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Douglas Mattern, et al v. Pushtraffic

December 17, 2010

DOUGLAS MATTERN, ET AL., PLAINTIFFS,
v.
PUSHTRAFFIC, ET AL., DEFENDANT.



The opinion of the court was delivered by: Thelton E. Henderson, Judge United States District Court

ORDER

(1) DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND

(2) TRANSFERRING VENUE

This matter came before the Court on December 13, 2010, on Plaintiffs' motion for a temporary restraining order as well as the Court's order to show cause. Plaintiffs are fifty-three people who bring federal and state claims against entities and individuals selling online marketing products. Plaintiffs claim that these entities and individuals violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. section 1961 et seq., as well as the false advertising provisions of the Lanham Act, 15 U.S.C. section 1125(a). They also claim fraud, false advertising, unfair competition, elder and vulnerable person abuse, negligence, money had and received, unauthorized use of likeness, and violation of section 17529.5 of the California Business and Professions Code, which restricts unsolicited commercial e-mail. Two issues are currently before the Court. First, Plaintiffs move for injunctive relief against John Raygoza ("Raygoza"), Ted Molina ("Molina"), Dot Intel, LLC ("DotIntel"), Future Endeavor.com, LLC ("Future Endeavor.com"), PushTraffic, JumpLaunch, Successrate, Youraffiliatesuccess, and IncFortune.*fn1 Second, on December 1, 2010, this Court issued an order to show cause regarding venue in the Northern District. For the reasons set forth below, Plaintiffs' motion is DENIED and venue is transferred to the Central District of California.

BACKGROUND

Plaintiffs are fifty-three people who say they were scammed by entities and individuals selling programs claiming to teach people how to make vast sums of money through the Internet. On their motion for temporary restraining order against some of these entities and individuals, Plaintiffs ask the Court enjoin them from (1) using the Internet, U.S. Postal Service, or telephone to contact prospective buyers "while using predatory and misleading sales practices . . . " and "targeting individuals over age 65 or who are disabled";

(2) contacting Plaintiffs with new offers and solicitations; and (3) using Plaintiffs' financial information. Pls.' Mot. 1-2. Plaintiffs also ask the Court to enjoin PushTraffic, Molina, and Raygoza from using Plaintiffs' likenesses and testimonials to promote their enterprises. In response to the Court's order to show cause as to whether the Northern District of California is a proper venue for this case, or whether the case should be transferred, Plaintiffs request venue discovery.

Plaintiffs submitted little evidence in support of their motion for temporary restraining order. Among the declarations filed by Plaintiffs, none explains the events giving rise to this litigation. The one declaration that explains the business practices alleged in this case was signed by a man who is not a plaintiff and describes events that are not the subject of this litigation. The three declarations signed by individual plaintiffs merely conclude that they were "taken" for a certain amount of money by a given defendant. They go on to explain that these plaintiffs received e-mail solicitations from various defendants after this lawsuit was filed. One woman received an e-mail from a defendant asking her to update her credit card information. She declined to do so, and she does not allege that her credit card was charged thereafter.

In addition to claiming that he, too, was "taken" by Defendants, Plaintiff E. Lee Dale ("Dale") submitted a declaration explaining that his picture appears on the website "Recession Proof Millions," an alleged business alias of Defendant PushTraffic. The website quotes Dale as saying:

I have had the pleasure of meeting Rick and spending 4 hours listening to him speak. I have never been so thrilled with a speaker as I was with Rick. He had my attention every second, even when he spilled his and my coffee. To use his own words he is "Unbelievable."

Dale says that he never made this statement and that Raygoza controls the website on which it appears. A former colleague of Raygoza's, Boaz Rauchwerger, submitted a declaration stating that Raygoza created the concept for Recession Proof Millions. At the hearing, Plaintiffs' counsel alleged that Raygoza shares a business address with Recession Proof Millions. However, in his own declaration, Raygoza states that he does not control or own Recession Proof Millions. At a hearing on December 13, 2010, Raygoza's counsel represented that Recession Proof Millions is not an alias of PushTraffic, where Raygoza serves as an officer. He also represented that no defendant opposing the motion owns or controls Recession Proof Millions.

With regard to venue, the Court issued an order on December 1, 2010, requiring Plaintiffs to arrive at the December 13 hearing prepared to show cause as to why this case should not be dismissed for improper venue, or in the alternative, transferred to San Jose or another district. Plaintiffs filed a written response to the Court's order, arguing that the Court should grant written discovery for the purpose of determining whether the Northern District is a proper venue for this case. Plaintiffs would limit discovery to facts raised by Defendants' motions to dismiss and disputed by Plaintiffs. The disputed facts are (1) whether there is an arbitration and venue provision in all of the alleged contracts between individual plaintiffs and various defendants; (2) the street addresses of Defendants Molina and Christopher Bosley; (3) whether the events or omissions giving rise to Plaintiffs' claims arise from Defendants' activities in Los Angeles, or whether only some of the events or omissions giving rise to this litigation arise there; and (4) whether the Central District is more convenient for the parties and witnesses. At the hearing on December 13, 2010, Plaintiffs conceded that their only link to the Northern District is a single plaintiff residing in Palo Alto. Plaintiffs also stated that the Central District of California, or any district in the United States, is a proper venue for this case.

LEGAL STANDARD

"[W]hen a temporary restraining order is sought on notice to the adverse party, it may be treated by the court as a motion for a preliminary injunction." 13 James W. Moore et al., Moore's Federal Practice §65.31 (3d ed. 2010); see also Kan. Hosp. Ass'n v. Whiteman, 835 F. Supp. 1548, 1551 (D. Kan. 1993). The party moving for preliminary injunction must carry its burden of persuasion by a "clear showing." City of Angoon v. Marsh, 749 F.2d 1413, 1415 (9th Cir. 1984). The Ninth Circuit has clarified the standard for preliminary injunctions in light of the Supreme Court's decision in Winter v. Natural Resources Defense Council, Inc., --- U.S. ----, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). See Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." ...


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