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RICHARD M. SCOVILLE,
Ú ÅDISTRICT COURT
INDIVlDUALL Y, AND ON BEHALF OF
FREE SPEECH STORE aIkIa FSS,
JUDICIAL DISTRICT COURT
BRIAN J. BRUNS alk!a
ABUSIVE HOSTS BLOCKING LISTS,
THE SUMMIT OPEN SOURCE
SOSDG.ORG, ANDREW D. KIRCH
aIkIa D&K CONSULTING, AND
BEXAR COUNTY, TEXAS
Andrew D. Kirch, Abusive Hosts Blocking Lists, AHBL.ORG, The SUit Open
Source Development GrouP. SOSDG.ORG. D&K Consulting and treIane.net
("Defendants") file this. their Special Appearance. based upon the following:
Î. Plaintifs in this case, Richard M. Scoville, FREE SPEECH STORE aIkIa FSS,
and FreeSpeechStore.com (collectively. "Scoville") have sued Defendants, Andrew D.
Kirch. Abusive Hosts Blocking Lists. AHBL.ORG, The Summit Open Source
Development GrouP. SOSDG.ORG, D&K Consulting and trelane.net (collectively,
DEFENDANTS' SPECIAL APPEARANCE PAGE Ì OF IU
"Kirch"), among others. Scoville has obtained a Temporary Restraining Order
preventing Kirch from actions which Scoville alleges have damaged him and his Interet
business, Free Speech Store, and FreeSpeechStore.com ("F8S") in an amount in excess
of $3 .525 million. Scoville claims Kirch's operation of Abusive Hosts Blocking Lists
and The 8U it Open Source Development Group ("AHBL" and "80800",
respectively); passive websites have committed varous torts against Scoville.
2. Scoville seeks: $2,000,000 in damages for the loss of "benefit of the
bargain" to negotiate and conduct business in good faith;
$1,000,000 in damages to his personal business credit;
$500,000 for personal emotional distress, including
humiliation and embB sment i the UseNet portion of
the Interet; and
$25,000 for the cost of constantly changing ISPs, and his
escalating costs of maintaining an ongoing business.
3. Even if Scoville could recover on these curiously plead claims, Kirch is not
subject to the jurisdiction of this Court, and as a non-resident of Texas, who has neither
availed himself of the privilege of conducting business here, nor maintained continuous
and systematic contacts with the State, Kirch cannot be sued in the Texas Courts simply
because Scoville seeks to use the Courts to bully Kirch into stopping what is "damaging"
Scoville's business. Tat is, alerting the Interet public to those who are kown to
pepper cyberspace with Unsolicited Commerial E-mail ("UCE") and Unsolicited Bulk
E-mail ("UBE); that which we all unkindly and commonly know as the dreaded, eteral,
uninvited, and most unwanted "æzæ"
DEFDANTS' SPECIAL ApPEARANCE PAGE ZOF !û
4. Kirch is not a resident of Texas, and has had no purposefl contacts with this'
state. Andrew D. Kirch is and individual who resides in the State ofIndiana. (See.
Affidavit of Andrew D. Kirch ("Kirch Afdavit") attached hereto as Exhibit "A").
AHDL and SOSDG are unincorporated, web domains located on Kirch's personal web
server, located in his Indiana home. These domains, commonly known as websites are
what are known as "passive" websites, created exclusively for the purpose of tacking
Interet "spammers". Many spU ers, like Scoville, send unwanted messages to the
Interet community, ofering connections to various, seemingly-desirable "lins". The
Interet user soon discovers, however, that these unwanted messages jam up their
computers, impair the use of one's own systems, and offer information, unasked-for in
the first place, for a price.
5. Passive sites such as the Kirch websites offer information about spam, and about
computer security to the Interet public at no cost. These websites provide neither
facilities nor any method whereby an Interet user can purchase services from Kirch, the
site owner, or the domains AHBL andlor SOSDG. These passive sites are called "good
Samaritan sites" by the United States Goverent. (See. 47 USC 230 § (c)(!) and(2)(A)
6. The other "Kirch" Defendants named in this case by Scoville, AHBL.ORG,
SOSDG.ORG, D&K Consulting and trelane.net are either repetitive names for the
Defendants discussed above (AHBL.ORG is the "address" for AHBL, and not a separate
DEFENDANTS' SPECIAL ApPEARANCE PAGE óOF ÌÛ
entity; the same is true for SOSDG.ORG and SOSDG; trelane.net is merely the domain
used personally by Kirch to send and receive email, and D&K Consulting is an entitY
once formed by Kirch and Brian J. Bruns, but which hnever been used for any purpose
whatsoever)(See. Kirch Afdavit, Exhibit "A").
7. The Kirch Defendants incorporate the Kirch Afdavit, as if flly set forth herein,
to establish the facts demonstrating their lack of contact with the State of Texas. To
summarize a few such facts, none of the Kirch Defendants have never done business in
Texas, owned real or personal property located in Teas, contcted with any person or
entity in Texas, sold or purchased any goods or services in Texas, employed anyone, or
been employed by anyone in Texas, borrowed or loaned any money to or fom any Texas
resident or entity, nor have they contracted with any person or entity in this State.
Further, none of the Kirch Defendants have purposeflly directed any activities toward
Texas, nor had continuous and systematic contacts with Texas.
8. Texas courts do not have jurisdiction over a non-resident defendant unless the
non-resident defendant has purposeflly established "um contacts" with Texas, and
the exercise of jurisdiction comports with "fair play and substantial justice." Burger King
Corp. V. Rudzewicz, 471 U.S. 462,474-76,105 S. Ct. 2174, 2183-84(1985); Guardian
Royal Exch Assur., Ltd. V. English China Clas, J. L. C. 815 S. W. 2d 223, 226
DEFENDANTS' SPECIAL ApPEARANCE PAGE ¬OF ÍÛ
9. Under minimw contacts analysis, Texas courts must detennine whether the non
resident defendant has purposefully availed itself of the privilege of conducting activities
within Texas. Guardian Royal. 815 S. W. 2d at 226; see CSR Ltd V Link, 925 S.W. 2d
591,596 (Tex. 1996). Minimwn contacts are not establishes unless the court finds it h
either specific or general jurisdiction over the defendant. See Guardian Royal. 815 S. W.
2d at 227-28.
10. Texas courts cannot exercise specific jurisdiction over a non-resident defendant
unless the non-resident defendant's activities were "purposely directed" to Texas, and the
litigation results fom injuries that are alleged to "arise out of' or "relate to" those
activities. National Indus. Sand Ass'n V. Gibson, 897 S.W. 2d 769,774 (Tex 1995);
Shlobohm V. Schapiro, 784 S.W. 2d 335, 358 (Tex. 1990); see Helicopteros Nacionales
de Columbia, SA. V. Hall. 466 U. S. 408, 414,104 S. Ct. 1868, 1872 (1984); Guardian
Royal, 815 S. W. 2d at 227. Texas courts do not have specifc jurisdiction over defendant
be cause defendant did not purposeflly direct his/its activities to Texas, and plaintif s
cause of action did not arise from or relate to defendant's contacts with Texas. Rather,
plaintifs cause of action, if any, arose fom the decisions of individual Interet users to
block unwanted spam, andlor to pay a fee for information or services associated with
links given on Scoville's spam. Furthennore, the only conduct at issue in this case is the
creation and maintenance of a website in Indiana where infonnation can be provided
DEFENDANTS' SPECIAL ApPEARANCE PAGE50FIO
about abuse from Scoville's (or any other spU er's) web presence was undertaken by
Kirch in Indiana. Kirch's actions took place far outside of Texas, and entailed no contact
at all with the State of Texas. The Fifh Circuit, along with the vast majority of the
federal courts has held that the mere viewing of a non-resident defendant's passive
website is insufcient to warrant the assertion of personal juisdiction. Mink v. AAAA
Development, 190 F 3d 333 (6'"Cir. 1999). In that case, the court held that a Vermont
company could not be sued in Texas where a passive Interet site allowed viewers to
send emails to the defendant company. Id A New York federal court refsed to allow
jurisdiction against an out of state defendant because a "Web site that can be accessed
worldwide" is not the equivalent of actively seeking New Yorkers to access the site,
especially where the defendant conducted no business in New York Bensusan Rest.
Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), af'd, 126 F. 2d 25 (2d Cir. 1997).
Creating a website, like placing one's product into the steam of commerce, may be felt
nationwide, or even worldwide, but without more, is not an act puroseflly directed at
the forum state. Id, Citing Asahi Meta/Indus. Co. v. Superior Court, 480 U. S. 102, 112
DEFENDANTS' SPECIAL ApPEARANCE PAGE 6 OF 10
11. Kirch, an Indiana resident, afer receiving 5coville'r rpamon Kirch's email
server, as well as on his Net News Server, also located in Indiana, noted this activity on
his passive web domain, which was created in Indiana. Kirch thereafer posted the email
volleys he received/om5covde, and his response to those volleys, pursuant to the
Kirch sells nothing to Texas residents, or anyone else. He has never lived in, worked in,
or even been to Texas. Surely, this is not a defendant who could have reasonably
anticipated being haled into court in Texas.
12. Texas courts cannot exercise generl jurisdiction over a non-resident defendant,
unless the defendant has continuous and systematic contacts with Texas. Guardian
Royal. 815 S. W. 2d at 230.; see Helicopteros, 466 U. S. at 416,104 S. Ct. at 1873;
Siskind V. Villa Found For Educ .. Inc., 642 S. W. 2d 434, 438 (Tex. 1982). Texas has no
general jurisdiction over the Kirch defendants, because they have had nocontacts witb
Tmas. much less any that can be described as continuous and systematic. (See Kirch
Afidavit, Exhibit "A".)
DEFENDANTS' SPECIAL ApPEARANCE PAGE70F ÌÛ
13. This court's assumption of jurisdiction over the Kirch defendants will ofend
taditional notions of fair play and substantial justice, inconsistent with the Constitutional
requirements of due process. See International Shoe Co. V. Washington, 326 U.S. 310,
316,66 S. Ct. 154, 158 (1945); Guardian Royal, 815 S.W. 2d at 231. The Court should
refse to exercise jurisdiction over the Kirch defendants because to do so would drag
these defendants over a thousand miles fom their resident state; because Texas hno
special interest in adjudicating the Plaintifs purorted claims, none of which arose in this
state; and, to do so would clearly interfere with the interstate judicial systems' interest in
obtaining the most efcient resolution of contoversies. Even the plaintif cannot obtain
the most convenient and efective relief when his home state eroneously exercises
jurisdiction where it has none. Finally, such an exercise of jurisdiction in this case would
have only the most chilling efect on the free speech of the citizens of our country, and
indeed of the world, which is now bound together by ou computerized communications
"net." We must guard the right not U be dragged into foreig jurisdictions without cause.
See Guardian Royal, 815 S. W. 2d at 231.
DEFENDANTS' SPECIAL APPEARANCE PAGE öOF ÍÜ
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SANA^, ÍEYAS 78216
(210) 541-3906 (FACSIMILE)
ATTORNEY FOR DEFENDANTS,
ANDREW D. KIRCH, ABUSIVE
HOSTS BLOCKING LISTS,
THE SWrOPEN SOURCE
IDIUAlY, AON ÆOF
zMLSTOR a/k/a FSS,
45¯ ]lL OLL
m).BUNS a/k/ a '
AUHOSS BLOCG LI,
SOSG.ORG, A8D. XL
a/k/a LCONTG, A
BE COU, ¯
PAV OF /W L. &
County of M
Before Me, te unded att ap eared A D. K
who, bei by me duy 8depsed ad stated õ follows.
1. Mv æumD. K Iæone of the Defedat m the
aove-capt Wt ("e Lwsut"). I æ u te ae Of 1b
yes, of 8d mæWW1C bee ce of a fony or
a O ulV m mU 1 DW peso kwledge of
t fcts stted WUA0WLand tey ae te ad corect.
12-28-2005 08:07 MARY CLAIRE FISCHER 210 541 3906
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12-28-2005 08:08 MARY CLAIRE FISCHER 210 541 3906
tbOO to represet D. A SOSG, ad DPn�t i U Lat). I
DW OC WØ ]U Um aone i me Sæte of Tes ude
ay coat o ageet, or fo te pu or 80 0 ay goo o
b. Î bW ne, iddual y, O trou A SOSG o te.net,
loaned Oey U aoe l i o locate i U Stte of Teas. I hav
ww. m V. O muæmSOo Unt, se ay
loa made to M, mMor te.et, o mD Æ Mo
tae.et, wt a p lote DÚSmteof Tes. I do not O,
1W DÎ BW Wa ba accot ÐmeSmteof TW No of A
SOSG o UPnt O æMU h t ev W a Daccout m
6. I æ U sole pto, ower ad opeator of me Æ ad
SOSG 0. Nete of tee 0 W icoed OMO
õ stated by U ¥MU i meLwL Along wt ote idvds,
who pOvded mæwok on a vlut bass, wtout coeaton, I
ceated tes to do i m M U0 ad bm of 0 õ
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tat % wat W popuy kw õ ¨MM¯ to iteet Q8W8. ¯0
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12-28-205 08:08 MARY CLAIRE FISCHER 210 541 3906
mmU 1noted t:t æsæeslofU8pæO
P M >. ¯O%O. 1 Æ w dtæ me WU
WwU M ote & D SW 1D 3 Stoe a/t1 a FSS,
ad/or PeSpeecSto.o m æ uÞ w te cely stated,
WUO PO ?æ psæ O A M SOSG, tse tate
rwee 8pstæO^ad SOSG.
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æ ae m0 Î T= Ù M at te Ptfs on m
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