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Silverstein v. e360Insight, David Linhardt, BARGAIN DEPOT ENTERPRISES, LLC AKA BARGAINDEPOT.NET, DAVID LINHARDT, MONIKER ONLINE SERVICES, LLC, et al.

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May 19, 2008Filed my answer to e360's SLAPP counterclaim.
May 5, 2008Court entered its rulings on Defendants' summary judgment motion and my anti-SLAPP motion.
April 15, 2008Submitted a copy of another judge referring to e360Insight as a spammer to the Court (as a request for judicial notice).
April 7, 2008The judge issued a tentative ruling. After arguments she ruled that the summary judgment motion is denied. That my anti-SLAPP motion is granted on the abuse of process claims, and them paying my attorney fees are mandatory. The Court will further review the evidence as to e360's status as a limited public figure.
March 31, 2008Defendants file their reply brief to my opposition to their summary judgment motion.
March 31, 2008Filed my reply brief to e360Insight / Bargain Depot's opposition to my anti-SLAPP motion. My spending 2.5 hours discussing the issue by phone on the phone with them and providing them with a copy of the brief almost a month before filing is clearly a sufficient meet and confer. Defendants ignore the evidence, without disputing it, showing the they do spam and lie. Others, John Ferron and Mark Ferguson, received spam from them. The expert declaration from John Levine, the author of Internet for Dummies, Fighting Spam for Dummies, and Qmail, pretty much destroys the remainder of their arguments. Dr. Levine destroys their argument that "if the IP address don't fit, then you must acquit" by not only only does he explain that the use of Botnets and Atriks' service, that he has seen reliable reports that e360/BDE uses Atriks. Levine further opines that the use of multiple anonymously registered domain names is an indication that e360Insight/BDE spams. Dr. Levine also points out that e360Insight has a well known reputation for spamming, long before anything I said.
March 28, 2008Filed my opposition to their summary judgment motion.
March 24, 2008Defendants filed their opposition to the anti-SLAPP motion, Kish'd declaration., and Linhardt's declaration. Most of their argument is that my 2.5 hours of talking to Kish was not a sufficient meet and confer, but despite a copy of the proposed motion. They claim that I produced no evidence of their spam, ignoring that I not only provided Kish with a sample of the spam, but included two samples as exhibits in the anti-SLAPP motion.  They provide NO evidence (except Linhardt's declaration) that e360Insight does not send spam. Defendants do not dispute that they are responsible for the samples provided. (Though they, in their summary judgment motion claimed its not theirs since it did not come from their IP address. It must have been spoofed by someone out to get them, they didn't mentioned that they used ATRIKS which hides their IP address).
March 12, 2008Filed an anti-SLAPP motion against Defendants' counterclaim. The judge refused to permit me to represent myself on Defendants' ridiculous Counterclaim. By requiring me to pay an attorney to represent me on the Counterclaim, Defendants' win by requiring me to pay additional costs to defend their SLAPP action. Coming soon, E360Insight and David Linhardt v. DOES 1-1,200,000,000 for failing to accept his e-mail and calling him a spammer. David Linhardt will be quoted in this complaint as saying, "These people specifically opted in for my e-mails by including an '@' in their e-mail address."
February 28, 2008The Court would not let me represent myself in the countclaim pro se. The Court allowed e360Insight/BDE/Linhardt to win by forcing me to retain counsel to handle their SLAPP counterclaim.
January 20, 2008I received this letter from Joseph Kish, threatening me with violations of trademark law for using a custom e-mail address solely for my communications with him. It may have worked if I was not aware of Taubman v. Webfeats of 319 F.3d 770 (6th Cir. 2003) and Ford Motor Co. v. 2600 Enters., 177 F. Supp. 2d 661. Given the three lawsuits against NANAE members, the suit against Spamhaus, the suit against Comcast, and the counterclaim against me, one would wonder if the firm litigates legitimate cases. I wonder if anybody has registered www.synergylawsucks.com?
January 19, 2008I filed my anti-SLAPP motion. My declaration, plus exhibits showing that Linhardt said they never e-mailed me, and that I received spam from them. And Bari Nejadpour's declaration showing that I provided samples to them, that he just didn't like the redactions -- which directly contradicts Kish's sworn statement that the e-mails were never provided to him. Also a request for judicial notice, of all the other lawsuits they filed claiming lots in damages. Exhibit A, Ferguson I, Exhibit B, Ferguson II, Exhibit C, The Comcast Case, Exhibit D, Ferguson III ,Exhibit E, David Linhardt's declaration for a judgment in the Spamhaus case.
January 29, 2008e360 and Bargain Depot filed their counterclaim. This counterclaim is for defamation and abuse of process.
January 28, 2008The Court granted e360Insight and Bargain Depot's motion to add counterclaim. The next step is to file an anti-SLAPP motion.
January 21, 2008e360Insight and Bargain Depot Enterprises file their reply brief. In claiming that it is unclear why  F. Bari Nejadpour would not conflicted out implies that Kish does not recall the disqualifiedcounterclaim\antislapp.pdf e360's attorney appears not to understand one of the requirements of a libel claim -- publication.  Kish keeps banging on the drum that I have no basis to bring the claim -- ignoring the fact that I have received spam, but provided him with copies of the spam. Kish lies to the court in paragraph 2 of  his declation, saying that the e-mails complained of "have never been provided to Defendants." In fact, I provided samples of the e-mails, and Kish complained the samples were useless without having the  destination e-mail address.
January 11, 2008Filed my opposition to e360's counterclaim. They offer no reason why they are over two months late, and ignore that this will conflict my attorney account (F. Bari Nejadpour) out of the case.
December 26, 2007e360Insight and Bargain Depot Enterprises files a motion to add a counterclaim. The Counterclaim is for libel and abuse of process. The libel claim is for:
  1. my attorney's web site quoting me saying that "I don't like bullies and liars" saying that e360 didn't lie in the litigation. Really?? To get out of this case (based on jurisdiction) Linhardt stated that wwhen he stated under oath in teh Spamhaus case, "e360 and I lost..." he really meant "e360 and I in my role as president," but ignores that in the Spamhaus case that he sued in his individual capacity. Linhardt also says he never sent spam to an e-mail address (claiming he recognized it as a trap address), but I have spam that was sent to that address.
  2. In my request for a retraction, I demand that Linhardt place a link to http://www.calspam.com on every page of e360's web site, so that e360's customers know that e360 is being sued for illegal spamming. This case, is for illegal spamming. Another case, Ferron v. e360insight et al. is also for illegal spamming.
  3. I asked why Linhardt filed a counterclaim and said, "because I sued you for illegal spamming?" What is this case about? My good looks?

The abuse of process claim is that I filed this  without basis and because I demand a list of domain names so that I can definitively identify ALL the spam from them and not provide them with internal working of my servers and e-mail addresses without a protective order in place. I guess that e360's attorney forget about the litigation privilege under California Code of Civil Procedure § 47.

October 15, 2007e360Insight and Bargain Depot Enterprises files an answer. Moniker online Services files an answer. Apparently Kish believes that late is better than never. The Court, again, allows Kish to file late.
10/1/2007"Denied, Denied, Denied, Denied, Denied, Denied, Denied, Denied, Denied!," the Court said to e360 and Linhardt.

The Court denied every request of Defendants to dismiss the amended complaint. Moniker is the first registrar that may be held liable for providing anonymous registration services to a spammer.

My motion for reconsideration was denied. The Court did not want to change its mind.

The Court's ruling is here.

9/24/2007Filed my reply to Linhardt's opposition to my motion for reconsideration.

Defendants filed, late, their reply to my opposition to their motion to dismiss under 12(b)(6).

9/7/2007Filed my opposition to Defendants' motion to dismiss.
 

Defendants filed their opposition to e360Insight

8/24/2007e360Insight filed their second motion to dismiss. Mostly a rehash for the last one. Of course, Defendants say that since we didn't provide them with copies of the spam, the Court has to dismiss because there is no evidence. I have asked them for an accurate copies of all of their domain names so that I can accurately identify all of their spam, why haven't they provided it??? I guess they know the results and they are afraid to have the truth known. Defendants claim that Linhardt is personally responsible for the libelous statements and that the statements were not libelous as it referred to a "class of people", not Silverstein. This is scheduled to be heard on October 1, 2007.

I filed my motion for reconsideration on Linhardt's dismissal for personal jurisdiction. This is based on Linhardt opposing the motion to dismiss for lack of jurisdiction in e360Insight and Linhardt v. Ferguson, et. al.   This is to be heard on October 15, 2007.

8/7/2007The Court ruled. Specific jurisdiction over Moniker. No jurisdiction over Linhardt. I will file a motion for reconsideration. This now gives me a chance to attack a spammer's favorite tool -- domain privacy services.
8/3/2007Linhardt and Moniker filed their supplemental reply brief. Before Linhardt claimed that he has no mailing address in California, now when caught with his pants down, he claims it is only for business. Linhardt that when he submitted the affidavit in Spamhaus he really meant that e360 lost the business, not him.  Is he lying now or was he lying then? Of course, Defendants attorney promised to e-mail the brief. Lihardt's attorney e-mailed it the following day (Saturday) so that my attorney would not receive it until just before the hearing.
7/29/2007Filed my supplemental brief opposing Linhardt's and Moniker's 12(b)(2). Linhardt's has an address in California and has claimed in his suit against Spamhaus that "e360 and I lost" millions of dollars with seven companies, 4 of which are in California. Moniker has 2.3 million domain names, 478,993 are registered in California. Moniker has 43,835 customer accounts, 5,238 of which are in California. Given this information, it is hard ese how either Linhardt or Moniker claim that they don't do business in California.
7/24/2007Filed my amended complaint. Added claims for trespass to chattel, California Penal Code §502, negligence per se and libel per se.
6/25/2007Had my hearing on e360's 12(b)(2), 12(b)(6), and 12(f) and my motion to strike and remand.

The judge denied my motion to strike Defendants' fraudulent notice of interested parties and to remand stating that the Federal Court has jurisdiction. She is correct, that the Court has jurisdiction, both on federal question and diversity. She ignored Defendants' lies and implied procedural requirement to tell the truth.

Judged granted their motion to dismiss, with leave to amend. She did, however, deny their motion to dismiss based on preemption. The ruling is here.

Linhardt's and Moniker's 12(b)(2) motion (dismiss for lack of jurisdiction) was continued with leave for discovery. We were instructed to file supplemental briefs on jurisdicton.

6/18/2007Defendants filed their reply to my opposition to their motion to dismiss. Defendants' They broke their agreement to provide their briefs in electronic form, the same day.
6/18/2007Filed my reply to Defendants' opposition to my motion to strike and remand.
6/11/2007Filed my opposition to Defendants' motion to dismiss.
6/11/2007Defendants filed their opposition to my motion to strike and remand. Their motion amounts to nothing more to hand waiving and more deceit. Linhardt claims that a Maverick, the sole member of e360Insight, is not the parent company of e360. However Defendants conceded that the beneficiaries of Spamhaus injunction have a pecuniary interest in the outcome of this case.
5/29/2007Filed a motion to strike and remand. Defendants filed a fraudulent Notice of Interested Parties (a requirement under Local rule 7.1-1). Where Defendants failed to comply with the local rule in their removal, then the removal is invalid and the case should be remanded to state court.
May 7, 2007Defendants filed a motion to dismiss under FRCP 12(b)(2), 12(b)(6), and 12(f) claiming:
  • there is no jurisdiction over Linhardt and Moniker in California;
  • that CAN-SPAM and California Business & Professions Code § 17529.5 is subject to fraud pleading requirements and it the complaint was not pled to that level;
  • that Linhardt and Moniker did not violate either statute because it is illogical that more than one person initiated the spam;
  • California Business & Professions Code 17529.5 is preempted by CAN-SPAM;
  • and that punitive damages should be stricken;
Defendants improperly served this motion upon my counsel. Defendants filed the motion, then served it (with a sworn declaration that they served it and mailed it). The rules require that the motion is served and then filed. Even so, the sworn declaration stated that the copy of the motion was placed in the mail on May 7, but the postage meter mark stated that the postage was applied to the envelope on May 8. Defendants also ignored the rule that required a table of contents and table of authorities. Apparently spammers' attorneys don't believe that the rules apply to them.
4/30/2007Defendants removed to Federal Court. Central District California Case number CV07-02835-CAS (VBKx).

I agreed that Moniker would not have to defend or be subject to damages, if they would agree to respond to discovery regarding Linhardt's domain names and be subject to court orders regarding those domain names.  Moniker breached their agreement so now they will be held liable for their business practice of hiding spammers by using false domain name registrations (18 U.S.C. 1037(a)(4)). But, since they decided to

3/16/2007Filed original lawsuit against e360Insight, Bargain Depot Enterprises, LLC AKA BargainDepot.net, David Linhardt, Moniker Online Services, LLC, et al. Los Angeles Superior Court Case number BC368026.
 

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