Tuesday, May 4, 2004

Kathy Knight-McConnell v Mary Cummins - Cummins wins the lawsuit


Mary Cummins copy of memorandum in support of Defendant's Rule 12(b) Motions to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue and failure to state a claim. Judge Naomi Buchwald.

Mary Cummins, Defendant pro se 
Phone 323-651-1336 
Fax 323-651-1335 
359 N. Sweetzer Avenue
Los Angeles, CA 90048

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
KATHY KNIGHT-MCCONELL, Plaintiff, v. MARY CUMMINS, DefendantCivil No. 03 CV 5035 MEMORANDUM IN SUPPORT OF DEFENDANT’S RULE 12(b) MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, and FAILURE TO STATE A CLAIM Judge: Buchwald
MEMORANDUM 

Background

Plaintiff Kathy Knight-McConnell’s (“Plaintiff”) lawsuit expresses Plaintiff’s discontent with Defendant Mary Cummins’ (“Defendant” or “Cummins”) opinions which were published by Cummins on the internet, related to Plaintiff’s former activities as a paid stock promoter and as a paid stock tout. What is at issue here are Cummins First Amendment free speech rights, not matters prohibited by any federal statute.

Plaintiff seeks to misuse the federal statutes cited by Plaintiff outside of their intended legal meaning and jurisdictional authority as a basis for jurisdiction in federal court and for venue in New York. Further, she alleges actions and conduct for which no law exists upon which relief can be granted. A careful reading of the complaint in question implies claims that the statements allegedly published by Defendant are derogatory to Plaintiff, but any such claims would have to be brought under state, not federal, law. What this really boils down to is that Plaintiff is attempting to abridge the free speech rights of Defendant.

Defendant Cummins was never properly served in this case. The court previously struck an earlier proof of service filed by the Plaintiff, and instructed Plaintiff to effect service of process by mail according to court rules. Instead of following the court’s instructions to complete service by mail, Plaintiff, by way of a third party, left the new summons and complaint papers in a hedge row in a rain storm. At this time, Cummins prefers to move for dismissal on other grounds without further delay in this matter. Therefore, Cummins considers this appearance to be voluntary, since a second motion to strike Plaintiff’s proof of service on the grounds stated above will not resolve disposal of this case in finality.

Argument A. Subject Matter Jurisdiction (Rule 12(b)(1))

Plaintiff alleges several claims pursuant to the Securities and Exchange Act of 1934 (15 USC §§ 78i, 78j, 78t, and 78aa; and 15 USC § 80b-2). Reliance by Plaintiff on these statutes is preposterous. No allegation or statement of fact in Plaintiff’s complaint has any connection, even remotely, with the sale, offering for sale, issuance, purchase, or any statement made in conjunction with, a security.

The Exchange Act and the rules promulgated under it provide for a shareholder derivative action, and then only when the plaintiff has standing as the buyer or seller of the security involved. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975). In such case, a plaintiff may have standing, upon court certification, to bring a private action. However in the instant case, the Plaintiff has not alleged that either the Plaintiff or the Defendant is the issuer of any security, or that any party has purchased or sold any security. Without such a basic premise as standing, the court need not look further to determine whether any other of the numerous and complex elements for bringing a private securities action even exists. This subject is covered in full below under the argument for dismissal under Rule 12(b)(6).

Even the Plaintiff were legitimately bringing a suit pursuant to any claim under the Exchange Act, Sec. 78aa specifically permits that a civil action may be brought in district court, but venue lay where the defendant resides, transacts business, or may be found. Because defendant has not purposefully availed herself of a New York venue in any constitutionally relevant sense (see Declaration of Mary Cummins), only the appropriate California district can hold venue. The matter of personal jurisdiction will be discussed more fully below.

Plaintiff alleges claims under 15 USC § 1125, claiming some sort of trademark infringement or dilution pertaining to a registered domain name. No information is alleged from which a claim under this statute could possibly be inferred, because this section deals with trademark infringement from improper registration of domains. Even if such a claim has been alleged, the statute specifically directs venue and jurisdiction to the residence of the registrar. No registrar is even alleged in the complaint.

Even if Plaintiff alleges that Plaintiff published public documents on the internet, and that Defendant allegedly linked to those public internet pages from Defendant’s web site. The absurdity of Plaintiff’s charges lay in the fact that the internet is a World Wide Web, that is, millions of published documents which are linked by unique registered locators, or URL’s. Not only is Plaintiff’s belief that creating URL’s which link to public documents on the internet are illegal, but it has nothing to do with trademark infringement within the context of a domain name, which is legal authority she is claiming. Specifically, she claims these links from mary.cc to investortoinvestor.com were illegal because they allegedly were done without permission. This is ridiculous, because any alleged link or URL from any web page would simply direct the reader to the target website.

Plaintiff also alleges that the Uniform Resource Locator “URL” somehow violates trademark properties. This is equally ridiculous. a URL is simply a directory or sub-directory filing system on a computer. It identifies the directory tree under which the requested document may be found using the Hypertext Transfer Protocol (“HTTP”). Furthermore, the content of those pages are public documents, which is the nature of the internet, unless the publisher has made specific efforts to restrict access to those documents, which is not the case here. The URL’s in question are clearly located under the mary.cc domain, a domain which Plaintiff alleges is owned by, and registered to, Defendant Cummins. There is no dispute relating to improper domain name registration under the federal trademark statute. Therefore, there is no possible application of this statute even when applied in the greatest stretch of the imagination.

Each and every other alleged “claim” asserted by the Plaintiff, which include false light, defamation, and business interference, are state claims under state common law. Because Plaintiff has alleged no ultimate facts alleging valid claim under Rule 10B-5 of the Exchange Act, this court cannot take jurisdiction over the state law claims as alleged by the Plaintiff.

B. Personal Jurisdiction (Rule 12(b)(2))

Plaintiff further cites New York’s “long arm statute” as a basis for jurisdiction. Under this state statute, the federal district court is required to exercise jurisdiction under the same standards and guidelines as would be considered by the state courts. Bank Brussels Lambert v. Gonzalez, 171 F.3d 779 (2d Cir. 03/26/1999). Once the standards are applied under New York’s C.P.L.R., then the district court must determine whether an exercise of jurisdiction under these laws is consistent with federal due process requirements. Met Life, 84 F.3d at 567.

Plaintiff alleges no ultimate facts that Defendant has had any minimal contact with the forum state. Indeed, Plaintiff alleges that Cummins resides in, and conducts business in, California (see Complaint at par. 10, pg. 3).
Defendant is a citizen of California, and lives and is employed in California. See Affidavit of Mary Cummins at 2, 3, and 4. Defendant has no contact with the forum state, and there is no basis upon which Cummins could “reasonably be expected to be hailed” into the forum state of New York. Accordingly, due process cannot be served in New York. Kernan v. Kurz-Hastings Inc., 175 F.3d 236 (2d Cir. 04/15/1999).

C. Improper Venue (Rule 12(b)(3))

Plaintiff further alleges jurisdiction pursuant to 28 USC § 1332. Because there is no federal cause of action alleged or implied by Plaintiff under any federal statute, Defendant’s due process rights dictate that the only proper venue is California, and that any allegations made by the Plaintiff should be applied under California State law. The standard for venue even in Internet cases is well established, that the Plaintiff must allege ultimate facts proving that the alleged conduct is directed expressly at the forum state more than at any other state or venue. See GTRE New Media Services Incorporated v. BellSouth Corp., 199 F.3d 1343 (D.C.Cir. 01/11/2000), where the plaintiff relied upon District of Columbia’s long-arm statute in allegations similar to this case. Even if Plaintiff were properly alleging a trademark infringement, which she is not, allegations of ultimate facts must be pleaded in order to claim venue in New York. Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293 (2d Cir. 11/07/2002).

Plaintiff also alleges that there is an agreement on the investortoinvestor.com web site which binds venue in New York. A copy of this purported “agreement” is attached as Exhibit A. There is no basis for this claim because (a), Investor to Investor, Inc. is NOT a party to this lawsuit; (b), there is no “venue clause” in this purported “agreement” as alleged by the Plaintiff. (3), there are no factual allegations linking Defendant Cummins to this, or any other purported “agreement”; and (4) no legal basis has been established wherein an internet computer user is bound to any published rules binding venue on a website just by casually visiting or using that web site. See GTRE supra.

D. Failure To State A Claim Upon Which Relief Can Be Granted (Rule 12(b)(7))

As described above, Plaintiff has not pleaded any factual allegations relating to any federal statute cited by Plaintiff as a basis for her complaint. Specifically, Plaintiff has not alleged any claims as follows:

(1) Misappropriation or conversion (presumably of Plaintiff’s “trademarks” under the federal statute)

Plaintiff alleges that pages appearing on Defendant’s website misappropriate Plaintiff’s name. This is merely a conclusion, and is ridiculous because all of the pages and content appear on Defendant’s web site, not the Plaintiff’s. The pages contain both factual documents and opinions expressed by Defendant and others relating to Plaintiff or to some of the publicly trade companies that Plaintiff touts. This content is clearly published by the Defendant on
Defendant’s web site, under Defendant’s domain address (mary.cc). The uniform resource locator (URL), as explained above, is a unique address on a computer directory where the document is to be found. The domain portion of the address (i.e. “mary.cc”, with the “cc” being the top-level domain, and “mary” being the registered domain) is alleged to be registered to Defendant (which it is). Plaintiff therefore can make no trademark claim, because it is clear that the federal statute involves registered domain names (see DeGidio v. West Group Corporation, 355 F.3d 506, 69 U.S.P.Q.2d 1538 ( 01/14/2004). The remainder of the address are directory and document file names. No ultimate fact of trademark or other protected content is alleged by Plaintiff to be illegally published by Defendant, and Plaintiff has failed to allege any fact which proves she has registered any trademark which she alleges has been infringed upon. Rather, she appears to be perturbed that the post-domain document path contains her name, “Kathy Knight-McConnell” (which makes sense, since she is the subject of the published documents).

Thus ALL of Plaintiff’s trademark claims appear to be related to the post- domain path of the mary.cc documents. Each web page within a website has a corresponding uniform resource locator ("URL") (e.g., mary.cc/ kathy_knight_mcconnell.htm), which consists of a domain name and a post-domain path. A post-domain path (e.g., /kathy_knight_mcconnell.htm) merely shows how a web site's data is organized within the host computer's files. Interactive Products Corporation v. a2z Mobile Office Solutions, Inc., 326 F.3d 687, 2003 Fed.App. 0111 (6th Cir. 04/10/2003). Interactive Products Corporation is a case on point because the court found that a trademark found in a post-domain path is not protected when it is not likely to cause confusion, because the post-domain path is clearly stated under a fully registered domain name clearly belonging to another person. Further more, no
implication is made as to “source of goods”, nor would any reasonable person infer that the documents are published by any person other than the owner of the domain mary.cc. Finally, no factual allegation is made that “Kathy Knight-McConnell” is even a registered trademark. Even if it was, because it is the name of the person about whom the alleged documents were written, publication of a person’s name in a story or published opinion about the person would constitute fair use.

(2) Alleged Securities Violations. 

Plaintiff’s “Sixth Cause of Action” does not allege even one single fact to bring any claim under Rule 17(b) or Rule 10b-5. Specifically, Plaintiff makes a speculative conclusionary statement that Defendant is acting in the capacity of a “securities advisor”, and that Defendant has received “undisclosed payment” for such. This claim is based upon Plaintiff’s conclusion that Defendant allegedly published on the internet her opinions that the penny stocks being touted by Plaintiff on her web site are not investment quality and that shorting them would be a good strategy.

Plaintiff has alleged no facts (a) identifying any security which was offered, sold, or purchased by any person, or that Defendant is involved in the purchase, sale, or offering of any security; (b) alleging any fact of injury which would give Plaintiff standing in bringing any such claim; (c) alleging any fact that Defendant is an advisor under the Exchange Act; or (d) alleging any fact to support Plaintiff’s conclusion that “upon information and belief, the defendant has been paid in an undisclosed manner...” (see Complaint at par. 38).

Specifically, Plaintiff’s conclusionary statement alleging “fraud” has not been pleaded with particularity as required by Rule 9(b), and therefore must be dismissed WITH PREJUDICE. Rombach v. Chang, 355 F.3d 164 ( 01/20/2004). Plaintiff does not allege negligence on the part of the defendant, and therefore the heightened pleading requirements of Rule 9(b) apply. Ibid.

Plaintiff also states a conclusion of “conspiracy”, but fails to allege one rudimentary fact of who the association of “conspirators” are, knowledge of such a conspiracy, any actionable conduct for which a conspiracy claim can be brought, or how or why the Plaintiff would have standing to bring such a claim. Plaintiff speculates that because Defendant was allegedly called as a witness to testify in a civil fraud case in which Plaintiff is a defendant, that there must be “civil conspiracy”.

Thus, the Plaintiff has not alleged even one rudimentary fact necessary to bring a claim under the federal statutes, let alone to lend this court jurisdiction.

The balance of Plaintiff’s claims are for state and common law claims of false light, defamation, and tortious business interference, and therefore need not be addressed here. While it is doubtful that any of these claims could survive a preliminary motion to dismiss in state court, any state claims which may survive under state pleading rules should be brought in the correct forum in Defendant’s state of residence, not in this federal district court.
Respectfully submitted this 25th Day of May, 2004.
_________________________________
Mary Cummins, Defendant pro se
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Memorandum of Points And Authorities was served on the plaintiff y postage paid U.S. First Class Mail on the date below at the following address:
Kathy Knight-McConnell 
98 Van Cortland Park South # 8C 
Bronx, New York 10463-2921
Dated this 25th Day of May, 2004.
By _______________________________ 
Mary Cummins



Mary Cummins of Animal Advocates is a wildlife rehabilitator licensed by the California Department of Fish and Game. Mary Cummins is also a licensed real estate appraiser in Los Angeles, California.

Mary Cummins, Mary K. Cummins, Mary Katherine Cummins, Mary Cummins-Cobb, Mary, Cummins, Cobb, real estate, appraiser, appraisal, instructor, teacher, Los Angeles, Santa Monica, Beverly Hills, Pasadena, Brentwood, Bel Air, California, licensed, permitted, single family, condo, pud, hud, fannie mae, freddie mac, uspap, certified, residential, certified resident, apartment building, multi-family, commercial, industrial, expert witness, civil, criminal, orea, dre, insurance, bonded, experienced, bilingual, spanish, english, form, 1004, 2055, land, raw, acreage, vacant, insurance, cost, income approach, market analysis, comparative, theory, appraisal theory, cost approach, sales, matched pairs, plot, plat, map, diagram, photo, photographs, photography, rear, front, street, subject, comparable, sold, listed, active, pending, expired, cancelled, listing, mls, multiple listing service, claw, themls,

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