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Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page1 of 31
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
JAMES MCGIBNEY, an individual; and
VIA VIEW, INC., a corporation.
Plaintiffs,
v.
CASE NO. 5:14-cv-01059-BLF
THOMAS RETZLAFF, an individual;
NEAL RAUHAUSER, an individual;
LANE LIPTON, an individual;
and DOES 1-5, individuals whose true
names are not known,
Defendants.
Hearing Date: November, 13, 2014
Hearing Time: 9:00 am
Courtroom:
3
DEFENDANT THOMAS RETZLAFF’S MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Defendant Retzlaff files this motion to dismiss plaintiffs’ suit for lack of personal
jurisdiction, as authorized by Federal Rule of Civil Procedure 12(b)(2).
A. INTRODUCTION
1.
Plaintiffs are James McGibney and ViaView, Inc.; defendants are Thomas
Retzlaff, Neal Rauhauser, Lane Lipton, and Does 1-5.
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2.
Plaintiffs sued defendants for (1) Tortious Interference with Contractual
Relations; (2) Tortious Interference with Prospective Economic Advantage; (3)
Intentional Infliction of Emotional Distress; (4) Defamation; (5) Public Disclosure /
Invasion Of Privacy in the Northern District of California, San Jose Division.
3.
Defendant Retzlaff is a nonresident of California and has had no purposeful
contacts with California.
Defendant is an individual and does not reside or do
business in California. Defendant resides in Phoenix, Arizona.
4.
The case arises from an attempt by plaintiff ViaView and its employee / CEO
James McGibney to silence free speech and online criticism of plaintiff’s company
(which is a revenge porn website). Both Viaview and James McGibney are Public
Figures within the meaning of the anti-SLAPP statute having inserted themselves into
numerous controversies over the past several years and having made numerous media
appearances regarding the subject of bullying and infidelity. As such, they are the
fair subject of criticism, even intense criticism.
B. ARGUMENT
5.
Before getting started here, defendant Retzlaff, who is appearing pro se, would
like to remind the court that Pro se litigants' court submissions are to be construed
liberally and held to less stringent standards than submissions of lawyers. If the court
can reasonably read the submissions, it should do so despite failure to cite proper
legal authority, confusion of legal theories, poor syntax and sentence construction, or
litigant's unfamiliarity with rule requirements. Boag v. MacDougall, 454 U.S. 364,
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102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d
652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996);
United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot
be held to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58
F.Supp.2d 422, 429 (D.N.J. 1999).
6.
The courts provide pro se parties wide latitude when construing their pleadings
and papers. When interpreting pro se papers, the Court should use common sense to
determine what relief the party desires. S.E.C. v. Elliott, 953 F.2d 1560, 1582 (11th
Cir. 1992). See also, United States v. Miller, 197 F.3d 644, 648 (3rd Cir. 1999)
(Court has special obligation to construe pro se litigants' pleadings liberally); Poling
v. K.Hovnanian Enterprises, 99 F.Supp.2d 502, 506-07 (D.N.J. 2000).
7.
Federal courts do not have jurisdiction over a nonresident defendant unless the
nonresident defendant has purposefully established “minimum contacts” with the
forum state and the exercise of jurisdiction comports with “fair play and substantial
justice.” Daimler AG v. Bauman, ___ U.S. ___, 134 S. Ct. 746, 754 (2014); Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985); World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 291-92 (1980); Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945); Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of
Hous. Metroplex, P.A., 623 F.3d 440, 443-44 (7th Cir. 2010).
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8.
Because Retzlaff is a nonresident, the exercise of personal jurisdiction over
him must be authorized under the state's long-arm statute and must satisfy the due
process clause of the United States Constitution. See Pac. Atl. Trading Co. v. M/V
Main Express, 758 F.2d 1325, 1327 (9th Cir.1985). “California's long-arm statute is
co-extensive with federal standards, so a federal court may exercise personal
jurisdiction if doing so comports with federal constitutional due process.” Boschetto
v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008); see also Cal. Civ. Pro. Code §
410.10. “For a court to exercise personal jurisdiction over a nonresident defendant
consistent with due process, that defendant must have ‘certain minimum contacts'
with the relevant forum ‘such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.’ ” CollegeSource, Inc. v.
AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir.2011) (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154(1954)). Under due process analysis, a
defendant may be subject to either general or specific personal jurisdiction. See
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct.
1868 (1984). When confronted with a motion to dismiss, the plaintiff bears the
burden of establish that jurisdiction is proper. Boschetto v. Hansing, 539 F.3d at
1015. The plaintiff cannot “simply rest on the bare allegations of its complaint,” but
uncontroverted allegations in the complaint are taken as true. Schwarzenegger v.
Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). The court does “not
assume the truth of the allegations in a pleading which are contradicted by affidavit.”
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9.
Here, Plaintiffs cannot not allege that Retzlaff is subject to general jurisdiction
in this judicial district. Moreover, Plaintiffs cannot allege that the court may exercise
specific jurisdiction over the defendant.
NO MINIMUM CONTACTS
10. Under minimum-contacts analysis, a court must determine whether the
nonresident defendant has purposefully availed itself of the benefits and protections
of the forum state by conducting activities within the forum state. J. McIntyre Mach.,
Ltd. v. Nicastro, ___ U.S. ___, 131 S. Ct. 2780, 2787-88 (2011) (plurality op.);
Steinbuch v. Cutler, 518 F.3d 580, 585-86 (8th Cir. 2008). In measuring minimum
contacts, a court should consider the following: (1) the nature and quality of the
contacts with the forum state, (2) the quantity of the contacts, (3) the relation of the
claim to the contacts, (4) the interest of the forum state in providing a forum for its
residents, and (5) the convenience of the parties. Steinbuch, 518 F.3d at 586.
Minimum contacts are not established unless a court finds it has either specific or
general jurisdiction over the defendant. Monge v. RG Petro-Mach. (Grp.) Co., 701
F.3d 598, 613 (10th Cir. 2012); AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d
1358, 1360 (Fed. Cir. 2012). In the case at hand, the only contacts between plaintiffs
and defendant Retzlaff (assuming the allegations in the petition as true, which
defendant does not), took place on the internet on computer servers that might or
might not physically exist in California. Plus, with regards to plaintiffs’ claims of
interference with its business activities, the companies that advertised with plaintiffs
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might or might not be in California. Thus, if defendant had contacted them, said
contacts would not have taken place in California.
11. A court cannot exercise specific jurisdiction over a nonresident defendant
unless the nonresident defendant’s activities were purposefully directed to the forum
state and the litigation resulted from alleged injuries that arise from or relate to those
activities. J. McIntyre Mach., ___ U.S. at ___, 131 S. Ct. at 2787-88 (plurality op.);
Monge, 701 F.3d at 613-14; see Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115,
1121-23 (2014). This Court does not have specific jurisdiction over defendant
Retzlaff because defendant did not purposefully direct his alleged activities to
California and plaintiffs’ claims did not arise from or relate to defendant Retzlaff’s
contacts with California.
Rather, plaintiffs’ claims arose from allegations that
Retzlaff basically engaged in a campaign to interfere with business contracts
plaintiffs claim to have had with various internet advertising companies, as well as to
defame plaintiffs by supposedly calling their company a “revenge porn” company on
various websites. These alleged activities were not directed at a California based
company, but (assuming they took place at all) were directed at a company
incorporated in Delaware and based in Las Vegas.
12. Specifically, plaintiff ViaView, Inc. is a company incorporated in the state of
Delaware. See attached Exhibit A. According to SEC filings, ViaView lists its
principle place of business as 10620 Southern Highlands Parkway, Ste. 110, Las
Vegas, NV 89141, phone # 702-406-7684. See attached Exhibit B. According to the
California Secretary of State’s Office, ViaView, Inc. is not a California business. See
attached Exhibit C. According to the California Franchise Tax Board (the entity that
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collects state personal income tax and corporate income tax), there is no record of a
company called “ViaView, Inc.” with their office.
See attached Declaration of
Retzlaff. Defendant Retzlaff also contacted the Santa Clara County Tax Assessor’s
Office and found they have no record of any company calling itself ViaView, Inc.
See attached Exhibit D.
The same holds true with the California Employment
Development Department, the entity that administers California's payroll tax
collections and employment records – there are no records for any company
calling itself ViaView, Inc. anywhere in the state of California. See attached
Declaration of Retzlaff. Thus, assuming for the sake of argument that plaintiffs’
allegations are true, any alleged actions by this defendant were NOT directed at a
California entity inside the state of California, but to a company outside of the state of
California and outside of the jurisdictional area of this court.
Thus, defendant
Retzlaff did not have any purposeful contacts with the forum state that could give rise
to specific jurisdiction.
13. It should be noted that plaintiffs’ own business records belie the fact that it is a
California company. Specifically, in business filings with the Nevada Secretary of
State’s Office dated July 30, 2014, James McGibney listed himself and his Las Vegas
home as the Address of Record for ViaView, Inc. Why is this?
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See attached Exhibit E.
14. It is important to keep in mind that, despite plaintiff McGibney’s claims to the
contrary, one simply cannot declare a desk in the bedroom of his San Jose rental
home as his “place of business” for an incorporated entity such as ViaView. One
must first obtain the proper licenses, permits, and such from the appropriate state and
county authorities. That has not been done here. All of the records support the fact
that this business is located in Las Vegas, NV.
Multiple Claims Analyzed Independently
15. A plaintiff bringing multiple claims arising from different contacts of the
defendant must establish specific jurisdiction for each claim.
See Seiferth v.
Helicopteros Atuneros, Inc., 472 F.3d 266, 274-75 (5th Cir. 2006) (specific
jurisdiction is a claim-specific inquiry). In the case at hand, plaintiffs have alleged a
HUGE hodgepodge of “kitchen sink” allegations that are very broad and sweeping.
So for each specific claim that plaintiffs make against this specific defendant, they
must establish exactly how this court has specific jurisdiction. Plaintiffs have not
done so.
General Jurisdiction
16. While plaintiffs seem willing to concede that they are not arguing that this
court has general jurisdiction over this defendant (see Plaintiffs’ Opposition to
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Defendant Lane Lipton’s Motion to Dismiss at IV – Argument), this defendant
wishes to address it anyways. A court cannot exercise general jurisdiction over a
nonresident defendant unless there are continuous and systematic contacts between
the nonresident defendant and the forum state. Daimler AG, ___ U.S. at ___, 134 S.
Ct. at 754; Goodyear Dunlop Tires Operations, S.A. v. Brown, ___ U.S. ___, 131 S.
Ct. 2846, 2853 (2011); Monge, 701 F.3d at 614. This Court does not have general
jurisdiction over defendant because defendant has not had continuous or systematic
contacts with California. Defendant Retzlaff has not traveled to California in over
five years, has no place of business or residence in California, and has not taken any
other action that would put defendant on notice that he is subject to the jurisdiction of
a California court.
NO FAIR PLAY
17. This Court’s assumption of jurisdiction over defendant and his property would
offend traditional notions of fair play and substantial justice and would be
inconsistent with the constitutional requirements of due process. See Int’l Shoe, 326
U.S. at 316. The Court should decline to exercise jurisdiction over defendant for the
following reasons:
a.
The Court’s assumption of jurisdiction over defendant and his property
would place an extraordinary burden on defendant. Ellicott Mach. Corp.
v. John Holland Party Ltd., 995 F.2d 474, 479-80 (4th Cir. 1993); see TH
Agric. & Nutrition, LLC v. Ace European Grp. Ltd., 488 F.3d 1282, 129293 (10th Cir. 2007). None of the records, files, or witnesses that would be
favorable to Retzlaff are located in the forum state. Defendant is of very
limited financial means who would have no ability to subpoena witnesses
or items favorable to him in the forum state. He would also have no
ability to attend or participate in any hearings or the trial. On the other
hand, plaintiffs are a very large and wealthy company that claims earnings
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of over $20,000 per month from its revenge porn and other business
activities. The economic disparity between the two parties is substantial.
b.
The Court’s assumption of jurisdiction over defendant and his property
would serve no interest of the forum state. Ellicott Mach. Corp., 995 F.2d
at 479-80; see TH Agric. & Nutrition, LLC, 488 F.3d at 1293-94. Both
plaintiffs and all of the defendants are nonresidents.
c.
The Court’s assumption of jurisdiction over defendant and his property
would allow plaintiffs to prosecute their suit in the forum state even
though they could obtain convenient and effective relief in federal court in
Arizona. TH Agric. & Nutrition, LLC, 488 F.3d at 1294; Ellicott Mach.
Corp., 995 F.2d at 479-80.
C. CONCLUSION
18. Defendant has had no minimum contacts with California. Furthermore, the
Court’s assumption of jurisdiction over defendant would offend traditional notions of
fair play and substantial justice and would be inconsistent with due process of law.
For these reasons, defendant asks the Court to dismiss all of plaintiff’s claims.
Respectfully submitted,
/s/ Thomas Retzlaff
Thomas Retzlaff
PO Box 46424
Phoenix, AZ 85063-6424
Defendant, pro se
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CERTIFICATE OF SERVICE
I certify that on August 5, 2014, a copy of this document was electronically filed on the
CM/ECF system, which will automatically serve a Notice of Electronic Filing on the
following attorney in charge for plaintiffs ViaView & James McGibney:
Jason Scott Leiderman, of 5740 Ralston Street Ste 300, Ventura, CA 93003, Email:
[email protected].
I certify that Jay Leiderman is a registered CM/ECF user and that service will be
accomplished by the CM/ECF system.
I certify that on August 5, 2014, a copy of this document was electronically filed on the
CM/ECF system, which will automatically serve a Notice of Electronic Filing on the
following attorney in charge for defendant Lane Lipton:
Clark Anthony Braunstein, of 11755 Wilshire Boulevard, Suite 2140, Los Angeles, CA
90025, Email: [email protected].
I certify that Clark Anthony Braunstein is a registered CM/ECF user and that service
will be accomplished by the CM/ECF system.
/s/ Thomas Retzlaff
Thomas Retzlaff
Defendant, pro se
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EXHIBIT A
Delaware Incorporation
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EXHIBIT B
SEC Filings
SEC FORM D
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The Securities and Exchange Commission has not necessarily reviewed the information in this filing and
has not determined if it is accurate and complete.
The reader should not assume that the information is accurate and complete.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM D
OMB APPROVAL
OMB Number:
3235 -0076
Expires:
August 31,
2015
Estimated average burden
Notice of Exempt Offering of Securities
hours per
response:
1. Issuer's Identity
Previous
Names
CIK (Filer ID Number)
X None
Entity Type
0001526577
X Corporation
Name of Issuer
ViaView, Inc.
Jurisdiction of Incorporation/Organization
DELAWARE
Year of Incorporation/Organization
X Over Five Years Ago
Limited Partnership
Limited Liability Company
General Partnership
Business Trust
Other (Specify)
Within Last Five Years (Specify Year)
Yet to Be Formed
2. Principal Place of Business and Contact Information
Name of Issuer
ViaView, Inc.
Street Address 1
Street Address 2
10620 SOUTHERN HIGHLANDS PARKWAY
SUITE 110
City
State/Province/Country
ZIP/PostalCode
Phone Number of Issuer
LAS VEGAS
NEVADA
89141
702-406-7684
3. Related Persons
Last Name
First Name
McGibney
James
Street Address 1
Street Address 2
Middle Name
5608 E. Quiet Cloud Ct.
City
State/Province/Country
ZIP/PostalCode
Las Vegas
NEVADA
89141
Relationship: X Executive Officer X Director
Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Mamula
Nick
Middle Name
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4.00
SEC FORM D
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Street Address 1
Street Address 2
3710 W. Sunset Road
City
State/Province/Country
ZIP/PostalCode
Las Vegas
NEVADA
89118
Relationship: X Executive Officer X Director
Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Hubbs
Wayne
Street Address 1
Street Address 2
Middle Name
2229 Lucerne Drive
City
State/Province/Country
ZIP/PostalCode
Henderson
NEVADA
89014
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Caspers
Mark
Street Address 1
Street Address 2
Middle Name
1422 Foothill Village Dr.
City
State/Province/Country
ZIP/PostalCode
Henderson
NEVADA
89012
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Suder
Dave
Street Address 1
Street Address 2
Middle Name
5109 E. LaPalma Avenue, Suite A
City
State/Province/Country
ZIP/PostalCode
Anaheim
CALIFORNIA
92807
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Ryan
Scott
Street Address 1
Street Address 2
Middle Name
624 W. Moon Valley Road
City
State/Province/Country
ZIP/PostalCode
Phoenix
ARIZONA
85023
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
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SEC FORM D
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Last Name
First Name
Carr
Michael
Street Address 1
Street Address 2
Middle Name
8213 San Mateo Street
City
State/Province/Country
ZIP/PostalCode
North Las Vegas
NEVADA
89085
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
4. Industry Group
Agriculture
Health Care
Banking & Financial Services
Commercial Banking
Health Insurance
Insurance
Restaurants
Technology
Hospitals & Physicians
Computers
Investment Banking
Pharmaceuticals
Telecommunications
Pooled Investment Fund
Other Health Care
X Other Technology
Investing
Is the issuer registered as
an investment company under
the Investment Company
Act of 1940?
Yes
No
Other Banking & Financial Services
Biotechnology
Retailing
Business Services
Manufacturing
Airlines & Airports
Real Estate
Commercial
Lodging & Conventions
Construction
Tourism & Travel Services
REITS & Finance
Other Travel
Residential
Energy
Travel
Other
Other Real Estate
Coal Mining
Electric Utilities
Energy Conservation
Environmental Services
Oil & Gas
Other Energy
5. Issuer Size
Revenue Range
No Revenues
$1 - $1,000,000
$1,000,001 - $5,000,000
OR
Aggregate Net Asset Value Range
No Aggregate Net Asset Value
$1 - $5,000,000
$5,000,001 - $25,000,000
$5,000,001 -
$25,000,001 - $50,000,000
$25,000,001 -
$50,000,001 - $100,000,000
$25,000,000
$100,000,000
Over $100,000,000
Over $100,000,000
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SEC FORM D
X Decline to Disclose
Not Applicable
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Decline to Disclose
Not Applicable
6. Federal Exemption(s) and Exclusion(s) Claimed (select all that apply)
Rule 504(b)(1) (not (i), (ii) or (iii))
Rule 505
Rule 504 (b)(1)(i)
X Rule 506
Rule 504 (b)(1)(ii)
Securities Act Section 4(5)
Investment Company Act Section 3(c)
Rule 504 (b)(1)(iii)
Section 3(c)(1)
Section 3(c)(9)
Section 3(c)(2)
Section 3(c)(10)
Section 3(c)(3)
Section 3(c)(11)
Section 3(c)(4)
Section 3(c)(12)
Section 3(c)(5)
Section 3(c)(13)
Section 3(c)(6)
Section 3(c)(14)
Section 3(c)(7)
7. Type of Filing
X New Notice Date of First Sale 2011-07-08
First Sale Yet to Occur
Amendment
8. Duration of Offering
Does the Issuer intend this offering to last more than one year?
Yes X No
9. Type(s) of Securities Offered (select all that apply)
X Equity
Debt
Option, Warrant or Other Right to Acquire Another Security
Security to be Acquired Upon Exercise of Option, Warrant or
Other Right to Acquire Security
Pooled Investment Fund Interests
Tenant-in-Common Securities
Mineral Property Securities
Other (describe)
10. Business Combination Transaction
Is this offering being made in connection with a business combination transaction, such
as a merger, acquisition or exchange offer?
Yes X No
Clarification of Response (if Necessary):
11. Minimum Investment
Minimum investment accepted from any outside investor $0 USD
12. Sales Compensation
Recipient
Recipient CRD Number X None
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SEC FORMD
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(Associated) Broker or
Dealer~ None
(Associated) Broker or Dealer CRD
Street Address 1
City
Number~ None
Street Address 2
State/Province/Country
ZIP/Postal Code
State(s) of Solicitation (select all that apply) DAII States 0Foreign/non-US
Check "All States" or check individual States
13. Offering and Sales Amounts
Total Offering Amount
Total Amount Sold
USD
or~ Indefinite
$ 652,000 USD
Total Remaining to be Sold
USD
or~ Indefinite
Clarification of Response (if Necessary):
14. Investors
Select if securities in the offering have been or may be sold to persons who do not qualify as accredited
Dinvestors,
and enter the number of such non-accredited investors who already have invested in the offering.
Regardless of whether securities in the offering have been or may be sold to persons who do not qualify as
accredited investors, enter the total number of investors who already have invested in the offering:
11
14
11
=====::!J.
1..!::.
15. Sales Commissions & Finder's Fees Expenses
Provide separately the amounts of sales commissions and finders fees expenses, if any. If the amount of an expenditure is not
known, provide an estimate and check the box next to the amount.
DEstimate
Finders' Fees $ 0 USD DEstimate
Sales Commissions $ 0 USD
Clarification of Response (if Necessary):
16. Use of Proceeds
Provide the amount of the gross proceeds of the offering that has been or is proposed to be used for payments to any of the
persons required to be named as executive officers, directors or promoters in response to Item 3 above. If the amount is unknown,
provide an estimate and check the box next to the amount.
$ 0 USD
DEstimate
Clarification of Response (if Necessary):
Signature and Submission
Please verify the information you have entered and review the Terms of Submission below before signing and clicking
SUBMIT below to file this notice.
Terms of Submission
In submitting this notice, each issuer named above is:
• Notifying the SEC and/or each State in which this notice is filed of the offering of securities described and undertaking to
furnish them, upon written request, in the accordance with applicable law, the information furnished to offerees.*
• Irrevocably appointing each of the Secretary of the SEC and, the Securities Administrator or other legally designated officer
of the State in which the issuer maintains its principal p lace of business and any State in which this notice is filed, as its
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SECFORMD
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page20 of 31
agents for service of process, and agreeing that these persons may accept service on its behalf, of any notice, process or
pleading, and further agreeing that such service may be made by registered or certified mail, in any Federal or state action,
administrative proceeding, or arbitration brought against it in any place subject to the jurisdiction of the United States, if the
action, proceeding or arbitration (a) arises out of any activity in connection with the offering of securities that is the subject
of this notice, and (b) is founded, directly or indirectly, upon the provisions of: (i) the Securities Act of 1933, the Securities
Exchange Act of 1934, the Trust Indenture Act of 1939, the Investment Company Act of 1940, or the Investment Advisers
Act of 1940, or any rule or regulation under any of these statutes, or (ii) the laws of the State in which the issuer maintains
its principal place of business or any State in which this notice is filed.
• Certifying that, if the issuer is claiming a Rule 505 exemption, the issuer is not disqualified from relying on Rule 505 for one
of the reasons stated in Rule 505(b)(2)(iii).
Each Issuer identified above has read this notice, knows the contents to be true, and has duly caused this notice to be signed on
its behalf by the undersigned duly authorized person.
For signature, type in the signer's name or other letters or characters adopted or authorized as the signer's signature.
Issuer
!viaView, Inc.
II
Signature
!IJames McGibney
II
Name of Signer
!IJames McGibney
II
Title
!!President and Chief Executive Officer
II
Date
112011-07-28
Persons who respond to the collection of information contained in this form are not required to respond
unless the form displays a currently valid OMB number.
• This undertaking does not affect any limits Section 102(a} of the National Securi ies Mar1<ets Improvement Act of 1996 (''NSMIA") (Pub. L No. 104-290, 110 stat. 3416 (Oct 11. 1996)]
imposes on the ability of states to require infonnation. As a result, if the securities tnat are the sUbject of this Form D are "oovered securities" for purposes of NSMIA, Whether in all
instances or due to the nature of the offering that is the subject of this Form D. states cannot routinely require offering materials under this undertaking or otherwise and can require
offering materials only to the extent NSMIA permits them to do so under NSMIA's preservation of their anti-fraUd authority.
http://www .sec.gov/ AI·chives/edgar/data/1526577/000152657711000001/xslFomillXO 1/primary_doc xml[30-Jan-14 10:06:16 PM]
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page21 of 31
EXHIBIT C
California Secretary of State Info
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EXHIBIT D
Santa Clara County Tax Assessor’s Office
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EXHIBIT E
Nevada Secretary of State’s Office Info
Entity Details - Secretary of State, Nevada
Page 1 of 2
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page26 of 31
VIAVIEW, INC.
Business Entity Information
Status: Active
Type: Foreign Corporation
Qualifying State: DE
Managed By:
NV Business ID: NV20111422461
File Date:
Entity Number:
List of Officers Due:
Expiration Date:
Business License
Exp:
6/23/2011
E0360832011-1
6/30/2015
6/30/2015
Additional Information
Central Index Key:
Registered Agent Information
Name: JAMES MCGIBNEY
Address 2:
State: NV
Phone:
10620 SOUTHERN HIGHLANDS
Mailing Address 1:
PKWY 110-234
Mailing City: LAS VEGAS
Mailing Zip Code: 89141
Agent Type: Noncommercial Registered Agent
Address 1: 5608 E QUIET CLOUD COURT
City: LAS VEGAS
Zip Code: 89141
Fax:
Mailing Address 2:
Mailing State: NV
Financial Information
No Par Share Count: 0
Par Share Count: 200,000,000.00
Capital Amount: $ 20,000.00
Par Share Value: $ 0.0001
Officers
President - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
City: LAS VEGAS
Zip Code: 89141
Status: Active
Secretary - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
City: LAS VEGAS
Zip Code: 89141
Status: Active
Treasurer - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
City: LAS VEGAS
Zip Code: 89141
Status: Active
Director - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
Include Inactive Officers
Address 2:
State: NV
Country: USA
Email:
Address 2:
State: NV
Country: USA
Email:
Address 2:
State: NV
Country: USA
Email:
Address 2:
http://nvsos.gov/SOSEntitySearch/PrintCorp.aspx?lx8nvq=R0AvnJJGaR1B1aHJ5UidWw... 05-Aug-14
Entity Details - Secretary of State, Nevada
Page 2 of 2
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page27 of 31
City: LAS VEGAS
Zip Code: 89141
Status: Active
State: NV
Country: USA
Email:
Actions\Amendments
Action Type: Foreign Qualification
Document Number: 20110465314-87
# of Pages: 2
File Date: 6/23/2011
Effective Date:
Initial Stock Value: Par Value Shares: 200,000,000 Value: $ 0.0001 No Par Value Shares: 0 ---------------------------------------------------------------- Total Authorized Capital: $ 20,000.00
Action Type: Miscellaneous
Document Number: 20110465315-98
# of Pages: 1
File Date: 6/23/2011
Effective Date:
CERTIFICATE OF EXISTENCE FROM DELAWARE DATED 6/23/2011
Action Type: Initial List
Document Number: 20110469039-25
File Date: 6/24/2011
(No notes for this action)
# of Pages: 1
Effective Date:
Action Type: Annual List
Document Number: 20120342306-03
File Date: 5/15/2012
(No notes for this action)
# of Pages: 1
Effective Date:
Action Type: Annual List
Document Number: 20130400366-85
File Date: 6/18/2013
(No notes for this action)
# of Pages: 1
Effective Date:
Action Type: Annual List
Document Number: 20140548801-03
File Date: 7/30/2014
(No notes for this action)
# of Pages: 1
Effective Date:
http://nvsos.gov/SOSEntitySearch/PrintCorp.aspx?lx8nvq=R0AvnJJGaR1B1aHJ5UidWw... 05-Aug-14
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page28 of 31
IN THE UNITED STATES DISTRJCT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
JAMES MCGIBNEY, an individual; and
VIA VIEW, INC., a corporation.
Plaintiffs,
v.
CASE NO. 5:14-cv-01059-BLF
THOMAS RETZLAFF, an individual;
NEAL RAUHAUSER, an individual;
LANE LIPTON, an individual;
and DOES 1-5, individuals whose true
names are not known,
Defendants.
DECLARATION OF THOMAS RETZLAFF IN SUPPORT OF HIS
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
I, Thomas Retzlaff, declare as follows:
1. I am the defendant in this case. I have personal knowledge of the matters stated herein
and, if called as a witness, I could and would testify competently thereto.
2. This Declaration is submitted in support of my motion to dismiss for lack of personal
jurisdiction.
3. Over the past ten 10 years, I have not engaged in any business in or involving the State of
California or with any person or firm located in that state.
I
I
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page29 of 31
4. I have not set foot in State of California in probably 5 or 6 years, and I have never been
anywhere near San Jose, CA ever.
5. I do not own any property in the State of California. I have no intention to reside or own
property in the state of California.
6. On or about July 24, 2014, I contacted the California Franchise Tax Board by telephone
and, after being transferred around a bit, was finally told that there is absolutely no record
of a company called ViaView or ViaView, Inc. with the state of California whatsoever.
The same holds true with the California Employment Development Department and the
California Secretary of State's Office. I called all of these governmental entities myself
and confinned that there is no such company licensed or authorized to do business in the
state of California.
7. I have been able to confirm that ViaView, Inc. is a company that is incorporated in
Delaware and that it has its one and only office in Las Vegas, NV. According to the
Nevada Secretary of State's Office, on July 30,2014, James McOibney, in Document#
20140548801-03, filed with the NV SOS an updated Annual List that shows Mr.
McGibney has the Registered Agent for Service of Process with both a mailing address
and a home address in the city of Las Vegas, NV. See attached Exhibits.
8. I have never had any kind of personal communication with James McGibney. I
specifically deny ever making any kind of "death threats" against Mr. McGibney or his
family. I have never had any contacts with any California-based ViaView entities or
personaL James McGibney only moved to San Jose around December 1, 2013, I believe.
9. I had one email contact with the ViaView company back in September, I think, when I
asked them to take down photographs they had of my daughter on their website. But
Cheaterville has a specific policy of non-removal unless you pay money to a "service"
that is affiliated with them to get the posts down. At least three people have sued
Cheaterville and McGibney in federal court over their blackmail and extortion activities:
2, . .
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page30 of 31
Jared Powers and Winona Valdez Case, a husband and wife from Sacramento, case 2:13cv-01701-JAM-CKD; and Ebenezer Quainoo, a medical doctor from Maryland, case
1: 14-cv-00674-JK.B. There is presently a RICO lawsuit pending in Atlanta, GA against
the Take Down "services" McGibney is involved in with his Cheaterville site that was
filed by a female Georgia attorney who was posted and defamed by these websites, and
then forced to pay money to remove the posts. Because a lot of this and the loss ofhis
advertisers all took place at around the same period of time, I think McGibney blames me
for this and, thus, I because the next name on his Enemies List. See, because every six or
so months McGibney needs someone new to focus his angry on and to rally his "troops"
and to keep up the buzz on his websites. I am just one victim among many. Like when
he accused some guy named James DuffY of murdering people and having dead bodies in
his backyard and claimed that the FBI was going to arrest him "any day now." Or when
McGibney boldly claimed that he was going to file a Class Action lawsuit against every
person who ever had anything mean to say about some Reality TV person named Kate
Gosselin. Or when McGibney claimed that some lady from Canada was tweeting "death
threats" against him and his family a few months ago. Or when McGibney claimed that
some guy named Neal Rauhauser had "SWATted" him or otherwise did "mean things"
on the internets.
10. McGibney has filed a bunch of lawsuits against me and about ten other people all over
the country. Specifically, there are three lawsuits currently pending in three different
forums involving similar claims against the same defendant (and groups of defendants):
(1) McGibney v. Retzlaff, et al., No. 067-270669-14, Tarrant County District Court in Ft.
Worth, Texas, filed February 19, 2014; (2) McGibney v. Retzlaff, et al., No. 14-cv01059-HRL, U.S. District Court for the Northern District of California, filed March 6,
2014; and (3) Via View v. Retzlaff, No. 1-14-CH-005460, Santa Clara County Superior
Court, California, filed March 17, 2014. Prior to the filing of these lawsuits I have never
heard of any of these people and certainly was never in any conspiracy vvith them.
31
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page31 of 31
1 1. James McGibney is obviously a ridiculous person who enjoys making wild,
unsubstantiated claims just to stir up publicity and to feel relevant. The court should not
feed into this nonsense as we all have better things to do with our time, right?
I declare under penalty of pe:rjury under the laws of the State of California that the foregoing is
true and correct.
EXECUTED this 5th day of August, 2014, at Phoenix, AZ.
Thomas Retzlaff
41
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
JAMES MCGIBNEY, an individual; and
VIA VIEW, INC., a corporation.
Plaintiffs,
v.
CASE NO. 5:14-cv-01059-BLF
THOMAS RETZLAFF, an individual;
NEAL RAUHAUSER, an individual;
LANE LIPTON, an individual;
and DOES 1-5, individuals whose true
names are not known,
Defendants.
Hearing Date: November, 13, 2014
Hearing Time: 9:00 am
Courtroom:
3
DEFENDANT THOMAS RETZLAFF’S MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Defendant Retzlaff files this motion to dismiss plaintiffs’ suit for lack of personal
jurisdiction, as authorized by Federal Rule of Civil Procedure 12(b)(2).
A. INTRODUCTION
1.
Plaintiffs are James McGibney and ViaView, Inc.; defendants are Thomas
Retzlaff, Neal Rauhauser, Lane Lipton, and Does 1-5.
1
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page2 of 31
2.
Plaintiffs sued defendants for (1) Tortious Interference with Contractual
Relations; (2) Tortious Interference with Prospective Economic Advantage; (3)
Intentional Infliction of Emotional Distress; (4) Defamation; (5) Public Disclosure /
Invasion Of Privacy in the Northern District of California, San Jose Division.
3.
Defendant Retzlaff is a nonresident of California and has had no purposeful
contacts with California.
Defendant is an individual and does not reside or do
business in California. Defendant resides in Phoenix, Arizona.
4.
The case arises from an attempt by plaintiff ViaView and its employee / CEO
James McGibney to silence free speech and online criticism of plaintiff’s company
(which is a revenge porn website). Both Viaview and James McGibney are Public
Figures within the meaning of the anti-SLAPP statute having inserted themselves into
numerous controversies over the past several years and having made numerous media
appearances regarding the subject of bullying and infidelity. As such, they are the
fair subject of criticism, even intense criticism.
B. ARGUMENT
5.
Before getting started here, defendant Retzlaff, who is appearing pro se, would
like to remind the court that Pro se litigants' court submissions are to be construed
liberally and held to less stringent standards than submissions of lawyers. If the court
can reasonably read the submissions, it should do so despite failure to cite proper
legal authority, confusion of legal theories, poor syntax and sentence construction, or
litigant's unfamiliarity with rule requirements. Boag v. MacDougall, 454 U.S. 364,
2
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102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d
652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996);
United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot
be held to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58
F.Supp.2d 422, 429 (D.N.J. 1999).
6.
The courts provide pro se parties wide latitude when construing their pleadings
and papers. When interpreting pro se papers, the Court should use common sense to
determine what relief the party desires. S.E.C. v. Elliott, 953 F.2d 1560, 1582 (11th
Cir. 1992). See also, United States v. Miller, 197 F.3d 644, 648 (3rd Cir. 1999)
(Court has special obligation to construe pro se litigants' pleadings liberally); Poling
v. K.Hovnanian Enterprises, 99 F.Supp.2d 502, 506-07 (D.N.J. 2000).
7.
Federal courts do not have jurisdiction over a nonresident defendant unless the
nonresident defendant has purposefully established “minimum contacts” with the
forum state and the exercise of jurisdiction comports with “fair play and substantial
justice.” Daimler AG v. Bauman, ___ U.S. ___, 134 S. Ct. 746, 754 (2014); Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985); World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 291-92 (1980); Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945); Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of
Hous. Metroplex, P.A., 623 F.3d 440, 443-44 (7th Cir. 2010).
3
Case5:14-cv-01059-BLF Document23 Filed08/05/14 Page4 of 31
8.
Because Retzlaff is a nonresident, the exercise of personal jurisdiction over
him must be authorized under the state's long-arm statute and must satisfy the due
process clause of the United States Constitution. See Pac. Atl. Trading Co. v. M/V
Main Express, 758 F.2d 1325, 1327 (9th Cir.1985). “California's long-arm statute is
co-extensive with federal standards, so a federal court may exercise personal
jurisdiction if doing so comports with federal constitutional due process.” Boschetto
v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008); see also Cal. Civ. Pro. Code §
410.10. “For a court to exercise personal jurisdiction over a nonresident defendant
consistent with due process, that defendant must have ‘certain minimum contacts'
with the relevant forum ‘such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.’ ” CollegeSource, Inc. v.
AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir.2011) (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154(1954)). Under due process analysis, a
defendant may be subject to either general or specific personal jurisdiction. See
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct.
1868 (1984). When confronted with a motion to dismiss, the plaintiff bears the
burden of establish that jurisdiction is proper. Boschetto v. Hansing, 539 F.3d at
1015. The plaintiff cannot “simply rest on the bare allegations of its complaint,” but
uncontroverted allegations in the complaint are taken as true. Schwarzenegger v.
Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). The court does “not
assume the truth of the allegations in a pleading which are contradicted by affidavit.”
4
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9.
Here, Plaintiffs cannot not allege that Retzlaff is subject to general jurisdiction
in this judicial district. Moreover, Plaintiffs cannot allege that the court may exercise
specific jurisdiction over the defendant.
NO MINIMUM CONTACTS
10. Under minimum-contacts analysis, a court must determine whether the
nonresident defendant has purposefully availed itself of the benefits and protections
of the forum state by conducting activities within the forum state. J. McIntyre Mach.,
Ltd. v. Nicastro, ___ U.S. ___, 131 S. Ct. 2780, 2787-88 (2011) (plurality op.);
Steinbuch v. Cutler, 518 F.3d 580, 585-86 (8th Cir. 2008). In measuring minimum
contacts, a court should consider the following: (1) the nature and quality of the
contacts with the forum state, (2) the quantity of the contacts, (3) the relation of the
claim to the contacts, (4) the interest of the forum state in providing a forum for its
residents, and (5) the convenience of the parties. Steinbuch, 518 F.3d at 586.
Minimum contacts are not established unless a court finds it has either specific or
general jurisdiction over the defendant. Monge v. RG Petro-Mach. (Grp.) Co., 701
F.3d 598, 613 (10th Cir. 2012); AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d
1358, 1360 (Fed. Cir. 2012). In the case at hand, the only contacts between plaintiffs
and defendant Retzlaff (assuming the allegations in the petition as true, which
defendant does not), took place on the internet on computer servers that might or
might not physically exist in California. Plus, with regards to plaintiffs’ claims of
interference with its business activities, the companies that advertised with plaintiffs
5
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might or might not be in California. Thus, if defendant had contacted them, said
contacts would not have taken place in California.
11. A court cannot exercise specific jurisdiction over a nonresident defendant
unless the nonresident defendant’s activities were purposefully directed to the forum
state and the litigation resulted from alleged injuries that arise from or relate to those
activities. J. McIntyre Mach., ___ U.S. at ___, 131 S. Ct. at 2787-88 (plurality op.);
Monge, 701 F.3d at 613-14; see Walden v. Fiore, ___ U.S. ___, 134 S. Ct. 1115,
1121-23 (2014). This Court does not have specific jurisdiction over defendant
Retzlaff because defendant did not purposefully direct his alleged activities to
California and plaintiffs’ claims did not arise from or relate to defendant Retzlaff’s
contacts with California.
Rather, plaintiffs’ claims arose from allegations that
Retzlaff basically engaged in a campaign to interfere with business contracts
plaintiffs claim to have had with various internet advertising companies, as well as to
defame plaintiffs by supposedly calling their company a “revenge porn” company on
various websites. These alleged activities were not directed at a California based
company, but (assuming they took place at all) were directed at a company
incorporated in Delaware and based in Las Vegas.
12. Specifically, plaintiff ViaView, Inc. is a company incorporated in the state of
Delaware. See attached Exhibit A. According to SEC filings, ViaView lists its
principle place of business as 10620 Southern Highlands Parkway, Ste. 110, Las
Vegas, NV 89141, phone # 702-406-7684. See attached Exhibit B. According to the
California Secretary of State’s Office, ViaView, Inc. is not a California business. See
attached Exhibit C. According to the California Franchise Tax Board (the entity that
6
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collects state personal income tax and corporate income tax), there is no record of a
company called “ViaView, Inc.” with their office.
See attached Declaration of
Retzlaff. Defendant Retzlaff also contacted the Santa Clara County Tax Assessor’s
Office and found they have no record of any company calling itself ViaView, Inc.
See attached Exhibit D.
The same holds true with the California Employment
Development Department, the entity that administers California's payroll tax
collections and employment records – there are no records for any company
calling itself ViaView, Inc. anywhere in the state of California. See attached
Declaration of Retzlaff. Thus, assuming for the sake of argument that plaintiffs’
allegations are true, any alleged actions by this defendant were NOT directed at a
California entity inside the state of California, but to a company outside of the state of
California and outside of the jurisdictional area of this court.
Thus, defendant
Retzlaff did not have any purposeful contacts with the forum state that could give rise
to specific jurisdiction.
13. It should be noted that plaintiffs’ own business records belie the fact that it is a
California company. Specifically, in business filings with the Nevada Secretary of
State’s Office dated July 30, 2014, James McGibney listed himself and his Las Vegas
home as the Address of Record for ViaView, Inc. Why is this?
7
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See attached Exhibit E.
14. It is important to keep in mind that, despite plaintiff McGibney’s claims to the
contrary, one simply cannot declare a desk in the bedroom of his San Jose rental
home as his “place of business” for an incorporated entity such as ViaView. One
must first obtain the proper licenses, permits, and such from the appropriate state and
county authorities. That has not been done here. All of the records support the fact
that this business is located in Las Vegas, NV.
Multiple Claims Analyzed Independently
15. A plaintiff bringing multiple claims arising from different contacts of the
defendant must establish specific jurisdiction for each claim.
See Seiferth v.
Helicopteros Atuneros, Inc., 472 F.3d 266, 274-75 (5th Cir. 2006) (specific
jurisdiction is a claim-specific inquiry). In the case at hand, plaintiffs have alleged a
HUGE hodgepodge of “kitchen sink” allegations that are very broad and sweeping.
So for each specific claim that plaintiffs make against this specific defendant, they
must establish exactly how this court has specific jurisdiction. Plaintiffs have not
done so.
General Jurisdiction
16. While plaintiffs seem willing to concede that they are not arguing that this
court has general jurisdiction over this defendant (see Plaintiffs’ Opposition to
8
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Defendant Lane Lipton’s Motion to Dismiss at IV – Argument), this defendant
wishes to address it anyways. A court cannot exercise general jurisdiction over a
nonresident defendant unless there are continuous and systematic contacts between
the nonresident defendant and the forum state. Daimler AG, ___ U.S. at ___, 134 S.
Ct. at 754; Goodyear Dunlop Tires Operations, S.A. v. Brown, ___ U.S. ___, 131 S.
Ct. 2846, 2853 (2011); Monge, 701 F.3d at 614. This Court does not have general
jurisdiction over defendant because defendant has not had continuous or systematic
contacts with California. Defendant Retzlaff has not traveled to California in over
five years, has no place of business or residence in California, and has not taken any
other action that would put defendant on notice that he is subject to the jurisdiction of
a California court.
NO FAIR PLAY
17. This Court’s assumption of jurisdiction over defendant and his property would
offend traditional notions of fair play and substantial justice and would be
inconsistent with the constitutional requirements of due process. See Int’l Shoe, 326
U.S. at 316. The Court should decline to exercise jurisdiction over defendant for the
following reasons:
a.
The Court’s assumption of jurisdiction over defendant and his property
would place an extraordinary burden on defendant. Ellicott Mach. Corp.
v. John Holland Party Ltd., 995 F.2d 474, 479-80 (4th Cir. 1993); see TH
Agric. & Nutrition, LLC v. Ace European Grp. Ltd., 488 F.3d 1282, 129293 (10th Cir. 2007). None of the records, files, or witnesses that would be
favorable to Retzlaff are located in the forum state. Defendant is of very
limited financial means who would have no ability to subpoena witnesses
or items favorable to him in the forum state. He would also have no
ability to attend or participate in any hearings or the trial. On the other
hand, plaintiffs are a very large and wealthy company that claims earnings
9
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of over $20,000 per month from its revenge porn and other business
activities. The economic disparity between the two parties is substantial.
b.
The Court’s assumption of jurisdiction over defendant and his property
would serve no interest of the forum state. Ellicott Mach. Corp., 995 F.2d
at 479-80; see TH Agric. & Nutrition, LLC, 488 F.3d at 1293-94. Both
plaintiffs and all of the defendants are nonresidents.
c.
The Court’s assumption of jurisdiction over defendant and his property
would allow plaintiffs to prosecute their suit in the forum state even
though they could obtain convenient and effective relief in federal court in
Arizona. TH Agric. & Nutrition, LLC, 488 F.3d at 1294; Ellicott Mach.
Corp., 995 F.2d at 479-80.
C. CONCLUSION
18. Defendant has had no minimum contacts with California. Furthermore, the
Court’s assumption of jurisdiction over defendant would offend traditional notions of
fair play and substantial justice and would be inconsistent with due process of law.
For these reasons, defendant asks the Court to dismiss all of plaintiff’s claims.
Respectfully submitted,
/s/ Thomas Retzlaff
Thomas Retzlaff
PO Box 46424
Phoenix, AZ 85063-6424
Defendant, pro se
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CERTIFICATE OF SERVICE
I certify that on August 5, 2014, a copy of this document was electronically filed on the
CM/ECF system, which will automatically serve a Notice of Electronic Filing on the
following attorney in charge for plaintiffs ViaView & James McGibney:
Jason Scott Leiderman, of 5740 Ralston Street Ste 300, Ventura, CA 93003, Email:
[email protected].
I certify that Jay Leiderman is a registered CM/ECF user and that service will be
accomplished by the CM/ECF system.
I certify that on August 5, 2014, a copy of this document was electronically filed on the
CM/ECF system, which will automatically serve a Notice of Electronic Filing on the
following attorney in charge for defendant Lane Lipton:
Clark Anthony Braunstein, of 11755 Wilshire Boulevard, Suite 2140, Los Angeles, CA
90025, Email: [email protected].
I certify that Clark Anthony Braunstein is a registered CM/ECF user and that service
will be accomplished by the CM/ECF system.
/s/ Thomas Retzlaff
Thomas Retzlaff
Defendant, pro se
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EXHIBIT A
Delaware Incorporation
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EXHIBIT B
SEC Filings
SEC FORM D
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The Securities and Exchange Commission has not necessarily reviewed the information in this filing and
has not determined if it is accurate and complete.
The reader should not assume that the information is accurate and complete.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM D
OMB APPROVAL
OMB Number:
3235 -0076
Expires:
August 31,
2015
Estimated average burden
Notice of Exempt Offering of Securities
hours per
response:
1. Issuer's Identity
Previous
Names
CIK (Filer ID Number)
X None
Entity Type
0001526577
X Corporation
Name of Issuer
ViaView, Inc.
Jurisdiction of Incorporation/Organization
DELAWARE
Year of Incorporation/Organization
X Over Five Years Ago
Limited Partnership
Limited Liability Company
General Partnership
Business Trust
Other (Specify)
Within Last Five Years (Specify Year)
Yet to Be Formed
2. Principal Place of Business and Contact Information
Name of Issuer
ViaView, Inc.
Street Address 1
Street Address 2
10620 SOUTHERN HIGHLANDS PARKWAY
SUITE 110
City
State/Province/Country
ZIP/PostalCode
Phone Number of Issuer
LAS VEGAS
NEVADA
89141
702-406-7684
3. Related Persons
Last Name
First Name
McGibney
James
Street Address 1
Street Address 2
Middle Name
5608 E. Quiet Cloud Ct.
City
State/Province/Country
ZIP/PostalCode
Las Vegas
NEVADA
89141
Relationship: X Executive Officer X Director
Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Mamula
Nick
Middle Name
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4.00
SEC FORM D
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Street Address 1
Street Address 2
3710 W. Sunset Road
City
State/Province/Country
ZIP/PostalCode
Las Vegas
NEVADA
89118
Relationship: X Executive Officer X Director
Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Hubbs
Wayne
Street Address 1
Street Address 2
Middle Name
2229 Lucerne Drive
City
State/Province/Country
ZIP/PostalCode
Henderson
NEVADA
89014
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Caspers
Mark
Street Address 1
Street Address 2
Middle Name
1422 Foothill Village Dr.
City
State/Province/Country
ZIP/PostalCode
Henderson
NEVADA
89012
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Suder
Dave
Street Address 1
Street Address 2
Middle Name
5109 E. LaPalma Avenue, Suite A
City
State/Province/Country
ZIP/PostalCode
Anaheim
CALIFORNIA
92807
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
Last Name
First Name
Ryan
Scott
Street Address 1
Street Address 2
Middle Name
624 W. Moon Valley Road
City
State/Province/Country
ZIP/PostalCode
Phoenix
ARIZONA
85023
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
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SEC FORM D
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Last Name
First Name
Carr
Michael
Street Address 1
Street Address 2
Middle Name
8213 San Mateo Street
City
State/Province/Country
ZIP/PostalCode
North Las Vegas
NEVADA
89085
Relationship:
Executive Officer X Director Promoter
Clarification of Response (if Necessary):
4. Industry Group
Agriculture
Health Care
Banking & Financial Services
Commercial Banking
Health Insurance
Insurance
Restaurants
Technology
Hospitals & Physicians
Computers
Investment Banking
Pharmaceuticals
Telecommunications
Pooled Investment Fund
Other Health Care
X Other Technology
Investing
Is the issuer registered as
an investment company under
the Investment Company
Act of 1940?
Yes
No
Other Banking & Financial Services
Biotechnology
Retailing
Business Services
Manufacturing
Airlines & Airports
Real Estate
Commercial
Lodging & Conventions
Construction
Tourism & Travel Services
REITS & Finance
Other Travel
Residential
Energy
Travel
Other
Other Real Estate
Coal Mining
Electric Utilities
Energy Conservation
Environmental Services
Oil & Gas
Other Energy
5. Issuer Size
Revenue Range
No Revenues
$1 - $1,000,000
$1,000,001 - $5,000,000
OR
Aggregate Net Asset Value Range
No Aggregate Net Asset Value
$1 - $5,000,000
$5,000,001 - $25,000,000
$5,000,001 -
$25,000,001 - $50,000,000
$25,000,001 -
$50,000,001 - $100,000,000
$25,000,000
$100,000,000
Over $100,000,000
Over $100,000,000
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SEC FORM D
X Decline to Disclose
Not Applicable
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Decline to Disclose
Not Applicable
6. Federal Exemption(s) and Exclusion(s) Claimed (select all that apply)
Rule 504(b)(1) (not (i), (ii) or (iii))
Rule 505
Rule 504 (b)(1)(i)
X Rule 506
Rule 504 (b)(1)(ii)
Securities Act Section 4(5)
Investment Company Act Section 3(c)
Rule 504 (b)(1)(iii)
Section 3(c)(1)
Section 3(c)(9)
Section 3(c)(2)
Section 3(c)(10)
Section 3(c)(3)
Section 3(c)(11)
Section 3(c)(4)
Section 3(c)(12)
Section 3(c)(5)
Section 3(c)(13)
Section 3(c)(6)
Section 3(c)(14)
Section 3(c)(7)
7. Type of Filing
X New Notice Date of First Sale 2011-07-08
First Sale Yet to Occur
Amendment
8. Duration of Offering
Does the Issuer intend this offering to last more than one year?
Yes X No
9. Type(s) of Securities Offered (select all that apply)
X Equity
Debt
Option, Warrant or Other Right to Acquire Another Security
Security to be Acquired Upon Exercise of Option, Warrant or
Other Right to Acquire Security
Pooled Investment Fund Interests
Tenant-in-Common Securities
Mineral Property Securities
Other (describe)
10. Business Combination Transaction
Is this offering being made in connection with a business combination transaction, such
as a merger, acquisition or exchange offer?
Yes X No
Clarification of Response (if Necessary):
11. Minimum Investment
Minimum investment accepted from any outside investor $0 USD
12. Sales Compensation
Recipient
Recipient CRD Number X None
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SEC FORMD
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(Associated) Broker or
Dealer~ None
(Associated) Broker or Dealer CRD
Street Address 1
City
Number~ None
Street Address 2
State/Province/Country
ZIP/Postal Code
State(s) of Solicitation (select all that apply) DAII States 0Foreign/non-US
Check "All States" or check individual States
13. Offering and Sales Amounts
Total Offering Amount
Total Amount Sold
USD
or~ Indefinite
$ 652,000 USD
Total Remaining to be Sold
USD
or~ Indefinite
Clarification of Response (if Necessary):
14. Investors
Select if securities in the offering have been or may be sold to persons who do not qualify as accredited
Dinvestors,
and enter the number of such non-accredited investors who already have invested in the offering.
Regardless of whether securities in the offering have been or may be sold to persons who do not qualify as
accredited investors, enter the total number of investors who already have invested in the offering:
11
14
11
=====::!J.
1..!::.
15. Sales Commissions & Finder's Fees Expenses
Provide separately the amounts of sales commissions and finders fees expenses, if any. If the amount of an expenditure is not
known, provide an estimate and check the box next to the amount.
DEstimate
Finders' Fees $ 0 USD DEstimate
Sales Commissions $ 0 USD
Clarification of Response (if Necessary):
16. Use of Proceeds
Provide the amount of the gross proceeds of the offering that has been or is proposed to be used for payments to any of the
persons required to be named as executive officers, directors or promoters in response to Item 3 above. If the amount is unknown,
provide an estimate and check the box next to the amount.
$ 0 USD
DEstimate
Clarification of Response (if Necessary):
Signature and Submission
Please verify the information you have entered and review the Terms of Submission below before signing and clicking
SUBMIT below to file this notice.
Terms of Submission
In submitting this notice, each issuer named above is:
• Notifying the SEC and/or each State in which this notice is filed of the offering of securities described and undertaking to
furnish them, upon written request, in the accordance with applicable law, the information furnished to offerees.*
• Irrevocably appointing each of the Secretary of the SEC and, the Securities Administrator or other legally designated officer
of the State in which the issuer maintains its principal p lace of business and any State in which this notice is filed, as its
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SECFORMD
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agents for service of process, and agreeing that these persons may accept service on its behalf, of any notice, process or
pleading, and further agreeing that such service may be made by registered or certified mail, in any Federal or state action,
administrative proceeding, or arbitration brought against it in any place subject to the jurisdiction of the United States, if the
action, proceeding or arbitration (a) arises out of any activity in connection with the offering of securities that is the subject
of this notice, and (b) is founded, directly or indirectly, upon the provisions of: (i) the Securities Act of 1933, the Securities
Exchange Act of 1934, the Trust Indenture Act of 1939, the Investment Company Act of 1940, or the Investment Advisers
Act of 1940, or any rule or regulation under any of these statutes, or (ii) the laws of the State in which the issuer maintains
its principal place of business or any State in which this notice is filed.
• Certifying that, if the issuer is claiming a Rule 505 exemption, the issuer is not disqualified from relying on Rule 505 for one
of the reasons stated in Rule 505(b)(2)(iii).
Each Issuer identified above has read this notice, knows the contents to be true, and has duly caused this notice to be signed on
its behalf by the undersigned duly authorized person.
For signature, type in the signer's name or other letters or characters adopted or authorized as the signer's signature.
Issuer
!viaView, Inc.
II
Signature
!IJames McGibney
II
Name of Signer
!IJames McGibney
II
Title
!!President and Chief Executive Officer
II
Date
112011-07-28
Persons who respond to the collection of information contained in this form are not required to respond
unless the form displays a currently valid OMB number.
• This undertaking does not affect any limits Section 102(a} of the National Securi ies Mar1<ets Improvement Act of 1996 (''NSMIA") (Pub. L No. 104-290, 110 stat. 3416 (Oct 11. 1996)]
imposes on the ability of states to require infonnation. As a result, if the securities tnat are the sUbject of this Form D are "oovered securities" for purposes of NSMIA, Whether in all
instances or due to the nature of the offering that is the subject of this Form D. states cannot routinely require offering materials under this undertaking or otherwise and can require
offering materials only to the extent NSMIA permits them to do so under NSMIA's preservation of their anti-fraUd authority.
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EXHIBIT C
California Secretary of State Info
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EXHIBIT D
Santa Clara County Tax Assessor’s Office
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EXHIBIT E
Nevada Secretary of State’s Office Info
Entity Details - Secretary of State, Nevada
Page 1 of 2
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VIAVIEW, INC.
Business Entity Information
Status: Active
Type: Foreign Corporation
Qualifying State: DE
Managed By:
NV Business ID: NV20111422461
File Date:
Entity Number:
List of Officers Due:
Expiration Date:
Business License
Exp:
6/23/2011
E0360832011-1
6/30/2015
6/30/2015
Additional Information
Central Index Key:
Registered Agent Information
Name: JAMES MCGIBNEY
Address 2:
State: NV
Phone:
10620 SOUTHERN HIGHLANDS
Mailing Address 1:
PKWY 110-234
Mailing City: LAS VEGAS
Mailing Zip Code: 89141
Agent Type: Noncommercial Registered Agent
Address 1: 5608 E QUIET CLOUD COURT
City: LAS VEGAS
Zip Code: 89141
Fax:
Mailing Address 2:
Mailing State: NV
Financial Information
No Par Share Count: 0
Par Share Count: 200,000,000.00
Capital Amount: $ 20,000.00
Par Share Value: $ 0.0001
Officers
President - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
City: LAS VEGAS
Zip Code: 89141
Status: Active
Secretary - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
City: LAS VEGAS
Zip Code: 89141
Status: Active
Treasurer - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
City: LAS VEGAS
Zip Code: 89141
Status: Active
Director - JAMES MCGIBNEY
10620 SOUTHERN HIGHLANDS
Address 1:
PARKWAY SUITE 110-234
Include Inactive Officers
Address 2:
State: NV
Country: USA
Email:
Address 2:
State: NV
Country: USA
Email:
Address 2:
State: NV
Country: USA
Email:
Address 2:
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Entity Details - Secretary of State, Nevada
Page 2 of 2
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City: LAS VEGAS
Zip Code: 89141
Status: Active
State: NV
Country: USA
Email:
Actions\Amendments
Action Type: Foreign Qualification
Document Number: 20110465314-87
# of Pages: 2
File Date: 6/23/2011
Effective Date:
Initial Stock Value: Par Value Shares: 200,000,000 Value: $ 0.0001 No Par Value Shares: 0 ---------------------------------------------------------------- Total Authorized Capital: $ 20,000.00
Action Type: Miscellaneous
Document Number: 20110465315-98
# of Pages: 1
File Date: 6/23/2011
Effective Date:
CERTIFICATE OF EXISTENCE FROM DELAWARE DATED 6/23/2011
Action Type: Initial List
Document Number: 20110469039-25
File Date: 6/24/2011
(No notes for this action)
# of Pages: 1
Effective Date:
Action Type: Annual List
Document Number: 20120342306-03
File Date: 5/15/2012
(No notes for this action)
# of Pages: 1
Effective Date:
Action Type: Annual List
Document Number: 20130400366-85
File Date: 6/18/2013
(No notes for this action)
# of Pages: 1
Effective Date:
Action Type: Annual List
Document Number: 20140548801-03
File Date: 7/30/2014
(No notes for this action)
# of Pages: 1
Effective Date:
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IN THE UNITED STATES DISTRJCT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
JAMES MCGIBNEY, an individual; and
VIA VIEW, INC., a corporation.
Plaintiffs,
v.
CASE NO. 5:14-cv-01059-BLF
THOMAS RETZLAFF, an individual;
NEAL RAUHAUSER, an individual;
LANE LIPTON, an individual;
and DOES 1-5, individuals whose true
names are not known,
Defendants.
DECLARATION OF THOMAS RETZLAFF IN SUPPORT OF HIS
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
I, Thomas Retzlaff, declare as follows:
1. I am the defendant in this case. I have personal knowledge of the matters stated herein
and, if called as a witness, I could and would testify competently thereto.
2. This Declaration is submitted in support of my motion to dismiss for lack of personal
jurisdiction.
3. Over the past ten 10 years, I have not engaged in any business in or involving the State of
California or with any person or firm located in that state.
I
I
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4. I have not set foot in State of California in probably 5 or 6 years, and I have never been
anywhere near San Jose, CA ever.
5. I do not own any property in the State of California. I have no intention to reside or own
property in the state of California.
6. On or about July 24, 2014, I contacted the California Franchise Tax Board by telephone
and, after being transferred around a bit, was finally told that there is absolutely no record
of a company called ViaView or ViaView, Inc. with the state of California whatsoever.
The same holds true with the California Employment Development Department and the
California Secretary of State's Office. I called all of these governmental entities myself
and confinned that there is no such company licensed or authorized to do business in the
state of California.
7. I have been able to confirm that ViaView, Inc. is a company that is incorporated in
Delaware and that it has its one and only office in Las Vegas, NV. According to the
Nevada Secretary of State's Office, on July 30,2014, James McOibney, in Document#
20140548801-03, filed with the NV SOS an updated Annual List that shows Mr.
McGibney has the Registered Agent for Service of Process with both a mailing address
and a home address in the city of Las Vegas, NV. See attached Exhibits.
8. I have never had any kind of personal communication with James McGibney. I
specifically deny ever making any kind of "death threats" against Mr. McGibney or his
family. I have never had any contacts with any California-based ViaView entities or
personaL James McGibney only moved to San Jose around December 1, 2013, I believe.
9. I had one email contact with the ViaView company back in September, I think, when I
asked them to take down photographs they had of my daughter on their website. But
Cheaterville has a specific policy of non-removal unless you pay money to a "service"
that is affiliated with them to get the posts down. At least three people have sued
Cheaterville and McGibney in federal court over their blackmail and extortion activities:
2, . .
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Jared Powers and Winona Valdez Case, a husband and wife from Sacramento, case 2:13cv-01701-JAM-CKD; and Ebenezer Quainoo, a medical doctor from Maryland, case
1: 14-cv-00674-JK.B. There is presently a RICO lawsuit pending in Atlanta, GA against
the Take Down "services" McGibney is involved in with his Cheaterville site that was
filed by a female Georgia attorney who was posted and defamed by these websites, and
then forced to pay money to remove the posts. Because a lot of this and the loss ofhis
advertisers all took place at around the same period of time, I think McGibney blames me
for this and, thus, I because the next name on his Enemies List. See, because every six or
so months McGibney needs someone new to focus his angry on and to rally his "troops"
and to keep up the buzz on his websites. I am just one victim among many. Like when
he accused some guy named James DuffY of murdering people and having dead bodies in
his backyard and claimed that the FBI was going to arrest him "any day now." Or when
McGibney boldly claimed that he was going to file a Class Action lawsuit against every
person who ever had anything mean to say about some Reality TV person named Kate
Gosselin. Or when McGibney claimed that some lady from Canada was tweeting "death
threats" against him and his family a few months ago. Or when McGibney claimed that
some guy named Neal Rauhauser had "SWATted" him or otherwise did "mean things"
on the internets.
10. McGibney has filed a bunch of lawsuits against me and about ten other people all over
the country. Specifically, there are three lawsuits currently pending in three different
forums involving similar claims against the same defendant (and groups of defendants):
(1) McGibney v. Retzlaff, et al., No. 067-270669-14, Tarrant County District Court in Ft.
Worth, Texas, filed February 19, 2014; (2) McGibney v. Retzlaff, et al., No. 14-cv01059-HRL, U.S. District Court for the Northern District of California, filed March 6,
2014; and (3) Via View v. Retzlaff, No. 1-14-CH-005460, Santa Clara County Superior
Court, California, filed March 17, 2014. Prior to the filing of these lawsuits I have never
heard of any of these people and certainly was never in any conspiracy vvith them.
31
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1 1. James McGibney is obviously a ridiculous person who enjoys making wild,
unsubstantiated claims just to stir up publicity and to feel relevant. The court should not
feed into this nonsense as we all have better things to do with our time, right?
I declare under penalty of pe:rjury under the laws of the State of California that the foregoing is
true and correct.
EXECUTED this 5th day of August, 2014, at Phoenix, AZ.
Thomas Retzlaff
41
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