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Asis Internet v. Rausch (N.D. Cal.) - Order granting summary judgment for Asis

Asis Internet v. Rausch (N.D. Cal.) - Order granting summary judgment for Asis

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Asis Internet is awarded $2.5mm in damages on its CAN-SPAM claims. Defendant failed to respond to Requests for Admission and didn't seem to defend the case.
Asis Internet is awarded $2.5mm in damages on its CAN-SPAM claims. Defendant failed to respond to Requests for Admission and didn't seem to defend the case.

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Published by: Venkat Balasubramani on May 05, 2010
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12/02/2012

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UnitedState
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ofCaliforni
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Plaintiff dismissed Defendant Mark Theis on March 2, 2009.
UnitedState
sDistrictCo
urt
FortheNorth
ernDistrict
ofCaliforni
a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ASIS INTERNET SERVICES, et al.,
Plaintiffs,
v.
RICHARD RAUSCH, et al.,
Defendants.
/
No. 08-03186 EDL

ORDER GRANTING PLAINTIFFS\u2019
MOTION FOR SUMMARY JUDGMENT,
GRANTING PLAINTIFFS\u2019 MOTION TO
SEVER, DENYING AS MOOT
PLAINTIFFS\u2019 MOTION TO DISMISS
AND GRANTING LEAVE TO FILE
AMENDED COMPLAINT

Plaintiffs Asis Internet Services and Joel Householter, dba Kneeland Engineering, dba
Foggy.net allege that they have received 24,724 unsolicited commercial email advertisements from
Defendants1 Richard Rausch, Kirk Whiting, and Edward Heckerson, who are individuals doing
business as Find a Quote. Plaintiffs allege that Defendants have violated the Controlling the Assault
of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), 15 U.S.C. \u00a7 7701 et
seq., which restricts the transmission of unsolicited commercial email.

On October 16, 2008, the clerk of the court entered default against Rausch and Whiting. On
March 19, 2009, the clerk entered default against Heckerson. On July 7, 2009, the parties stipulated
to set aside default against Heckerson. Also on July 7, 2009, Plaintiffs withdrew their motion for
default judgment against Rausch, Whiting and Heckerson. On September 3, 2009, the parties
stipulated to set aside the default against Whiting. Rausch remains in default.

On September 8, 2009, Heckerson and Whiting answered the amended complaint. On October
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Plaintiffs and Heckerson have consented to this Court\u2019s jurisdiction pursuant to 28 U.S.C.
\u00a7 636(c).
2

30, 2009, Plaintiffs filed a motion for summary judgment against Heckerson, and later filed a proof of service dated October 30, 2009. The motion was set for hearing on December 22, 2009. When Heckerson did not file an opposition, the Court continued the hearing and provided another

opportunity for him to oppose. Despite the continuance, Heckerson did not file an opposition to the
Motion for Summary Judgment by the December 29, 2009 deadline. Accordingly, the Court held a
hearing on Plaintiff\u2019s motion for summary judgment on January 19, 2010. At that hearing, the Court
permitted Plaintiffs to file additional briefing on the question of whether Plaintiffs had standing.
On February 9, 2010, Plaintiffs filed a supplemental declaration of the president of Asis
Internet Services in support of Plaintiff\u2019s standing. Later, on February 18, 2010, Plaintiffs filed a
Motion to Dismiss Defendant Whiting and a Motion to Sever Defendant Rausch. No Defendant
opposed the motions. On March 30, 2010, the Court held a hearing on the Motion to Dismiss and

the Motion to Sever, and a further hearing on the Motion for Summary Judgment. The Court
provided Plaintiffs another opportunity to file additional briefing on the issue of damages under the
CAN-SPAM Act, which Plaintiffs filed on April 2, 2010.

For the reasons stated at the January 19, 2010 and March 30, 2010 hearings and in this Order,
Plaintiffs\u2019 Motion for Summary Judgment is granted, Plaintiffs\u2019 Motion to Sever is granted, and
Plaintiffs\u2019 Motion to Dismiss is denied as moot because the Court granted Plaintiffs leave to file an
amended complaint.

Motion for Summary Judgment against Defendant Heckerson2
Facts

Plaintiff Asis Internet Services is an internet access service, in operation since 1995, in
Garberville, California. See White Decl. \u00b6 2. Asis owns various domain names used to provide
internet and email services. See id. \u00b6 9. Asis provides dial-up and broadband internet and email
service to much of the population of Garberville. See id. \u00b6 2. Asis has just under 1,000 internet
access and email customers. See id. Asis provides its services through its own equipment, service
agreements with Postini, Falcon Knight, AT&T and other vendors, and its team of four employees.

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3
See id. \u00b6 7.

Asis receives approximately 200,000 spam emails per day to all of its and its customers; email
accounts, both active and inactive. See White Decl. \u00b6 5. It costs approximately $3,000 per month to
process spam emails in both processing and employee costs. See id. Some emails have a higher
cost if they contain viruses or hacker software, or if they result in customer complaints. See id. Asis
occasionally suffers network and server slow downs based on daily receipt of spam emails. See id.

Between November 16, 2006 and May 5, 2008, Asis received 24,724 emails from Defendants
that are the subject of this case. See White Decl. \u00b6 6. Asis received the emails first on its filtering
service operated by Postini, then transferred, processed and stored the emails on its email server, and
then transferred the emails to its attorney where they were stored on a special spam storage and

investigation server. See id.; Ex. C.
Legal Standard

Summary judgment shall be granted if \u201cthe pleadings, discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.\u201d Fed. R. Civ. Pro. 56(c). Material facts are those which
may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return
a verdict for the nonmoving party. Id. The court must view the facts in the light most favorable to
the non-moving party and give it the benefit of all reasonable inferences to be drawn from those
facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must
not weigh the evidence or determine the truth of the matter, but only determine whether there is a
genuine issue for trial. Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999).

A party seeking summary judgment bears the initial burden of informing the court of the basis
for its motion, and of identifying those portions of the pleadings and discovery responses that
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively
demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue
where the nonmoving party will bear the burden of proof at trial, the moving party can prevail

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