SUNDAY, JUNE 5, 2005
Mary
Cummins wins Kathy Knight-McConnell lawsuit
On July 7, 2003, Kathy Knight-McConnell sued Mary Cummins for
securities law violations, trademark infringement, defamation, and other claims
in federal court in New York. At the time of the litigation, Knight-McConnell
ran a forum for investor discussions and published a newsletter on various
stocks. According to a court decision in the case, Cummins, a stock trader from
California, posted statements on website discussion groups and on her own
website describing Knight-McConnell as a securities fraud "criminal"
and "paid to lie to investors," among other things.
In addition, Knight-McConnell alleged that Cummins intentionally maligned
certain stocks that she promoted in order to drive their price down in
violation of the securities laws. Knight-McConnell also claimed that Cummins
violated trademark law by linking to Knight-McConnell's website without
permission, using Knight-McConnell's name in the post-domain path of URLs for
seven of her web-pages, and posting links on Internet chat forums and
discussion boards directing users to visit these pages.
In a July 2004 opinion, Judge Naomi Reice Buchwald dismissed the
securities and trademark claims. The court indicated that Knight-McConnell had
no standing to bring a securities law claim because she did not allege that she
purchased or sold the stocks in question in reliance on any statement by
Cummins. The court dismissed the trademark claim because linking to
Knight-McConnell's site without permission was not likely to cause confusion as
a matter of law:
"Even if we assume that plaintiff's name is a valid and protectible mark,
plaintiff has not alleged that the defendant engaged in any conduct that is
likely to cause confusion as to the origin of the defendant's website. The mere
appearance on a website of a hyperlink to another site will not lead a web-user
to conclude that the owner of the site he is visiting is associated with the
owner of the linked site. This is particularly true in this case because
defendant's website advertises real estate and web design services, not
investment services, and defendant is continuously dissassociating
herself from plaintiff by criticizing her and accusing her of misconduct."
Judge Buchwald also determined that using Knight-McConnell's name in URL paths
was not likely to cause confusion as a matter of law because a URL "merely
shows how the website's data is organized within the host computer's
files" and does not suggest affiliation, source, or sponsorship.
Looking at Knight-McConnell's many state law claims, Judge Buchwald determined
that the complaint likely stated a cause of action for defamation, but that a
defamation claim was not sufficient to confer personal jurisdiction on the
court. Buchwald indicated that Knight-McConnell's tortious interference with contract
claim might be sufficient to establish jurisdiction
under New York's long-arm statute, but that Knight-McConnell had failed to
adequately plead this cause of action. The court dismissed the complaint
without prejudice and granted Knight-McConnell permission to amend her
complaint.
Knight-McConnell amended her complaint, but, upon a renewed motion by Cummins,
Judge Buchwald dismissed the case for lack of personal jurisdiction in June
2005.
Full docket report
http://www.freecourtdockets.com/Dockets/Knight-McConnell-v-Cummins-1-03-cv-05035-New-York-Southern-Federal-District-Court-Docket-Page-1-87407-87407.htm
Independent review of the case by Citizen Media Law Project. I have no idea why
these people had an interest in this frivolous case. Of course this was the
very beginning of internet law.
http://www.citmedialaw.org/threats/knight-mcconnell-v-cummins
Mary Cummins is a real estate appraiser in Los Angeles, California. She also
advocates for the protection of investors from stock scams especially those
perpetrated by company paid stock promoters. She aided the SEC in their
prosecution of stock promoter John Westergaard
in 2000 and 2001. She also warned investors about stock
scams involving the following companies, TMOT Titan Motorcycle Company, EZR Easyriders, UMCC Ultra Motorcycle Company, NPCT Nanopierce, JNOT Jag Notes and others.
Kathy Knight-McConnell was a company paid stock promoter at the time of the
lawsuit. She worked for Nanopierce symbol NPCT. NPCT was never
profitable.
Here is her old website. I saved copies of all of it. Click "about"
to see her photo of herself. Click "boycott raging bull" to see how
she feels about me. Click "NPCT" to see her paid tout job.
http://web.archive.org/web/20030206180859/http://investortoinvestor.com/
Pdf copy of the docket from Pacer
http://www.marycummins.com/kathy_knight-mcconnell_vs_mary_cummins_docket.pdf
I wish I could find her original complaint. I had to read it three times just
to try to figure out what the hell she was suing me for. It was all over the
place. Finally figured it out and replied.
May 25, 2004. MEMORANDUM IN SUPPORT OF
DEFENDANT’S RULE 12(b) MOTIONS TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION, LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE, and FAILURE TO STATE A CLAIM
http://www.marycummins.com/knight_mcconnell_motion_to_dismiss.pdf
Knight-McConnell then filed a motion to strike my motion to dismiss claiming I
had a ghost writer. March 25, 2005 Judge Naomi Reice
Buchwald orders me to "send an affidavit attesting to the fact and
explaining how you obtained the legal scholarship that is reflected in the
motion papers." It's called being stressed out of your mind that you are
being sued so you stay up many long nights researching how to write and file
papers. This was also my second pro se lawsuit as a defendant. I was previously
sued for something similar in a Philadelphia court, see Ashton Technology vs
Mary Cummins. I learned a lot from JohnDoes.org . They
pointed me in the right direction to similar cases. I also learned a lot from
Silicon Investor "Investment chat board lawsuits" thread. A lawyer
did not write any of my documents or help me in any way.
http://www.marycummins.com/knight_Mcconnel_judge_order.pdf
April 26, 2005. The judge is satisfied with my affidavit. Plaintiff's motion to
strike defendant's motion to dismiss is denied.
http://www.marycummins.com/knight_mcconnell_motion_denied.pdf
Knight-McConnell filed an amended complaint and I replied
http://www.marycummins.com/mary_cummins_reply_to_knight-mcconnel_amended_complaint.pdf
PIKE & FISCHER INTERNET LAW & REGULATION review of case. Note, I never
had to pay any fees because the court never had jurisdiction over me. I should
have never been served in the first place. The final current docket reflects
this. I'm amazed they wrote such a lengthy article about this frivolous case.
This was the beginning of internet law so maybe that's it. Or maybe it was
because it was a pro se vs a pro se?
http://techlawadvisor.com/docs/knight-mcconnell.pdf
I found my old due diligence page for Kathy. None of the links work. Note, the
photo of Kathy in question was posted on the main page of her own website. I
added the "toxic funding is awesome!" part, that's it. This is a
photo she herself had on the main page of her website.
http://www.marycummins.com/kathy_knight-mcconnel_stock_promoter.html
LABELS: MARY CUMMINS, ANIMAL
ADVOCATES CASE, CUMMINS-COBB, DISMISSED, KATHY KNIGHT-MCCONNELL, LEGAL, MARY, MARY CUMMINS, NANOPIERCE, PRO SE, STOCK PROMOTER, WIN
TUESDAY, MAY 4, 2004
Kathy Knight-McConnell v Mary Cummins - Cummins wins the
lawsuit
Mary Cummins copy of
memorandum in support of Defendant's Rule 12(b) Motions to dismiss for lack of
subject matter jurisdiction, lack of personal jurisdiction, improper venue and
failure to state a claim. Judge Naomi Buchwald.
Mary Cummins,
Defendant pro se
Phone
323-651-1336
Fax 323-651-1335
359 N. Sweetzer Avenue
Los Angeles, CA 90048
IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
KATHY KNIGHT-MCCONELL, Plaintiff, v. MARY CUMMINS, DefendantCivil No. 03 CV 5035 MEMORANDUM IN
SUPPORT OF DEFENDANT’S RULE 12(b) MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER
JURISDICTION, LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, and FAILURE TO
STATE A CLAIM Judge: Buchwald
MEMORANDUM
Background
Plaintiff Kathy
Knight-McConnell’s (“Plaintiff”) lawsuit expresses Plaintiff’s discontent with
Defendant Mary Cummins’ (“Defendant” or “Cummins”) opinions which were
published by Cummins on the internet, related to Plaintiff’s former activities
as a paid stock promoter and as a paid stock tout. What is at issue here are
Cummins First Amendment free speech rights, not matters prohibited by any
federal statute.
Plaintiff seeks to
misuse the federal statutes cited by Plaintiff outside of their intended legal
meaning and jurisdictional authority as a basis for jurisdiction in federal
court and for venue in New York. Further, she alleges actions and conduct for
which no law exists upon which relief can be granted. A careful reading of the
complaint in question implies claims that the statements allegedly published by
Defendant are derogatory to Plaintiff, but any such claims would have to be
brought under state, not federal, law. What this really boils down to is
that Plaintiff is attempting to abridge the free speech rights of Defendant.
Defendant Cummins was
never properly served in this case. The court previously struck an earlier
proof of service filed by the Plaintiff, and
instructed Plaintiff to effect service of process by mail according to court
rules. Instead of following the court’s instructions to complete service by
mail, Plaintiff, by way of a third party, left the new summons and complaint
papers in a hedge row in a rain storm. At this time, Cummins prefers to move for dismissal on other
grounds without further delay in this matter. Therefore, Cummins considers this
appearance to be voluntary, since a second motion to strike Plaintiff’s proof
of service on the grounds stated above will not resolve disposal of this case
in finality.
Argument A. Subject
Matter Jurisdiction (Rule 12(b)(1))
Plaintiff alleges
several claims pursuant to the Securities and Exchange Act of 1934 (15 USC §§
78i, 78j, 78t, and 78aa; and 15 USC § 80b-2). Reliance by Plaintiff on these
statutes is preposterous. No allegation or statement of fact in Plaintiff’s
complaint has any connection, even remotely, with the sale, offering for sale,
issuance, purchase, or any statement made in conjunction with, a security.
The Exchange Act and
the rules promulgated under it provide for a shareholder derivative action, and
then only when the plaintiff has standing as the buyer or seller of the
security involved. Blue Chip Stamps v. Manor Drug Stores, 421 U.S.
723 (1975). In such case, a plaintiff may have standing, upon court
certification, to bring a private action. However in
the instant case, the Plaintiff has not alleged that either the Plaintiff or
the Defendant is the issuer of any security, or that any party
has purchased or sold any security. Without such a basic premise as
standing, the court need not look further to determine whether any other of the
numerous and complex elements for bringing a private securities action even
exists. This subject is covered in full below under the argument for dismissal
under Rule 12(b)(6).
Even the Plaintiff
were legitimately bringing a suit pursuant to any claim under the Exchange Act,
Sec. 78aa specifically permits that a civil action may be brought in district
court, but venue lay where the defendant resides, transacts business, or may be
found. Because defendant has not purposefully availed herself of a New York
venue in any constitutionally relevant sense (see Declaration of Mary Cummins),
only the appropriate California district can hold venue. The matter of personal
jurisdiction will be discussed more fully below.
Plaintiff alleges
claims under 15 USC § 1125, claiming some sort of trademark infringement or
dilution pertaining to a registered domain name. No information is alleged from
which a claim under this statute could possibly be inferred, because this
section deals with trademark infringement from improper registration of
domains. Even if such a claim has been alleged, the statute specifically
directs venue and jurisdiction to the residence of the registrar. No registrar
is even alleged in the complaint.
Even if Plaintiff
alleges that Plaintiff published public documents on the internet, and that
Defendant allegedly linked to those public internet pages from Defendant’s web
site. The absurdity of Plaintiff’s charges lay in the fact that the internet is
a World Wide Web, that is, millions of published documents which are linked by
unique registered locators, or URL’s. Not only is Plaintiff’s belief that
creating URL’s which link to public documents on the internet are illegal, but
it has nothing to do with trademark infringement within the context of a domain
name, which is legal authority she is claiming. Specifically, she claims
these links from mary.cc to investortoinvestor.com were illegal because they
allegedly were done without permission. This is ridiculous, because any alleged
link or URL from any web page would simply direct the reader to the target
website.
Plaintiff also alleges
that the Uniform Resource Locator “URL” somehow violates trademark properties.
This is equally ridiculous. a URL is simply a directory or sub-directory filing
system on a computer. It identifies the directory tree under which the
requested document may be found using the Hypertext Transfer Protocol (“HTTP”).
Furthermore, the content of those pages are public documents, which is the
nature of the internet, unless the publisher has made specific efforts to
restrict access to those documents, which is not the case here. The URL’s in
question are clearly located under the mary.cc domain, a domain which Plaintiff
alleges is owned by, and registered to, Defendant Cummins. There is no dispute
relating to improper domain name registration under the federal trademark
statute. Therefore, there is no possible application of this statute even when applied
in the greatest stretch of the imagination.
Each and every other alleged “claim” asserted by the Plaintiff, which include
false light, defamation, and business interference, are state claims under
state common law. Because Plaintiff has alleged no ultimate facts alleging
valid claim under Rule 10B-5 of the Exchange Act, this court cannot take
jurisdiction over the state law claims as alleged by the Plaintiff.
B. Personal
Jurisdiction (Rule 12(b)(2))
Plaintiff further
cites New York’s “long arm statute” as a basis for jurisdiction. Under this
state statute, the federal district court is required to exercise
jurisdiction under the same standards and guidelines as would be
considered by the state courts. Bank Brussels Lambert v. Gonzalez,
171 F.3d 779 (2d Cir. 03/26/1999). Once the standards are applied under New
York’s C.P.L.R., then the district court must determine whether an exercise of
jurisdiction under these laws is consistent with federal due process
requirements. Met Life, 84 F.3d at 567.
Plaintiff alleges no
ultimate facts that Defendant has had any minimal contact with the forum state.
Indeed, Plaintiff alleges that Cummins resides in, and conducts business in,
California (see Complaint at par. 10, pg. 3).
Defendant is a citizen
of California, and lives and is employed in California. See Affidavit of Mary
Cummins at 2, 3, and 4. Defendant has no contact with the forum state, and
there is no basis upon which Cummins could “reasonably be expected to be
hailed” into the forum state of New York. Accordingly, due process cannot be
served in New York. Kernan v. Kurz-Hastings Inc., 175 F.3d 236 (2d Cir. 04/15/1999).
C. Improper Venue
(Rule 12(b)(3))
Plaintiff further
alleges jurisdiction pursuant to 28 USC § 1332. Because there is no federal cause
of action alleged or implied by Plaintiff under any federal statute,
Defendant’s due process rights dictate that the only proper venue is
California, and that any allegations made by the Plaintiff should be applied
under California State law. The standard for venue even in Internet cases is
well established, that the Plaintiff must allege ultimate facts proving that
the alleged conduct is directed expressly at the forum state more than at any
other state or venue. See GTRE New Media Services Incorporated v.
BellSouth Corp., 199 F.3d 1343 (D.C.Cir.
01/11/2000), where the plaintiff relied upon District of Columbia’s long-arm
statute in allegations similar to this case. Even
if Plaintiff were properly alleging a trademark infringement, which she is not,
allegations of ultimate facts must be pleaded in order to claim venue in New
York. Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293 (2d Cir.
11/07/2002).
Plaintiff also alleges
that there is an agreement on the investortoinvestor.com web site which binds
venue in New York. A copy of this purported “agreement” is attached as Exhibit
A. There is no basis for this claim because (a), Investor to Investor, Inc. is
NOT a party to this lawsuit; (b), there is no “venue clause” in this purported
“agreement” as alleged by the Plaintiff. (3), there are no factual allegations
linking Defendant Cummins to this, or any other purported “agreement”; and (4)
no legal basis has been established wherein an internet computer user is bound
to any published rules binding venue on a website just by casually visiting or
using that web site. See GTRE supra.
D. Failure To State A Claim Upon Which Relief Can Be Granted (Rule
12(b)(7))
As described above,
Plaintiff has not pleaded any factual allegations relating to any federal
statute cited by Plaintiff as a basis for her complaint. Specifically,
Plaintiff has not alleged any claims as follows:
(1) Misappropriation
or conversion (presumably of Plaintiff’s “trademarks” under the federal
statute).
Plaintiff alleges that
pages appearing on Defendant’s website misappropriate Plaintiff’s name. This is
merely a conclusion, and is ridiculous because all of
the pages and content appear on Defendant’s web site, not the Plaintiff’s. The
pages contain both factual documents and opinions expressed by Defendant and
others relating to Plaintiff or to some of the publicly trade
companies that Plaintiff touts. This content is clearly published by the
Defendant on
Defendant’s web site,
under Defendant’s domain address (mary.cc). The uniform resource locator (URL),
as explained above, is a unique address on a computer directory where the
document is to be found. The domain portion of the address (i.e. “mary.cc”,
with the “cc” being the top-level domain, and “mary”
being the registered domain) is alleged to be registered to Defendant (which it
is). Plaintiff therefore can make no trademark claim, because it is clear that
the federal statute involves registered domain names (see DeGidio v. West Group Corporation, 355 F.3d
506, 69 U.S.P.Q.2d 1538 ( 01/14/2004). The remainder
of the address are directory and document file names. No ultimate fact of
trademark or other protected content is alleged by Plaintiff to be illegally
published by Defendant, and Plaintiff has failed to allege any fact which
proves she has registered any trademark which she alleges has been infringed
upon. Rather, she appears to be perturbed that the post-domain document path
contains her name, “Kathy Knight-McConnell” (which makes sense, since she is
the subject of the published documents).
Thus ALL of Plaintiff’s
trademark claims appear to be related to the post- domain path of the mary.cc
documents. Each web page within a website has a corresponding uniform resource
locator ("URL") (e.g., mary.cc/ kathy_knight_mcconnell.htm), which
consists of a domain name and a post-domain path. A post-domain path (e.g.,
/kathy_knight_mcconnell.htm) merely shows how a web site's data is organized
within the host computer's files. Interactive Products Corporation v.
a2z Mobile Office Solutions, Inc., 326 F.3d 687, 2003 Fed.App.
0111 (6th Cir. 04/10/2003). Interactive Products Corporation is
a case on point because the court found that a trademark found in a post-domain
path is not protected when it is not likely to cause confusion, because the
post-domain path is clearly stated under a fully registered domain name clearly
belonging to another person. Further more,
no
implication is made as
to “source of goods”, nor would any reasonable person infer that the documents
are published by any person other than the owner of the domain mary.cc.
Finally, no factual allegation is made that “Kathy Knight-McConnell” is even a
registered trademark. Even if it was, because it is the name of the person
about whom the alleged documents were written, publication of a person’s name
in a story or published opinion about the person would constitute fair use.
(2) Alleged Securities
Violations.
Plaintiff’s “Sixth Cause
of Action” does not allege even one single fact to bring any claim under Rule
17(b) or Rule 10b-5. Specifically, Plaintiff makes a speculative conclusionary
statement that Defendant is acting in the capacity of a “securities advisor”,
and that Defendant has received “undisclosed payment” for such. This claim is
based upon Plaintiff’s conclusion that Defendant allegedly published on the
internet her opinions that the penny stocks being touted by Plaintiff on her
web site are not investment quality and that shorting them would be a good
strategy.
Plaintiff has alleged
no facts (a) identifying any security which was offered, sold, or purchased by
any person, or that Defendant is involved in the purchase, sale, or offering of
any security; (b) alleging any fact of injury which would give Plaintiff
standing in bringing any such claim; (c) alleging any fact that Defendant is an
advisor under the Exchange Act; or (d) alleging any fact to support Plaintiff’s
conclusion that “upon information and belief, the defendant has been paid in an
undisclosed manner...” (see Complaint at par. 38).
Specifically,
Plaintiff’s conclusionary statement alleging “fraud” has not been pleaded with
particularity as required by Rule 9(b), and therefore must be dismissed WITH
PREJUDICE. Rombach v. Chang, 355
F.3d 164 ( 01/20/2004). Plaintiff does not allege
negligence on the part of the defendant, and therefore the heightened pleading
requirements of Rule 9(b) apply. Ibid.
Plaintiff also states
a conclusion of “conspiracy”, but fails to allege one rudimentary fact of who
the association of “conspirators” are, knowledge of such a conspiracy, any
actionable conduct for which a conspiracy claim can be brought, or how or why
the Plaintiff would have standing to bring such a claim. Plaintiff speculates
that because Defendant was allegedly called as a witness to testify in a civil
fraud case in which Plaintiff is a defendant, that there must be “civil
conspiracy”.
Thus, the Plaintiff
has not alleged even one rudimentary fact necessary to bring a claim under the
federal statutes, let alone to lend this court jurisdiction.
The balance of
Plaintiff’s claims are for state and common law claims
of false light, defamation, and tortious business interference, and therefore
need not be addressed here. While it is doubtful that any of these claims could
survive a preliminary motion to dismiss in state court, any state claims which
may survive under state pleading rules should be brought in the correct forum
in Defendant’s state of residence, not in this federal district court.
Respectfully submitted
this 25th Day of May, 2004.
_________________________________
Mary Cummins,
Defendant pro se
CERTIFICATE OF SERVICE
I hereby certify that
a true copy of the foregoing Memorandum of Points And
Authorities was served on the plaintiff y postage paid U.S. First Class Mail on
the date below at the following address:
Kathy
Knight-McConnell
98 Van Cortland Park
South # 8C
Bronx, New York
10463-2921
Dated this 25th Day of
May, 2004.
By
_______________________________
Mary Cummins