Case5:14-cv-01059-BLF Document30 Filed08/11/14 Page1 of 7

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Robert S. Giolito (State Bar No. 244161)

rgiolito@giolitolaw.com
LAW OFFICE OF ROBERT S. GIOLITO, P.C.
11755 Wilshire Boulevard, Suite 2140
Los Angeles, California 90025
(310) 473-3535 (Telephone)
(310) 473-3533 (Facsimile)
Clark Anthony Braunstein (State Bar No. 278023)
Clarkbraunstein@gmail.com
BRAUNSTEIN & BRAUNSTEIN, P.C.
11755 Wilshire Boulevard, Suite 2140
Los Angeles, California 90025
(310) 914-4999 (Telephone)
(310) 914-4996 (Facsimile)

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Attorneys for Defendant

Lane Lipton

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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JAMES MCGIBNEY, an individual; and

VIA VIEW, INC., a corporation.

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Plaintiffs,
v.

CASE NO. 5:14-cv-01059-BLF

(Assigned to Hon. Beth Labson Freeman)
DEFENDANT LANE LIPTONS REPLY
BRIEF IN SUPPORT OF MOTION TO
DISMISS THE COMPLAINT

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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: September 18, 2014

Hearing Time: 9:00am
Dept.: Courtroom 3
Amended Complaint Filed: March 17, 2014
Trial Date: None Set

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________________________________________

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Defendant Lane Lipton (Defendant or Lipton) submits the following reply in support
of her Motion to Dismiss Complaint.
I.

INTRODUCTION

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Plaintiffs James McGibney (McGibney) and Via View, Inc. (collectively Plaintiffs)
acknowledge that they must prove that Lipton expressly aimed her alleged communications
at the forum state in order to obtain personal jurisdiction over her. Plaintiffs Opposition, p. 4
(emphasis ours). 1 But Plaintiffs have failed to show that those communications, which were
made over the Internet, were purposely directed to California, let alone anywhere else. Plaintiffs
further acknowledge that haling Lipton, a New York resident, into a California court must not be
unreasonable. Plaintiffs Opposition, p.6. However, while Plaintiffs mistakenly emphasize
their own convenience in filing suit in California, the proper jurisdictional inquiry principally
protects the liberty of the nonresident defendant, not the interests of the plaintiff. Walden v.
Fiore, ___ U.S. ____, 134 S.Ct. 1115, n.9. Under that standard, it is neither fair nor reasonable
to assert jurisdiction over Lipton. Plaintiffs also misread California law in asserting that Lipton
made an appearance in this case by concurrently filing a special motion to strike; she did not.
II.

ARGUMENTS

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A. Lipton Did Not Expressly Aim Her Alleged Communications To California And
Lacks Sufficient Contacts With California To Establish Jurisdiction.

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Plaintiffs Complaint alleges that Lipton made her alleged communications over the

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Internet, via tweets and blog postings. Complaint, 94-113. Those communications could be

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viewed by persons in all fifty states (or all over the world). Plaintiffs have offered no evidence

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that Lipton was specifically directing those communications to California. Instead, Plaintiffs

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merely re-assert their Complaints allegations that Defendants directed their conduct in order to

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cause harm to Plaintiffs interests in San Jose. Plaintiffs Oppostion, p. 4, citing Complaint,

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12.

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Citing Shwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).
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Plaintiffs argument is simply another way of saying jurisdiction is proper in California

because Plaintiffs suffered injury here. However, The Supreme Court has recently held that
Plaintiffs must do more than just that to establish jurisdiction. [M]ere injury to a forum resident
is not a sufficient connection to the forum. Regardless of where a plaintiff lives or works, an
injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact
with the forum State. Walden, supra, 134 S.Ct. at 1125.
What Plaintiffs must show, and what they fail to show, is that Liptons purported contacts
with California are based upon her own affiliation with the state, Walden, supra, 134 S.Ct. at
1123 (emphasis ours). Her activities must be purposely directed at the forum state, Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 774 (1984), and must create a substantial connection
with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985), quoting
McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957). Plaintiffs have not contradicted
Liptons declaration that she has had no personal or business activity of any kind in California.
They have not shown that Liptons alleged communications created any more connection with
California than with any other place on the globe.
If all Plaintiffs can do is allege that their California interests suffered an injury as a
result of Liptons postings, jurisdiction will not lie against her here. [T]he mere fact that
[defendants] conduct affected plaintiffs with connections to the forum State does not suffice to
authorize jurisdiction. Walden, supra, 134 S.Ct. at 1127. In Walden, the Supreme Court took
pains to emphasize the necessary contacts to establish jurisdiction and conduct that connects
[defendant] to the forum in a meaningful way. Id., at 1125. As an example, the Court noted the
defendants ample contacts and forum focused story at issue in Calder v. Jones, 465 U.S.
783 (1984). We examined [in Calder] the various contacts the defendants had created with
California (and not just with the plaintiff) by writing the allegedly libelous story. Id., at 1123
(emphasis ours). See also Keeton v. Hustler Magazine, 465 U.S. 770, 781 (1984) (defendant
publishers continuous and deliberate exploitation of the forum state). Compare in this case
Liptons connections with California outside of the Plaintiffs: there are none.

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The Walden Court concluded with practically a command instruction to the courts
handling interstate intentional tort cases:

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The proper focus of the minimum contacts inquiry in intentional torts cases is the
relationship among the defendant, the forum, and the litigation. And it is the defendant,
not the plaintiff or third parties, who must create contacts with the forum state[T]he
mere fact that [defendants] conduct affected plaintiffs with connections to the forum
State does not suffice to authorize jurisdiction.
Walden, supra, 134 S.Ct. 1115, 1127 (citations omitted).
Plaintiffs have not shown that Lipton had any connection with California, let alone a
substantial or meaningful one, apart from themselves. They have not shown that she
purposely established the minimum contacts necessary to satisfy the Due Process Clause. As a
result, this Court cannot properly assert jurisdiction over her.
B. It Is Unfair And Unreasonable To Assert Jurisdiction Over Lipton.
Plaintiffs sole argument for the reasonableness of this forum is that it serves Plaintiffs
interests to litigate against Defendants in one forum. But if the Supreme Court has taught
anything on this subject, it is that the proper jurisdictional inquiry protects the liberty of the
nonresident defendant, not the interests of the plaintiff. Walden, supra, 134 S.Ct. 1115, fn.9.
Defendant Lipton obviously would be vastly disserved by being haled into a court thousands of
miles away from her New York home, especially when she had no meaningful relationship with
California other (allegedly) than the Plaintiffs.
Plaintiffs lament that they might be forced to file in different states is perhaps the price
paid to protect defendants liberty interests under the Due Process Clause. It is a price worth
paying. Due process in this context requires fairness and reasonableness weighed with respect to
the defendant. Due process limits on the States adjudicative authority principally protect the
liberty of the non-resident defendant not the convenience of the plaintiff or third parties.
Walden, supra, 134 S.Ct. 1115, 1122, citing World Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 291-292 (1980).
We also point out that Plaintiffs are operating a nation-wide, in fact world-wide, business
over the Internet. Their websites are accessible in New York as well as anywhere, and they
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likely do business in New York. It should not be too much to expect them to be ready and able
to protect their Internet business against alleged New York tortfeasors by filing in New York.

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C. By Filing A Special Motion To Strike, Lipton Has Not Consented To This

Courts Jurisdiction.

Plaintiffs are simply incorrect in asserting that California law, specifically Cal.

Code.Civ.Procedure 1014, establishes that Defendant Lipton made a general appearance in this

case by filing a special motion to strike pursuant to Cal.Code Civ. Procedure 416.25.

Fed.R.Civ.P. 12(b) expressly states that [n]o defense or objection is waived by being

joined with one or more other defenses or objections in a responsive pleading or

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motion. Under this Rule, a defendant may raise objections to personal jurisdiction along with

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any other defenses without being deemed to have waived the jurisdictional objection. In this

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case, Defendant Lipton filed a motion to dismiss for lack of personal jurisdiction under

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Fed.R.Civ.P. 12(b)(2) concurrently with her special motion to strike under Californias anti-

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SLAPP statute, Cal. Code Civ.Procedure 416.25.

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Under California, as well as federal, law, Lipton has not waived her jurisdictional

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objections by filing concurrent motions. Cal.Code Civ.Procedure 416.10 governs the filing of

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motions to quash service for lack of personal jurisdiction, Californias equivalent to a motion to

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dismiss under Fed.R.Civ.P 12(b)(2). Section 416.10 (e) (enacted in 2002) expressly provides:

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(e) A defendant or cross-defendant may make a motion under this section

and simultaneously answer, demur, or move to strike the complaint or
cross-complaint.
(1) Notwithstanding Section 1014, no act by a party who makes a
motion under this section, including filing an answer, demurrer, or motion
to strike constitutes an appearance, unless the court denies the motion
made under this section. If the court denies the motion made under this
section, the defendant or cross-defendant is not deemed to have generally
appeared until entry of the order denying the motion.
(2) If the motion made under this section is denied and the
defendant or cross-defendant petitions for a writ of mandate pursuant to
subdivision (c), the defendant or cross-defendant is not deemed to have
generally appeared until the proceedings on the writ petition have finally
concluded.
(3) Failure to make a motion under this section at the time of filing
a demurrer or motion to strike constitutes a waiver of the issues of lack of
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personal jurisdiction, inadequacy of process, inadequacy of service of

process, inconvenient forum, and delay in prosecution.

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Cal.Code.Civ.Procedure 416.10(e) (emphasis ours).

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Accordingly, Plaintiffs reliance on Code.Civ.Proc. 1014 for the proposition that a

defendant appears in an action when [it] files a motion to strike is misplaced. Code.Civ.Proc.
416.10(e) expressly provides that [n]otwithstanding Section 1014, no act by a party who
makes a motion [to quash service] under this section, including filing [a] motion to strike
constitutes an appearance. . . . (emphasis ours). Plaintiffs cite the California decision in Roy v.
Superior C, Eourt of the County of San Bernadino, 127 Cal.App.4th 337 (2005), but that decision
made crystal clear that [s]ubdivision (e)1 of secition 418.10 protects a defendant who moves to
quash by providing that no act by that party shall constitute a general appearance. Nothing
could be clearer: a defendant may move to quash coupled with any other action without been
deemed to have submitted to the courts jurisdiction. Id., at 341.

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Since Lipton filed a motion to dismiss for lack of jurisdiction concurrently with her
special motion to strike, she has not made an appearance in this Court under either California
or federal law and has not conceded the Courts jurisdiction in any way.
III.

CONCLUSION
Based on the foregoing law and argument, the Court should grant Liptons Motion to

Dismiss without leave to amend.

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Respectfully submitted,

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DATED.

August 11, 2014

BRAUNSTEIN & BRAUNSTEIN, P.C.

By:

/s/ Clark Anthony Braunstein .

Clark Anthony Braunstein

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LAW OFFICE OF ROBERT S. GIOLTIO

By:

/s/ Robert S. Giolito

Robert S. Giolito

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Attorneys for Defendant Lane Lipton

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CERTIFICATE OF SERVICE
I hereby certify that, on August 11, 2014, I caused a true and correct copy of the
documents listed below to be served by electronic transfer to the CM/ECF System in
accordance with the Federal Rules of Civil Procedure 5(d)(3), Local Rule 5-1, and the Northern
Districts General Order governing electronic filing by uploading via electronic transfer a true
and correct copy scanned into an electronic file in Adobe pdf format to the United States
District Court Northern District of California Case Management and Electronic Case Filing
(CM/ECF) system on this date. It is my understanding that by transmitting these documents to
the CM/ECF system, they will be served on all parties of record listed below according to the
preferences chosen by those parties within the CM/ECF system.
1. Defendant Lane Liptons Defendant Lane Liptons Reply in Support of Her Special
Motion To Strike Pursuant To California Code Of Civil Procedure Section 425.16

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2. Defendant Lane Liptons Evidentiary Objections to Plaintiffs Evidence in Opposition to

Her Special Motion To Strike Pursuant To California Code Of Civil Procedure Section 425.16
3. Defendant Lane Liptons Defendant Lane Liptons Reply in Support of Her Motion to
Dismiss the Complaint.
4. Declaration Of Thomas Retzlaff

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LAW OFFICES OF JAY LEIDERMAN

Jason Scott Leiderman, Esq.
5740 Ralston Street Ste 300
Ventura, CA 93003
Email: Jay@Criminal-Lawyer.me
Thomas Retzlaff
PO Box 46424
Phoenix, AZ 85063
Email: retzlaff@texas.net

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/s/ Clark Anthony Braunstein

Clark Anthony Braunstein

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