Website "Sale" Into Missouri . . . #18

I was asked a question on our collector club message board about the pretext sale in Missouri that American Plastic tried to hang their venue hat on. I decided to answer it here on the blog for a couple of reasons:

1. To keep my promise not to litigate this case on the message board.

2. I've discovered that this little blog has developed an audience outside of the collector club and wanted to share this amusing story.

I was asked what the Missouri resident purchased off our website in order to 'establish venue' in Missouri.

When I got the 'affidavit' that was 'proof' that we had done business in Missouri, I looked it over very carefully.

At the top were two of those printed notices that fax machines add to the papers that get faxed. The first line said the fax was from American's attorney sending it to a law firm in Kansas City Missouri. The second notice showed the law firm faxing it back to American's attorney. It was done the morning of the day American filed the affidavit in court.

With the info in the two fax lines and the name on the affidavit, I traced the purchase of a Fort Apache Fighter General Odinson to a woman named Monica Hastings.

Here are a few interesting bits:

1. The email address on the PayPal invoice was the email address for an attorney's office in Kansas City, Missouri. The name that made up part of the email address was not Ms. Hastings, it was the attorney.

2. The shipping address was the attorney's office in Kansas City, Missouri.

3. I called the attorney's office and asked to speak to Ms. Hastings. I was told she was not in, but that I could leave a message.

4. The email address used in the PayPal payment is not registered with eBay, so it doesn't belong to a collector that makes regular purchases and has them shipped to a work address.

5. The time stamp on the PayPal payment was 6:22 PM. American Plastic filed their lawsuit the next morning, bright and early.

I was personally amazed and astounded that this person suddenly decided she wanted to collect our action figures less than 24 hours before someone else filed a lawsuit in her home state and district regarding those action figures.

And isn't it a miracle that she works for [or with] an attorney and that American's attorney was able to find this person and get an affidavit from her the very morning that he filed his answer to our motion to transfer venue? Will wonders never cease . . .

This tidbit was not included in the original complaint. The complaint just said that we had transacted business in Missouri. I'm sure American anticipated that we would file a motion to dismiss for lack of jurisdiction and then they could ambush us with this little manufactured factoid.

Here is my response, taken from my reply brief, addressing this earth-shattering bit of info [blocked words are added for clarity]:

"Plaintiff completely misunderstands Defendant’s Motion To Transfer Venue. Relying on the pretext sale, Plaintiff argues that venue is proper upon establishment of personal jurisdiction. As Defendant is not challenging jurisdiction, it does not have to confirm or deny whether it has made legitimate sales into Missouri.

The four factor venue transfer analysis does not rely on the quantity or even existence of sales into the state [of Missouri]. Instead, under [American's] theory, a single pretext sale, in any state, creates ‘universal venue’ where any non-resident can sue any other non-resident at will.

The only convenience here was to [American's] attorney to forum-shop states where he is admitted to practice. When the case in Kansas got complicated, he jumped the border to Missouri and apparently engineered a transaction to facilitate the forum swap. Defendant only asks the case be moved back to the appropriate forum - the District of Kansas."

Thanks to everyone for their continued interest and support. More posts will follow as the drama develops.

Terri

PS: The tabloid title for this post could be "American Plastic caught bootlegging sale to manufacture bogus venue in Missouri."

Get Thee Back To Kansas . . . #17

I guess that since I run a 'tabloid,' my title should read, "American Plastic is run out of Missouri on a rail - film at eleven!"

On June 11, 2007, the judge in the district court of Missouri kicked the new case filed by American back to Kansas saying it should have been filed there in the first place. The judge's opinion is terse and direct and says simply, fight all you want in federal court, but do it someplace other than in my court.

Those little rings all over the case are where the Missouri judge was touching it with a ten-foot pole while deciding what to do with it.

The judge lifted several paragraphs out of my brief and used them in his opinion, specifically that neither company maintains a business in Missouri, both lawyers live and work in Kansas, there is an open court case in Kansas and that American has already tried and failed once in Kansas federal court. In other words . . . . "Get thee back to Kansas." I guess, in law, like in life, there is 'no place like home.' The Missouri judge was not impressed with the single sale that American had 'manufactured' off of our website the night before he filed the lawsuit. When you think about it, just how lame was that stunt anyway . . . As if I wouldn't figure it out.

This is definitely a victory for the Ranch. In a change of venue motion, the defendant bears a heavy burden to move a case to another court. We met that burden squarely and won the decision. It brings the case back in front of the judge that is familiar with the parties and will be able to see how fast and loose American played the facts in its attempt to put one over on the court in Missouri. The attempt to stretch my resources and force me to litigate in two states was a failure. The element of 'surprise' is gone and the attempt to take the initiative away from me is blunted. I changed the entire course of the case, again, back to something of my liking.

The poor little state court case that just 'gets no respect' will have an update in a couple of weeks. When I know something definite, I will post it here.

Thanks to everyone for their continued interest and support.

Terri

The Plot Thickens . . . . #16

Be sure to read post #15 first, it is the lead-in for this post. New Ranchers might want to go all the way to the bottom and read your way up to get the full picture.

The letter posted by spam-queen references a Missouri lawsuit styled "American Plastic Equipment, Inc. v. Toytrackerz LLC." But . . . wait . . . I thought Toytrackerz had sued American in Kansas??

Yes we have and that lawsuit has been pending since January 2006. However, things weren't looking too good for American and its minions in Kansas. They were facing a default judgment and had pretty much been told by the judge that he was going to dismiss Noah and I, as individuals, from the suit for lack of service.

They had also LOST at the federal level when the trademark court decided to uphold the default judgment that cancelled Jay's registration in the trademark 'MARX.' I repeat, Jay Horowitz and American Plastic do NOT hold the Marx federal trademark registration. It is as dead as the proverbial doornail and has been for some time. So, my friends, interpret those ads and sales that claim to be 'Officially Licensed' Marx items with this information in mind. I could give you a 'license' to sell the Brooklyn Bridge or I could say I am 'licensed' to sell the Brooklin Bridge. Just how much is that really worth.

But, I digress. Things are not going well in Kansas and at the federal level for American. So, what did they do? They jumped the border to Missouri and filed their own bright shiny lawsuit against us, using essentially the same documents. Yes, a Florida corporation based in Ohio sued a Kansas company in Missouri. . . . .

In order to do that, they claimed we had done business in Missouri. Jay's attorney also made sure we did business in Missouri by calling up one of his lawyer buddies across the border and having one of his people buy something off of our website the night before he filed the papers. I guess his motto is "If you don't have jurisdiction and venue, then manufacture it!!" Personally, I think it gives a good idea of who we are dealing with. What do you think?

So, instead of dealing with the actual merits of the arguments and finishing up the Kansas case, I've been embroiled in filing motions to dismiss and to transfer the case back to Kansas and other technicalities.

The Missouri case was pretty obviously filed for a number of reasons:

1. Things were going downhill for American in Kansas. They jumped the border in an attempt to clean the slate and get a fresh start.

2. They are trying to avoid paying all the fees needed to properly stand up and litigate at the federal trademark court and 'sue on the cheap.'

3. They left out a LOT of very material facts [such as the fact that the old Marx company had been sold at least twice between Louis Marx and Jay Horowitz] in an attempt to make themselves look better. I say it was to deceive the court and try to obtain an advantage.

4. It is an obvious attempt to harrass and intimidate and take back the initiative. Well, that failed. I regularly check up on Jay's lawyer and how his other cases are going [not well, I might add] and found his little 'surprise' on the Missouri database the day after it was filed. That gave me a month to register to practice in Missouri, do my research and meet with other lawyers to make sure I knew what I needed to know to litigate in another state. So, when my friend, the deputy, showed up at the front door with the papers, it was no surprise, just the opening bell in another round. I came out swinging. So much for the element of surprise . . .

Several motions are before the Missouri federal court and will take as long as they take to get decided. What about the poor little orphaned state court case? Stay tuned, it will have some updates soon.

I'll close with what I've said before. The only two people who have the whole story are myself and Jay's attorney. Listening to anyone else is just speculation, gossip and venom. This case is in state and federal court, not the court-of-public-opinion and people who pretend to know things, like spam-queen, are just pontificating. If you have any questions, drop me an email and I'll answer them to the best of my ability.

Thanks again for your continued support - Terri

It's Been A While! . . . #15

Sorry Gang! It's been a while since I posted. Not a lot has gone on as the legal wheels grind slowly.

However, before I give an update about what's been going on, I want to comment on some emails that have been floating around. Yesterday, three of our friends forwarded me an email that contained this link:

http://ttabvue.uspto.gov/ttabvue/v?pno=78936679&pty=EXT&eno=3


After a little detective work, we discovered who the spammer is. You don't have to do much guessing about her identity . . . I'll just call her 'spam-queen'.

This link is no great secret. It is in the public record of the US Trademark Office [USPTO] and easily available through their website. So, what does it mean?

This link takes you to a letter written by Jay Horowitz's attorney asking that action on one of the Ranch's trademark applications be suspended pending outcome of a lawsuit in Missouri [more about that in a minute]. No big deal, this is a common practice to ask that pending trademark actions be held until a lawsuit is finished. What spam-queen takes as an earth-shattering revelation held my attention for about 5 seconds.

The only thing notable about this letter to the government is that it shows an attempt by Jay Horowitz to 'litigate on the cheap' and try to avoid paying the fees needed to file an opposition to our trademark application.

What that spam-queen didn't send was the USPTO's response. The request to suspend was rejected by USPTO and they were given a specific date to 'cook or get off the stove.' In other words, they can't avoid paying the fees and filing their papers the CORRECT way. They didn't win a thing. The extra time they got is available to anyone just for asking. (You can see the actual USPTO letter by going to the above link and clicking on the dated links in the right hand frame).

So, I'm not sure what spam-queen thought she was accomplishing other than showing, once again, that she knows nothing about what's going on. More to come . . . .

Terri