Thursday, October 23, 2008

#32 . . . Making A Federal Case . . .

Greetings Everyone!

I haven't blogged this much in years! However, with new developments coming quite often, I want to keep up with my pledge to tell our side of the story and to provide access to the public records.

As I had said before, one of the 'defendants' [no names, wouldn't want to be puerile] filed a motion to dismiss for lack of personal jurisdiction.

That means this person is challenging our reasons for bringing her into court in Kansas. The laws say that there has to be a connection between the defendant, the lawsuit and the forum state. No problem, this is her right.

Here is that motion. I'm not posting the attachments, it is an affidavit saying the defendant had nothing to do with Kansas.

I filed my response.

I am sparing you the 90 pages of attachments. If you can't follow along and want to read a specific exhibit, please email me with the exhibit number. The defendant claimed my response was 'anemic.' Oh, shot through the heart . . . You, the reader can make your own judgement.

As the one who filed the motion, the defendant gets the last word. So, here it is.

Now, a reply is supposed to limit itself to rebutting the arguments presented in the response. However, the defendant took this opportunity to launch into a 'discussion' of the blog. Well . . . I'll let you read it for yourself.

My only comment has to do with living in a glass house . . .

An interesting aside. The defendant's motion [filed word-for-word by the other two defendants] has an interesting case cite. The case is called 'Sunlight Sauna v. Sundance et. al.'. Two sauna sellers went at it in cyberspace. One created a website dedicated to saying what scuzzballs the others were and generally saying their products were shoddy and not worth a hoot and calling all sorts of names.

Sound familiar? Reading it for the first time, I felt like I had been transferred into a parallel universe. That's when I read it about 2 years ago. One of my good friends and colleague was the lead attorney for one of the parties so I kept track of the case. The defendants plucked out one sentence about jurisdiction, but didn't really read and understand the case. In a nutshell, the parties that were whooping it up, having fun on the internet, calling the other side poopy-heads, and using the other parties' trademarks, and all that fun stuff ended up with a sizable jury verdict against them. The two sides eventually settled, but it still cost them in a big way . . . I couldn't find the sentence based on the case cite the defendant put in her motion. So, I went back and read the briefs and the judge's opinion. A little stroll down memory lane. Always fun!

On to the case at hand. I ran through my archives from the JWCorral2 and other email that has been forwarded to me by interested parties. Over the years, I have been called a 'scumbag', 'evil', 'wacky', 'treacherous,' and my personal favorite 'Himmler.' And that was all just in a few minutes of reviewing old archive documents. When the defendant thought it was acceptable and desirable to keep a website with links to the public records, that was evidentally okey-dokey. Her introduction was:

"The statements here are only my opinion, of course. The documentation speaks for itself. Please, if you don't like what's being said, just stop reading it and go somewhere else. I won't blame you one bit."

Guess what . . . neither will I.

I am commenting on how the cases are being presented and telling our side of the story. I will even post the documents filed by both sides, not just the ones that say what I want to hear.

It is evidentally okay for the opposition to say whatever they wish, but I cannot reply. Last time I checked, my bar card does not negate my constitutional right to freedom of speech. I haven't said a thing that is not contained in or inferred by the public records.

So, as long as there is a JWCorral2, FriendsOfJohnny, or any other group under any other name dedicated to 'chatting' about the on-going litigation, this blog will exist.

Happy reading everyone! These are public record documents and can be printed, emailed, used as party favors or recycled as you wish. Terri

Wednesday, October 15, 2008

#31 . . . Quick Federal Court Update

Greetings All!

I've been asked why I keep this blog. Simple, to tell our side of the story. We know the defendants have a finely-tuned propaganda machine, although their 'group' has become a lot more close-mouthed and paranoid lately.

What you get here is my side of what is filed, why it is filed, and why we are taking the positions that we have taken. Everything is in the public record, so it is accessible to anyone who registers. However, there is a fee to view the actual documents. So, if anyone ever wants to read the raw legal documents, just drop me a note and I will email them to you.

On October 6, Ms. Koehler filed a motion to dismiss for lack of personal jurisdiction. No great surprise, I had anticipated it. It is a typical rookie move and I had the subject well researched before I had even filed our case. And even if, for some reason, the motion is granted it is always granted 'without prejudice' and I am free to refile the case in another jurisdiction. So, this motion, even if granted, does not end the case.

So far, my opponents, with the exception of the malicious and frivolous bar complaints, have reacted exactly as I anticipated. However, my opponent should have taken notice of the fact that I didn't file this very same motion when American Plastic sued us in Missouri. It wasn't because I didn't think of it. It was because I knew I would probably lose and didn't bother with it. Again, unless the facts are egregious [ie - using a website to establish jurisdiction for a car wreck], the motion is typically a loser.

Lack of personal jurisdiction is very difficult to prove and usually only prevails when the plaintiff either, didn't know what they were doing, or were really stretching their facts. Well, I firmly believe that I do know what I am doing and the facts in this case are dead-on with a famous and landmark Kansas case regarding trademark infringement on a website.

My opponent failed to properly research the case law and, instead, pulled out a couple of cites that have nothing to do with jurisdiction based on the internet. Even one of the cases she cited said, "Plaintiff's burden is light . . . " and I believe I met the burden.

My second defendant, Mr. Bone, is now asserting the same motion, using pretty much word-for-word, the same brief as Ms. Koehler. Coincidence? I think not.

So, the law wasn't the hard part. Professional preparation of legal documents is quite the task. My brief is 19 pages long with 90 pages of exhibits, affidavits and other information supporting our position. The formatting, printing, collating, indexing, scanning, and other technical work is arduous. I also mail a copy, not only to the movant, in this instance Ms. Koehler, but to all of the other defendants. I treat them with every courtesy. It all can be a royal pain, but professionalism in brief writing is critical. Defending my own family company is a privilege and no burden is too great.

In law school, I majored (as much as you can major in law school) in brief writing and motions practice. I coached two moot court teams on brief writing and told them that if they ignored my advice, they would lose. They did, and they lost. So, I take a lot of pride in my legal documents. Yes, there will be the occasional typo or formatting error created in the upload, but the legal arguments will be the very best I can present.

So, I am expecting two more motions from the defendants. Noah and I have a bet when they will come in and what they will say. So far, I am two for two. We'll see what the next batch brings.

So, whatever you hear, remember, there are two sides to the tale. Feel free to ask me anytime and if I can answer it, I will.


Monday, October 13, 2008

#30 . . . The TTAB . . . The Beat Goes On . . .

I hope everyone is enjoying a day off of school and work this Columbus Day. The county courthouse may be closed, but the electronic courthouses of the federal system and the administrative courts of the government never sleep.

Over the weekend, Ms. Koehler filed a motion to disqualify me to represent my own family company before the TTAB. To support this contention, she parroted a case cite from one of the Kansas cases. She wants the United States administrative court to follow a local Kansas practice rule . . .

Enough said, I have a lot of work to do today. For those following the paperwork, the motion and my response can be found here. Documents #20 and #21 can speak for themselves.

You can email me with any questions you have or leave a comment on the blog. As always, anything overly obnoxious or vulgar will be moderated. Otherwise, all comments are welcome. Thanks again everyone! Terri

Wednesday, October 08, 2008

#29 . . . The TTAB Continues

A quick post this morning. Ms. Koehler has now filed an impermissible surreply with the TTAB, claiming it is an 'answer to a counterclaim.'

Read the rules Ms. Koehler, surreplies are not permitted in TTAB proceedings.

I also said I was qualified to practice patent law by virtue of my education. I did not say I was registered to practice patent law. Until I submit my registration and sit for the patent bar, the OED has no authority over me. Even then, this is a trademark case, not a patent case.

I am in receipt of the motion to dismiss and am working on my reply. I researched the law before I filed the complaint. Your reliance on Sunlight Sauna is misplaced. I'll be submitting my brief before the due date.

This litigation is far from frivolous. If, for some reason, you prevail on the jurisdiction claim, I will refile it in Ohio.

To read the public records in the TTAB case, the link is in the post below.

Have a great day one and all and thank you for your support. Terri

Saturday, October 04, 2008

#28 - The TTAB Proceeding

Hi Gang! Just thought I would file a quick update on what is going on at the trademark authority and Jill's petition to cancel three of our trademarks.

First, you can read all of the pleadings in the public record here. I recommend you read for yourself. The first one and the last four or five are the most important.

We finally got the service issue ironed out. No more 'gotcha' filings from Ms. Koehler. However, my opponent is now onto a new litigation tactic.

She is filing ethics complaints against me with every organization she can think of. To date, the tally is 2 bar association complaints and one complaint with a federal agency that doesn't have any jurisdiction or authority over me or my legal license.

She wants to take the issues of the case out of court and litigate them in front of the ethics committee. Every complaint has to be investigated, so I met with the investigator yesterday.

The first complaint involves Ms. Koehler making complaints on behalf of Kirby Jonas, Robin Bone, Mike Kosowski, and apparently Jay Horowitz. The investigator took my side of the story and Jill will get to give her side. No problem, that's how it works. Approximately 6 months from now, the board will decide if there is sufficient probable cause to file charges on me. The complaint has no effect whatsoever on the civil cases. There is ample case law showing that the legal disciplinary authority is not a party in civil proceedings [except for those relating to disciplinary proceedings], cannot influence or affect cases in any way, and their decisions have no affect on the outcome of civil cases.

The second complaint is evidently a bale of paperwork showing what a fraud I am. Instead of waiting for discovery and the adjudicatory process, Ms. Koehler has submitted all of her 'evidence' to the bar association. Ms. Koehler evidently thinks the bar has never seen this tactic before. They will do their investigation, that is what they do, but not make any comment, recommendation, or anything in any way, shape or form that will affect the courts in any way. Ms. Koehler and her complaints will not win these lawsuits for her.

For the moment, Ms. Koehler has immunity to do as she pleases. The way it is set up, you can say anything you want about an attorney. If you can think it, you can complain about it. While a LOT is required to convict and sanction an attorney, very little is required to file a complaint. However, that immunity is not without limits and I will deal with it when the time comes. Again, there is very little new under the sun when it comes to the legal system. The courts have looked at this type of situation before.

So, ethics complaints as a litigation tactic is obviously just a way to attempt to distract and discredit me. I do admit, I had to give up some of my free time to research the issue before writing my documents. But, I love research, so its no big deal. I never file anything that is not thoroughly researched and supported by law to the best of my ability.

It doesn't change the fact that Jill, Mike, Robin, and now Jay Horowitz, have deadlines coming up in federal court and Jill has a deadline coming up in the TTAB.

Talk to you later and thanks to everyone for their support!