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.

Terri

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