion into Plaintiffs' private affairs. 15 Further, as discussed at length above, Plaintiffs' allegations regarding agency, 16 17 ratification, approval, and knowledge are insufficient. 18 As for defamation, Plaintiffs complain of three statements from the article on CSO 19 Online (which is the only article in the Complaint that Plaintiffs allege that CXO and 20 Mr. Ragan published). See Complaint (ECF No.1) at~ 73. In one portion of a statement 21 22 23 relied upon by Plaintiffs, the CSO Online article is alleged to have stated that RCM "exploit[ed] a number of providers in order to inbox offers." Courts have held statements 24 CXO MEDIA, INC.'S AND STEVE RAGAN'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 18 PO'~~%'~ A PROFESSIONAL SERVICE CORPORATION 1900 Bank of America Financial Center 601 West Riverside Spokane, Washlngtoo 99201 {509) 83a.6131 Case 2:17-cv-00105-SAB 1 2 Document 14 Filed 04/14/17 similar to "exploit," such as "ripped off" or "took on a ride," to be nonactionable opinions. See, e.g., Paterson v. Little, Brown & Co., 502 F. Supp. 2d 1124 (W.D. Wash. 2007) 3 4 (holding author's statements that computer programmer "ripped off' or "[took] a ride on" 5 another operating system, was mere opinion). The word "exploit" is imprecise hyperbole 6 incapable of defamatory meaning, and Mr. Ragan fully disclosed the basis for the 7 statement in the article. In another of the three alleged defamatory statements, which 8 9 Plaintiffs conveniently chopped from different portions of the article, Mr. Mike Anderson 10 is quoted as saying "[n]obody would knowingly give their email address to spammers, so 11 they have to be tricked into it," which is purely nonactionable opinion regarding what 12 Mr. Anderson apparently thought about people knowingly giving their address to 13 14 spammers. In a later portion of the article, Plaintiffs' complain about a quote from 15 Mr. Anderson that "the original contract for handing over the address is never fulfilled, 16 since it turns out to be impossible to redeem the 'free gift' or only with extreme 17 difficulty." Plaintiffs do not allege that a reader would understand this to be referring to 18 Plaintiffs not allowing for the redemption of a free gift (or allowing it only with extreme 19 20 difficulty). The final of the three alleged statements that Plaintiffs complain about 21 involves an allegation that Vickery is quoted as saying "Once we concluded that this was 22 indeed related to a criminal operation ... " Plaintiffs' complaint depends wholly on what 23 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE 19 ~~~'f!~ 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 14 Filed 04/14/17 1 the reader understands the word "this" to mean. Plaintiffs do not allege that the "this" 2 would be understood by the reader to mean Plaintiffs' operation. 3 4 As to Plaintiffs' complaint that the article on CSO Online links to the separate ~ 5 Vickery Article (see Complaint (ECF No. 1) 6 claim because merely publishing a hyperlink to an allegedly defamatory website does not 7 74), this allegation also fails to state a constitute republication as a matter of law. See Life Designs Ranch, Inc. v. Sommer, 364 8 9 10 P.3d 129, 138 (2015), review denied, 185 Wash. 2d 1022, 369 P.3d 500 (Wash. App. 20 16) (holding that publishing a hyper! ink to another allegedly defamatory website did 11 not constitute a republication of content). Accordingly, Plaintiffs fail to state a claim 12 against CXO or Mr. Ragan for defamation, intentional infliction of emotional distress, or 13 14 15 invasion of privacy. D. Plaintiffs Fail to State a Claim for Intentional Interference with Contractual Relationiships or Business Expectancy. 16 17 Intentional interference with contractual relationships and business expectancies 18 both require affirmative conduct constituting interference on the part of the defendant. 19 See Leingang v. Pierce Cty. Med. Bureau, Inc., 930 P.2d 288, 300 (Wash. 1997) (requires 20 "intentional interference") (emphasis added). Plaintiffs say that "Defendant§. intentionally 21 22 23 interfered" (emphasis added), but Plaintiffs do not describe any conduct by CXO or Mr. Ragan, let alone conduct constituting interference. Plaintiffs also do not and cannot 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, ORALTERNATIVEL Y, MOTION TO DISMISS FOR FAlLURE TO STATE A CLAIM PAGE 20 A PROFESSIONAL SERVICE CORPORATION 1900 Bank of America Allandal Center 601 West Riverside Spokane, Washington 99201 (509) 838·6131 Case 2:17-cv-00105-SAB 1 Document 14 Filed 04/14/17 allege any factual specifics regarding CXO's or Mr. Ragan's knowledge of Plaintiffs' 2 alleged contracts or expectancies. Barebones recitation of the elements of a claim without 3 4 any factual recitation of CXO's or Mr. Ragan's conduct (or knowledge of contracts or 5 expectancies) is insufficient. Further, as discussed at length above, Plaintiffs' allegations 6 7 regarding agency, ratification, approval, and knowledge are insufficient. E. Plaintiffs Fail to State a Claim for Conversion. 8 9 "[C]onversion is the unjustified, willful interference with a chattel that deprives a 10 person entitled to the property of possession." Repin v. State, --- P.3d ----, No. 34049-0- 11 III, 2017 WL 1063482, at *13 (Wash. App. Mar. 21, 2017). Plaintiffs do not allege that 12 CXO or Mr. Ragan interfered with any of Plaintiffs' chattel, whether tangible or 13 14 intangible. Additionally, Plaintiffs' conclusory allegations regarding agency, ratification, 15 approval, and knowledge are insufficient. Accordingly, Plaintiffs fail to state a claim for 16 conversion (Count 8). 17 Conclusion and Prayer 18 19 Defendants CXO Media, Inc. and Steve Ragan respectfully request that the Court 20 dismiss Plaintiffs' Complaint against them for lack of personal jurisdiction, grant CXO 21 and Mr. Ragan their reasonable attorney's fees, or alternatively dismiss Plaintiffs' 22 Complaint for failure to state a claim, and grant CXO and Mr. Ragan such other relief as 23 24 to which it may be justly entitled. CXO MEDIA, INC'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE21 P't'~~rc~ A PROFESSIONAL SERVICE CORPORATION 1900 Bank of America Financial Center 601 West Riverside Spokane, Washington 99201 {509) 638-6131 Case 2:17-cv-00105-SAB 1 Document 14 Filed 04/14/17 DATED this 14th day of April, 2017. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 s/Kevin J. Curtis, WSBA No. 12085 WINSTON & CASHATT, LAWYERS 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 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) 18 19 20 21 22 23 24 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE 22 A PROFESSIONAL. SERVICE CORPORATION 1900 Bank of Amerit:a Financial Center 601 West Riverside Spokane, Washington 99201 (509)838-6131 Case 2:17-cv-00105-SAB 1 Document 14 Filed 04/14/17 I hereby certifY that on April14, 2017, I electronically filed the foregoing with the 2 Clerk of the Court using the CMIECF 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, W A 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 CXO MEDIA, INC.'S AND STEVE RAGAN'S NOTICE, MOTION AND MEMORANDUM TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAlLURE TO STATE A CLAIM PAGE 23 IRI11Q1.?v h. ~~~w~ A PROFESSIONAL SERVICE CORPORATION 1900 Bank of America Financial Center 601 Wesl Rlverslae Spokane, Washington 99201 (509) 838-6131 Case 2:17-cv-00105-SAB Document 14-1 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 Charles L. Babcock IV (pro hac vice application to be filed) 6 cbabcock@jw.com Texas Bar No. 014 79500 7 William J. Stowe (pro hac vice application to be filed) 8 wstowe@jw.com Texas Bar No. 24075124 9 JACKSON WALKER L.L.P. 10 1401 McKinney Street Suite 1900 11 Houston, Texas 77010 (713) 752-4360 (telephone) 12 (713) 308-4116 (facsimile) 13 Attorneys for Defendants International Data 14 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 DEFENDANTS CXO MEDIA, INC.'S AND STEVE RAGAN'S MOTION TO DISMISS Plaintiffs, FOR LACK OF PERSONAL JURISDICTION, ORALTERNATIVELY, MOTION TO DISMISS FOR FAlLURE TO STATE A CLAIM 24 [PROPOSED] ORDER GRANTING CXO MEDIA, INC.'S AND STEVE RAGAN'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE I ~~~'lf'ada# 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 3 4 5 Document 14-1 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 Defendants. 7 8 After considering Defendants CXO Media, Inc.'s ("CXO") and Steve 9 Ragan's ("Ragan") Motion to Dismiss for Lack of Personal Jurisdiction, or 10 Alternatively, Motion to Dismiss for Failure to State a Claim ("Motion") and the 11 12 Response, and after conducting a hearing, the Court hereby GRANTS the Motion 13 and Orders that Plaintiffs Complaint against CXO and Ragan be dismissed. 14 SIGNED: _ _ _ _ _ _, 2017 15 16 The Hon. Stanley A. Bastian U.S. D. Ct., B.D. Washington 17 18 19 20 21 22 23 24 [PROPOSED] ORDER GRANTING CXO MEDIA, INC.'S AND STEVE RAGAN'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PAGE2 1~1h7~7.d.v 1 '&J~~rfada# A PROFESSIONAL SERVICE CORPORATION 1900 Bank of America Ananc!al Center 601 West Riverside Spokane, Washington 99201 (509) 838-6131