FORD IN REM MOTION 2




		IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION *FORD MOTOR COMPANY, et al.,* Plaintiffs v. Case No. 00-71544 Hon. Gerald E. Rosen *GREAT DOMAINS.COM, INC., et al.,* United States District Judge Defendants ____________________________________/ MOTION OF JOHN HALL, GAPMOUNT, LTD., AND OTHER *EFF DEFENDANTS, UNDER Fed. R. Civ. P. 12(b)(1), TO DISMISS ALL IN REM* CLAIMS FOR LACK OF SUBJECT-MATTER JURISDICTION AND EFF DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT Eric C. Grimm (P58990) David H. Lowenschuss (P53767) CyberBrief, PLC David H. Lowenschuss, PLC 320 South Main Street 2020 Shadford Road P.O. Box 7341 Ann Arbor, MI 48104 Ann Arbor, MI 48107-7341 734.623.9877 734.332.4900 Cindy Cohn, Legal Director (admission application pending) Electronic Frontier Foundation** 454 Shotwell Street San Francisco, CA 94110 415.505.7621 COUNSEL FOR ELECTRONIC FRONTIER FOUNDATION AND DEFENDANTS ROBERT EMMERT, PAUL BROWN, ALFONSO FIERO, JOHN HALL, GAPMPOUNT, LTD., WALLACE RAWSON, RADTECH, AND TOM COOPER. 1. Defendant John Hall^¹ respectfully reincorporates an re-asserts his prior Rule 12(b)(2) and 12(b)(6) Motion to Dismiss, previously filed with this Court. In addition to and without waiving the prior Motion to Dismiss, and on account of the intervening receipt of papers filed by the Plaintiffs involving new legal theories not alleged in the Complaint, Defendant John Hall respectfully moves for the dismissal of the Plaintiffs’ newly-introduced “in rem” claims for lack of subject-matter jurisdiction. 2. Defendant Gapmount, Ltd,^² which has not previously been served (and which is specifically listed in the exhibits to the Plaintiff’s Motion to Publish), expressly asserts, and does not waive, any and all defenses available to it under Federal Rules of Civil Procedure 12(b)(1), (2), (3), (4), (5) or (6). More specifically, by way of this Motion (but at the same time preserving all other grounds for dismissal), Gapmount emphasizes the importance of dismissal of all in rem* claims asserted by the Plaintiff -- because subject-matter jurisdiction to entertain such claims is lacking. 3. Other Defendants represented by the Electronic Frontier Foundation – Robert Emmert, Paul Brown, Wallace Rawson, RADTECH, and Tom Cooper (collectively, with Hall and Gapmount, “EFF Defendants”) – hereby expressly renew and reassert all previously asserted grounds for dismissal of any or all claims filed by the Plaintiffs – including without limitation Rules 12(b)(2) and 12(b)(6). In addition to and without waiving the prior Motions to Dismiss, and on account of the intervening receipt of papers filed by the Plaintiffs involving new legal theories not alleged in the Complaint, the EFF Defendants respectfully move for the dismissal of the Plaintiffs’ newly-introduced “in rem” claims for lack of subject-matter jurisdiction. 4. The specific relief that EFF Defendants seek in this Fed. R. Civ. P. 12(b)(1) motion is the dismissal of any claims by each and all of the Plaintiffs based upon any theory of in rem* jurisdiction, because this Court lacks subject-matter jurisdiction (under section 1125(d)(2) of the Lanham Trademark Act as amended, 15 U.S.C. § 1125(d)(2), or otherwise) to entertain any such in rem claims. 5. Because lack of subject-matter jurisdiction cannot be waived and must be raised by any federal court on its own initiative, it is necessary and proper for this Court to dismiss, for lack of subject-matter jurisdiction, any and all claims by each and every Plaintiff involving any theory of in rem jurisdiction – including, without limitation, all in rem claims against any of the Domain Names belonging to any of the EFF Defendants or any of the 47 Defendants listed in the Plaintiffs’ proposed Order to Publish Notice of Action attached as Exhibit A to Plaintiff’s October 23, 2000 Motion to Publish Notice of Action. 6. Gapmount, Ltd., a British Limited Liability Company owned by EFF Defendant John Hall, is one of the Defendants listed in the Plaintiffs’ Oct. 23 Proposed Order, but the scope of dismissal of any in rem claims should not be limited merely to Domain Names owned by Hall, Gapmount, and the other EFF Defendants. To the contrary, because subject-matter jurisdiction is lacking, Plaintiffs cannot maintain any in rem claims whatsoever in the Eastern District of Michigan. 7. EFF Defendants also respectfully move under Rule 12(e) for a more definite statement because the Complaint completely fails to mention or reference in rem jurisdiction or 15 U.S.C. § 1125(d)(2) in any manner whatsoever. The Complaint on its face purports to proceed exclusively in personam. Accordingly, Plaintiffs’ filings dated October 23, 2000, involved extreme and inexcusable unfair surprise to all Defendants – including Defendants who have not appeared, but who were made the subject of Plaintiff’s ex parte Motion of October 23, 2000. 8. Finally, the Plaintiffs’ Complaint is not verified in accordance with Rules C(2) and/or B(1) of the Supplemental Rules for Admiralty and Maritime Claims. Such verification is required for any in rem ACPA claim filed in federal court, and lack of verification is fatal to subject-matter jurisdiction. The lack of proper verification requires dismissal of any in rem claim that Plaintiffs may retroactively purport to have smuggled into the Complaint. 9. In support of the foregoing motion, EFF Defendants respectfully submit the accompanying supporting memorandum and the Exhibits to it. EFF Defendants have conferred in good faith with counsel for the Plaintiffs, who would not consent to the specific relief requested by EFF Defendants in this Motion. CONCLUSION For the foregoing reasons, EFF Defendants respectfully pray that this Court dismiss all in rem claims involving the Domain Names in question, and issue an Opinion setting forth legal precedent substantially similar to the arguments in the EFF Defendants’ supporting Brief. Respectfully submitted, GAPMOUNT, LTD., JOHN HALL, AND OTHER EFF DEFENTANTS, By counsel, December 7, 2000 ____________________________ Eric C. Grimm (P58990) CyberBrief, PLC 320 South Main Street P.O. Box 7341 Ann Arbor, MI 48107-7341 734.332.4900 David H. Lowenschuss (P53767) David H. Lowenschuss, PLC 2020 Shadford Road Ann Arbor, MI 48104 734.623.9877 Cindy Cohn, Legal Director Lee Tien, Senior Staff Attorney Lauren Gellman, Public Policy Director Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 415.505.7621 COUNSEL FOR ELECTRONIC FRONTIER FOUNDATION AND DEFENDANTS ROBERT EMMERT, PAUL BROWN, ALFONSO FIERO, JOHN HALL, GAPMPOUNT, LTD., WALLACE RAWSON, RADTECH, AND TOM COOPER.. CERTIFICATE OF SERVICE* I certify that the following documents: (1) Motion of John Hall, Gapmount, Ltd., and other EFF Defendants, under Fed. R. Civ. P. 12(b)(1), to dismiss all in rem claims for lack of subject-matter jurisdiction and EFF defendants’ motion for a more definite statement; and (2) Memorandum of John Hall, Gapmount, Ltd., and other EFF Defendants in support of EFF Defendants’ Fed. R. Civ. P. 12(b)(1) Motion to dismiss all in rem claims for lack of subject-matter jurisdiction and EFF Defendants’ motion for a more definite statement; and (3) Motion and Supporting Brief of EFF Defendants for an Expedited Order (a) to Stay Order Granting Plaintiffs’ Motion For Leave to Publish, and (b) to preserve the status quo; and (4) Motion under Local Rule _______ to Exceed 20-page limit for supporting Briefs; were served on the following counsel, by depositing them with the United States Postal Service, with First Class Mail or more expeditious means of delivery prepaid, on or before December 7, 2000: William A Sankbeil, Esq. Thomas Pezzetti, Jr., Esq. Kerr, Russell, & Weber, PLC Smith & Johnson 500 Woodward Ave., Suite 2500 Six Hundred Three Bay Street Detroit, MI 48226 P.O. Box 705 Traverse City, MI 49685-0705 Robert R. Yoder, Esq. 5080 North 40^th Street Lisa S. Gallerano, Esq. Suite 335 Akin,Gump, Strauss, Hauer & Feld Phoenix, AZ 85018 1700 Pacific Avenue Suite 4100 Richard Phillips, Esq. Dallas, TX 75201 Mikkelborg, Broz, Wells & Fryer Suite 3600 Ronald Reagan, Esq. 1001 Fourth Avenue 140 Court Avenue Seattle, WA 98154 Sevierville, TN 37862 Shelly M. Liberto, Esq. Luis Miguel Acosta, Esq. 3 Hutton Centre Drive Plunkett & Cooney Suite 900 505 North Woodward Ave. Santa Ana, CA 92707 Suite 3000 Bloomfield Hills, MI 48304 Kathleen A. Lang, Esq. Dickinson Wright, PLLC Gregory D. Phillips, Esq. 500 Woodward Ave. Howard, Phillips & Anderson Suite 4000 560 East 200 South, Suite 230 Detroit, MI 48226 Salt Lake City, UT 84102 David H. Lowenschuss, Esq. Cindy Cohn, Esq. David H. Lowenschuss, P.L.C. Electronic Frontier Foundation 2020 Shadford Road 454 Shotwell Street Ann Arbor, MI 48104 San Francisco, CA 94110 _____________________________ 1Hall’s previous Motion to Dismiss, dated November 2, 2000, was, is, and will remain on Hall’s own behalf, as well as on behalf of Gapmount, Ltd. To the extent Gapmount, Ltd., is alleged by any Plaintiff to have been served already, then the prior motion of John Hall should be considered to be incorporated herein by reference and to apply equally to Gapmount. Otherwise, Gapmount shall file the appropriate dismissal papers after Gapmount has been served in accordance with the Hague Convention. See note 1, supra. EFF Defendants therefore respectfully renew John Hall’s previous Motion To Dismiss, both as a Motion by Hall individually, and (to the extent necessary) as a Motion by Gapmount, Ltd., to dismiss under Rules 12(b) (1), (2), (3), (4), (5), and (6) of the Federal Rules of Civil Procedure. Under no circumstances whatsoever does Gapmount purport, by way of this Motion or otherwise, to waive any defenses available to it under Rules 12(b)(1), (2), (3), (4), (5) or (6) of the Federal Rules that may be available to Gapmount, and all such defenses are hereby specifically asserted. 2Gapmount, Ltd., has never been served in accordance with the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents In Civil or Commercial Matters, 20 U.S.T. 361, 658 U.N.T.S. 163 (1965), as Fed. R. Civ. P. 4(f)(1) requires. Treaty obligations of the United States government require that all subjects of the United Kingdom are entitled to insist upon strict compliance with the Hague Convention. Accordingly, Gapmount is not subject to any jurisdiction of this Court, whether that jurisdiction is labeled in rem or in personam. John Hall has previously moved to dismiss under Rules 12(b)(2) and 12(b)(6) of the Federal Rules. The filing of dismissal papers with this Court by Hall and/or by Gapmount does not subject them to any jurisdiction of this Court. Harrods Limited v. Sixty Internet Domain Names, 110 F. Supp. 2d 420, 422-23 (E.D.Va. 2000) (in rem action is brought against hypothetical res, not its owner, and no personal jurisdiction over the owner of the res is acquired by bringing such an action or by owner’s filing dismissal papers). Moreover, Defendants’ filing of sworn testimony in support of their dismissal papers does not subject them to jurisdiction. Caesars World, Inc. v. Caesars-Palace.Com, 112 F. Supp. 2d 505, 509 (E.D. Va. Aug. 25, 2000). Hall, Gapmount, and the other EFF Defendants all expressly rely on this precedent, both as a limitation on the Court’s jurisdiction, and in support of their procedural right to seek dismissal of the improper claims lodged against them by Plaintiffs.


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