Gordon v. Impulse Marketing Group Inc, No. 2:2004cv05125 - Document 269 (E.D. Wash. 2006)
Court Description: ORDER DENYING MOTIONS TO DISMISS: Denying 40 Motion to Dismiss Third-Party Defendants and Counterclaims, Denying 155 Motion to Dismiss, Denying 158 Motion to Dismiss, Denying 161 Motion to Dismiss, Denying 164 Motion to Dismiss, Denying 167 Motion to Dismiss, Denying 177 Motion to Dismiss . Signed by Judge Fred Van Sickle. (SAP, Case Administrator)
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Gordon v. Impulse Marketing Group Inc Doc. 269 Case 2:04-cv-05125-FVS Document 269 Filed 03/09/2006 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON 3 4 5 JAMES S. GORDON, JR., an individual residing in Benton County, Washington, 6 7 8 9 10 11 12 No. CV-04-5125-FVS Plaintiff, ORDER DENYING MOTIONS TO DISMISS v. IMPULSE MARKETING GROUP, INC.,a Nevada Corporation, Defendant. IMPULSE MARKETING GROUP, INC., Third-Party Plaintiff, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 BONNIE GORDON, JAMES S. GORDON, III, JONATHAN GORDON, JAMILA GORDON, ROBERT PRITCHETT and EMILY ABBEY, Third-Party Defendants. BEFORE THE COURT is Plaintiff's Motion to Dismiss Third-Party Defendants and Counterclaims Under FRCP 12(b)(6) or in the Alternative Motion for Summary Judgment under FRCP 56 or in the Alternative to Dismiss under FRCP 9(b) (Ct. Rec. 40); Jonathan Gordon's Motion to Dismiss (Ct. Rec. 155); Bonnie Gordon's Motion to Dismiss (Ct. Rec. 158); Robert Pritchett's Motion to Dismiss (Ct. Rec. 161); Motion to Dismiss by James S. Gordon, III (Ct. Rec. 164); Jamila Gordon's Motion to Dismiss (Ct. Rec. 167); and Emily Abbey's Motion to Dismiss (Ct. Rec. 177). Douglas McKinley. Plaintiff is represented by Defendant is represented by Floyd Ivey, Sean ORDER DENYING MOTIONS TO DISMISS - 1 Dockets.Justia.com Case 2:04-cv-05125-FVS 1 Moynihan, and Peter Glantz. 2 proceeding pro se. 3 I. Document 269 Filed 03/09/2006 The Third-Party Defendants are BACKGROUND 4 Plaintiff, James Gordon, is a Washington resident and the 5 registered user of the internet domain name “Gordonworks.com.” 6 Defendant, Impulse Marketing Group, Inc. (“Impulse Marketing”), a 7 Nevada corporation, is an electronic marketing company that transacts 8 business with Washington by sending commercial electronic mail 9 messages (email) to Washington state residents. Impulse Marketing 10 operates by collecting personally identifiable information from 11 individuals who sign up to receive free products and/or services at 12 websites run by Impulse Marketing and/or its marketing partners. 13 consideration for receiving free products and/or services from an 14 Impulse Marketing related website, it requires that individuals using 15 its websites agree to submit accurate personal subscriber information 16 (“Subscriber Profile”). 17 individuals grant Impulse Marketing the right transfer the Subscriber 18 Profiles to third parties for marketing purposes. 19 subscribes revenue from the licensing and/or use of accurate 20 Subscriber Profiles. In By submitting their Subscriber Profile, Impulse Marketing 21 Plaintiff's Complaint alleges Impulse Marketing violated 22 Washington's Commercial Electronic Mail Act, RCW § 19.190 et seq., 23 and Washington's Consumer Protection Act, RCW § 19.86 et seq., by 24 initiating and/or conspiring with others to initiate unsolicited 25 commercial emails to various addresses at Plaintiff's domain, 26 “Gordonworks.com”. On July 1, 2005, the Court denied Impulse ORDER DENYING MOTIONS TO DISMISS - 2 Case 2:04-cv-05125-FVS Document 269 Filed 03/09/2006 1 Marketing’s motion to dismiss Plaintiff’s Complaint. 2 2005, Impulse Marketing filed five counterclaims against Plaintiff 3 and five separate causes of action against each of the Third-Party 4 Defendants. 5 Amended Third-Party Complaint, which alleges claims against the 6 Third-Party Defendants for (1) fraud and deceit; (2) tortious 7 interference with business relationships; (3) contribution and 8 indemnity; (4) breach of contract; and (5) injunctive relief. 9 Impulse Marketing asserts these same causes of action as 10 On September 6, On November 28, 2005, Impulse Marketing filed a Second counterclaims against Plaintiff. Plaintiff now moves to dismiss the counterclaims and the third- 11 12 party defendants. Because Plaintiff lacks standing to bring a motion 13 to dismiss on behalf of the Third-Party Defendants, his motion will 14 be construed by the Court only as a motion to dismiss Impulse 15 Marketing’s counterclaims against Plaintiff. 16 Defendants have each filed their own motion to dismiss. 17 motions assert the same legal arguments. 18 II. The Third-Party These DISCUSSION 19 A. Standard of Review 20 A complaint should not be dismissed for failure to state a claim 21 upon which relief may be granted under Federal Rule of Civil 22 Procedure 12(b)(6) unless it “appears beyond doubt that the plaintiff 23 can prove no set of facts in support of his claim which would entitle 24 him to relief.” 25 101-02, 2 L.Ed.2d 80 (1957). 26 complaint's allegations are tested with a motion under Rule 12(b)(6), Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, When the legal sufficiency of a ORDER DENYING MOTIONS TO DISMISS - 3 Case 2:04-cv-05125-FVS Document 269 Filed 03/09/2006 1 “[r]eview is limited to the complaint.” 2 Diego, 5 F.3d 1273, 1274 (9th Cir. 1993). 3 set forth in the complaint are taken as true and construed in the 4 light most favorable to the plaintiff. 5 83 F.3d 1136, 1140 (9th Cir. 1996). 6 plaintiff the benefit of every inference that reasonably may be drawn 7 from well-pleaded facts. 8 Cir. 1998). 9 material beyond the pleadings in ruling on a Rule 12(b)(6) motion. 10 Cervantes v. City of San All factual allegations Epstein v. Wash. Energy Co., The Court must give the Tyler v. Cisneros, 136 F.3d 603, 607 (9th As a general rule, the Court “may not consider any Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). 11 B. Tortious Interference Claim 12 Under Washington law, there are five elements to the tort of 13 interference with a business expectancy or contract. 14 must establish: 15 relationship or business expectancy; (2) that the defendant(s) had 16 knowledge of the relationship or expectancy; (3) an intentional 17 interference inducing or causing breach or termination of the 18 relationship or expectancy; (4) that the defendant interfered for an 19 improper purpose or used improper means; and (5) resultant damages. 20 Leingang v. Pierce County Med. Bureau, 131 Wash.2d 133, 930 P.2d 288 21 (1997). 22 A plaintiff (1) the existence of a valid contractual As to the first element, a valid business expectancy “includes 23 any prospective contractual or business relationship that would be of 24 pecuniary value.” 25 Wash. App. 151, 158, 52 P.3d 30 (2002). 26 alleges it transfers its clients’ Subscriber Profiles to third Newton Ins. Agency v. Caledonian Ins. Group, 114 ORDER DENYING MOTIONS TO DISMISS - 4 Here, Impulse Marketing Case 2:04-cv-05125-FVS Document 269 Filed 03/09/2006 1 parties for marketing purposes and that in doing so, Impulse 2 Marketing created business relationships and contract relationships 3 with these on-line business partners. 4 (hereinafter “Complaint”), ¶¶ 1-4, 43-44. 5 a contractual relationship requires a showing of a particular 6 relationship or expectations and will not compensate a claimant for 7 speculative or wishful thinking. 8 pointed to any specific employers or relationships that were 9 affected, its allegations are sufficient under general pleading 10 11 Second Amend. Complaint Tortious interference with Although Impulse Marketing has not standards to survive a motion to dismiss. As to the second element, knowledge of the existence of a 12 business relationship is an essential element in establishing 13 liability for interference therein, but “it is sufficient if the 14 evidence reveals that the alleged interferor had knowledge of facts 15 giving rise to the existence of the relationship. 16 necessary that the interferor understand the legal significance of 17 such facts.” 18 153 (1964). 19 Defendants had knowledge of the contracts and business relationships 20 between Impulse Marketing and its on-line marketing partners. 21 Complaint, ¶ 45. 22 the Third-Party Defendants submitted their Subscriber Profile to 23 Impulse Marketing and/or its third-party marketing partners, 24 certified that their Subscriber Profiles were accurate and truthful 25 pursuant to the applicable terms and conditions, and entered into a 26 Privacy Policy that permitted Impulse and/or its marketing partners It is not Calbom v. Knudtzon, 65 Wash.2d 157, 165, 396 P.2d 148, Here, Impulse Marketing alleges the Third-Party More specifically, Impulse Marketing maintains that ORDER DENYING MOTIONS TO DISMISS - 5 Case 2:04-cv-05125-FVS Document 269 Filed 03/09/2006 1 to share the applicable participant’s Subscriber Profile with 2 contractually-bound third party marketers. 3 51. 4 of a tortious interference cause of action. 5 Complaint, ¶¶ 8-14, 43- These allegations are sufficient to survive the second element As to the third element, interference with a business expectancy 6 is intentional if “the actor desires to bring about or if he knows 7 that the interference is certain or substantially certain to occur as 8 a result of his action.” 9 Impulse Marketing seems to be arguing that since the Third-Party Newton, 114 Wash. App. at 158, 52 P.3d 30. 10 Defendants’ act of providing inaccurate and untruthful Subscriber 11 Profiles was intentional, their interference is deemed intentional in 12 light of the terms of the Privacy Policy that permitted Impulse 13 and/or its marketing partners to share the applicable participant’s 14 Subscriber Profiles. 15 Defendants knew, or were substantially certain, their inaccurate 16 Subscriber Profiles would interfere with Impulse Marketing’s business 17 relationships with its on-line marketing partners, intentional 18 interference would be sufficiently pled. 19 If Impulse Marketing can show the Third-Party Although Impulse Marketing's responsive memorandum does not 20 address the fourth element, its Complaint adequately alleges facts 21 supporting this element. 22 Party Defendants interfered for an improper purpose because they 23 intended to purposefully entice Impulse Marketing to send emails to 24 the “gordonworks.com” domain that the Third-Party Defendants believed 25 violated RCW 19.190 et seq., in an attempt to exacerbate legal 26 claims. Impulse Marketing argues that the Third- Complaint, ¶¶ 22-30. ORDER DENYING MOTIONS TO DISMISS - 6 Case 2:04-cv-05125-FVS 1 Document 269 Filed 03/09/2006 With respect to the fifth element, Impulse Marketing alleges it 2 has sustained money damages. 3 Marketing has alleged facts sufficient to satisfy this final element. 4 Complaint, ¶ 50. Thus, Impulse The Court concludes Impulse Marketing has adequately alleged a 5 cause of action for tortious interference, and the motions to dismiss 6 are denied with respect to this claim. 7 B. 8 To establish fraud, a plaintiff must prove, by clear and 9 Fraud & Deceit convincing evidence, (1) representation of an existing fact; (2) 10 materiality; (3) falsity; (4) speaker’s knowledge of its falsity; (5) 11 speaker’s intention that it shall be acted upon by the plaintiff; (6) 12 plaintiff’s ignorance of falsity; (7) reliance; (8) right to rely; 13 and (9) damages. 14 214, 236, 961 P.2d 358, 369 (1998). 15 Tran v. State Farm Fire and Cas. Co., 136 Wash.2d Impulse Marketing has adequately pled a cause of action for 16 fraud. With respect the first four elements of fraud, the Complaint 17 alleges the Third-Party Defendants knowingly provided Impulse 18 Marketing with false Subscriber Profiles at various websites. 19 Complaint, ¶¶ 22-24, 28. 20 Marketing alleges the Third Party Defendants purposely intended to 21 solicit email messages to the "gordonworks.com" domain that 22 Plaintiff's believed were in violation of RCW 19.190, for the sole 23 purpose of causing Impulse Marketing pecuniary harm and harm to its 24 reputation, while attempting to create legal claims. 25 25-30. 26 repeatedly solicited, unsubscribed, then repeatedly re-solicited With respect to the fifth element, Impulse Complaint, ¶ Impulse Marketing also alleges the Third-Party Defendants ORDER DENYING MOTIONS TO DISMISS - 7 Case 2:04-cv-05125-FVS Document 269 Filed 03/09/2006 1 email from Impulse Marketing and/or its marketing partners in an 2 effort to fabricate and exacerbate claims against Impulse Marketing 3 based on the Third-Party Defendants' belief that the emails received 4 from Impulse Marketing violated RCW 19.190 et seq. 5 37. 6 was unaware of the inaccurate Subscriber Profiles provided by the 7 Third-Party Defendants. 8 three elements of fraud, Impulse Marketing alleges it justifiably 9 relied upon Third-Party Defendants' untruthful, inaccurate and Complaint, ¶¶ 31- With respect to the sixth element, Impulse Marketing alleges it Complaint, ¶ 39. With respect to the final 10 fraudulent representations in their Subscriber Profiles by 11 negotiating and fulfilling marketing agreements with Impulse 12 Marketing's third-party business partners, thereby causing Impulse 13 Marketing to incur excessive business operational costs and 14 associated expenditures with running its business. 15 Complaint, ¶ 38. Alternatively, Third Party Defendants argue Impulse Marketing 16 failed to plead the elements of fraud with the required particularity 17 required by Federal Rule of Civil Procedure 9(b). 18 Marketing alleges specific dates throughout the month of September 19 2003, on which the Third-Party Defendants allegedly directed, 20 permitted, or conspired with Plaintiff to provide inaccurate or 21 untruthful Subscriber profiles. 22 concludes this is sufficient to satisfy the heightened pleading 23 standards for fraud. 24 with respect to Impulse Marketing's claim for fraud and deceit. However, Impulse See Complaint, ¶¶ 31-37. The Court Accordingly, the motions to dismiss are denied 25 C. Contribution and Indemnification 26 Impulse Marketing asserts a claim against the Third-Party ORDER DENYING MOTIONS TO DISMISS - 8 Case 2:04-cv-05125-FVS Document 269 Filed 03/09/2006 1 Defendants for indemnity and contribution if Impulse Marketing is 2 found liable in any way to Plaintiff. 3 move to dismiss this cause of action because the Complaint does not 4 allege or acknowledge that the emails in question violated Washington 5 statute. 6 claims for contribution and indemnification. 7 “distributes the loss among the tortfeasors by requiring each to pay 8 his proportionate share” and indemnity “shifts the entire loss from 9 one tortfeasor who has been compelled to pay it to the shoulders of The Third-Party Defendants However, this argument misinterprets Impulse Marketing’s Contribution 10 another who should bear it instead.” Zamora v. Mobil Corp., 104 11 Wash.2d 211, 218, 704 P.2d 591, 596 (1985) (citation omitted). 12 Impulse Marketing simply requests that if it is found liable for the 13 emails sent to Plaintiff, it be permitted to seek indemnity and 14 contribution from the Third-Party Defendants because they (1) 15 specifically intended to drive email messages to the gordonworks.com 16 domain; and (2) repeatedly solicited, unsubscribed, and then 17 repeatedly re-solicited email from Impulse Marketing and its 18 marketing partners with the sole intention of fabricating and 19 exacerbating claims against Impulse Marketing based on the Third 20 Party Defendants’ belief that the emails violated RCW 19.190 et seq. 21 Complaint, ¶¶ 17-20. 22 sufficient to satisfy the general pleading standards. 23 motions to dismiss Impulse Marketing's claims for indemnity and 24 contribution are denied. The Court determines these allegations are Therefore, the 25 D. Breach of Contract 26 Impulse Marketing alleges the Third-Party Defendants violated ORDER DENYING MOTIONS TO DISMISS - 9 Case 2:04-cv-05125-FVS Document 269 Filed 03/09/2006 1 the terms and conditions of Impulse Marketing’s website and its 2 Privacy Policy by failing to accurately and truthfully complete their 3 Subscriber Profiles and by failing to accept the commercial email 4 received in a proper manner without negating the benefit conferred 5 upon them by Impulse Marketing. 6 Impulse Marketing alleges it sustained monetary damages as a 7 consequence of the alleged breach. 8 9 Complaint, ¶¶ 53-64. Further, Complaint, ¶ 65. At the motion to dismiss stage the Court does not engage in debating the terms of the applicable contract. Rather, the Court is 10 only concerned with whether the Complaint alleges facts that, if 11 proven, are sufficient to state a claim for relief. 12 concludes that Impulse Marketing has alleged facts sufficient to 13 state a cause of action for breach of contract. 14 motions to dismiss are denied with respect to Impulse Marketing's 15 breach of contract claim. The Court Therefore, the 16 E. Injunctive Relief 17 “The granting or withholding of an injunction is addressed to 18 the sound discretion of the trial court to be exercised according to 19 the circumstances of each case.” 20 v. State, 99 Wash.2d 878, 887, 665 P.2d 1337, 1343 (1983). 21 to obtain injunctive relief, the plaintiff must establish (1) that he 22 or she has a clear legal or equitable right, (2) that he or she has a 23 well grounded fear of immediate invasion of that right by the one 24 against whom the injunction is sought, and (3) that the acts 25 complained of are either resulting in or will result in actual and 26 substantial injury. Wash. Federation of State Employees Id. at 888, 665 P.2d at 1343. ORDER DENYING MOTIONS TO DISMISS - 10 In order Case 2:04-cv-05125-FVS 1 Document 269 Filed 03/09/2006 Impulse Marketing requests the Court enjoin the Third-Party 2 Defendants from soliciting, unsubscribing, and re-soliciting email 3 from Impulse Marketing and/or its marketing partners. 4 Party Defendants argue Impulse Marketing is not entitled to an 5 injunction because the act of requesting commercial emails is 6 perfectly legal conduct, even if the person requesting the emails 7 intends to later sue the sender. 8 act of requesting emails is insufficient to expose Impulse Marketing 9 to liability. The Third- Further, they argue that the mere Rather, it is only when Impulse Marketing sends 10 commercial email, an act over which the Third-Party Defendants 11 contend they have no control, that liability attaches. 12 The Court determines that Impulse Marketing’s Complaint 13 satisfies the second and third elements necessary to establish 14 injunctive relief. 15 “legal” right to prevent the Third-Party Defendants from requesting 16 commercial email, assuming the truth of the facts alleged in the 17 Complaint, Impulse Marketing may have an equitable right. 18 Court denies the motions to dismiss Impulse Marketing’s claim for 19 injunctive relief. Although Impulse Marketing might not have a Thus, the Accordingly, 20 IT IS HEREBY ORDERED: 21 1. Plaintiff's Motion to Dismiss Third-Party Defendants and Counterclaims Under FRCP 12(b)(6) or in the Alternative Motion for Summary Judgment under FRCP 56 or in the Alternative to Dismiss under FRCP 9(b) (Ct. Rec. 40) is DENIED. 2. Motion to Dismiss by Jonathan Gordon (Ct. Rec. 155) is DENIED. 3. Motion to Dismiss by Bonnie Gordon (Ct. Rec. 158) is DENIED. 22 23 24 25 26 ORDER DENYING MOTIONS TO DISMISS - 11 Case 2:04-cv-05125-FVS Document 269 Filed 03/09/2006 4. Motion to Dismiss by Robert Pritchett (Ct. Rec. 161) is DENIED. 5. Motion to Dismiss by James S. Gordon, III (Ct. Rec. 164) is DENIED. 4 6. Motion to Dismiss by Jamila Gordon (Ct. Rec. 167) is DENIED. 5 7. Motion to Dismiss by Emily Abbey (Ct. Rec. 177) is DENIED. 6 IT IS SO ORDERED. 1 2 3 The District Court Executive is hereby 7 directed to enter this Order, furnish copies to counsel and to the 8 Third Party Defendants who are proceeding pro se. 9 10 11 DATED this 9th day of March, 2006. s/ Fred Van Sickle Fred Van Sickle United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER DENYING MOTIONS TO DISMISS - 12
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