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Mischief Kids v. Ebay Complaint PDF
Mischief Kids v. Ebay Complaint PDF
513691/2015
Index No.
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MISCHIEF KIDS, LLC., JANET RUSH
SUMMONS AND
COMPLAINT
Plaintiffs,
-againstEBAY, INC.,
Defendant,
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Plaintiff address:
70 Oceana Dr W PH2D
Brooklyn, NY 11235
The basis for venue:
Plaintiff's Business
Residence
Defendants' Addresses:
2145 Hamilton Ave.,
San Jose, CA 95125
A. Palmieri, Esc.
orney for Plaintiff
50 Mineola Blvd.
Mineola, NY 11501
(516) 248-9595
Please Note:
(a) If this summons is served by its delivery to you PERSONALLY within the Cow1ty of Kings, you must
appear and answer this complaint within twenty (20) days after such service; or (b) If this summons is
served by delivery to any person other than you personally, or is served outside the County of Kings, or
by publication, or by any means other than personal delivery to you within Kings County, are allowed
thirty (30) days after proof of service thereof is filed with the clerk of this Court within which you must
appear and answer.
Index#
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MISCHIEF KIDS, LLC., JANET RUSH,
Plaintiffs,
-againstVERIFIED COMPLAINT
EBAY, INC.
Defendant,
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Plaintiffs, Mischief Kids, LLC and Janet Rush, by their attorney, Palmieri, Castiglione &
Nightingale, PC, complaining of the Defendant respectfully show to the Court and allege:
I.
PlaintitT, Janet Rush, is the Principal ofMischiefKids, LLC, an online merchant company
Plaintiff, Mischief Kids, LLC., is a limited liability company duly organized and existing
under and by the virtues of the laws of the state of New York.
3.
Upon information and belief, at all times herein, Defendant EBA Y, INC. (hereinafter,
"eBay"), is a foreign business corporation with its principle place of business located at 2145 Hamilton
Ave., San Jose, CA 95125.
4.
Upon information and belief, at all times herein, the defendant was and still is a foreign
Upon information and belief, at all times herein, the defendant was and still is a foreign
6.
eBay is a virtual Internet marketplace on which members can sell goods and services in an
auction-style or fixed-price format. It is by far the largest site of its kind on the Internet, with more than
Each product for sale on eBay has its own web page, called a "listing" or "auction," which
describes the product and allows potential purchasers to bid on or purchase the product.
8.
Each listing has both a brief subject line, called the "title" of the listing, and a longer
description.
9.
By typing in search terms, shoppers on eBay's website can search the title and description
In order to protect itself from liability for its users' violations of intellectual property
rights, and to comply with the Digital Millennium Copyright Act (hereinafter, "DMCA"), eBay created
the "Verified Rights Owner" program (herein after, "VeRO".)
11.
An owner of intellectual property who registers for the VeRO program can submit a notice
of claimed infringement to eBay stating that a particular auction violates its intellectual property rights.
12.
In filling out the notice of claimed infringement, the VeRO member must sign a statement,
under penalty of perjury, that it has a good-faith belief that the auction infringes its intellectual property
rights or the intellectual property rights of someone it represents.
13.
Once they make a complaint, eBay preemptively takes down the accused's account and is
Defendants subsequently failed to follow their own procedure when they took down
PlaintiWs site multiple times, with no reimbursements. This cost the Plaintiff roughly $250,000.00 in
sales.
15.
It is normal practice for the VeRO program to take down a user's account without a chance
16.
However, the accused are typically afforded the opportunity to confront the party making
the claim in order to sort the issue out. Once it is sorted out, the suspended account is restored.
17.
To date, Defendant has not afforded Plaintiff the opportunity to confront their accusers as
19.
The first takedown lasted for 7 days on October 161h, 2014, then for 30 days on October
241\ 2014. Finally, on November 25 1\ 2014, Plaintiffs account was taken down for one year.
20.
These negligent acts caused Plaintiff to lose the opportunity to sell a significant number of
Plaintiff duly and diligently performed all conditions to sell as a valid merchant on
Plaintiff was unable to sell any of her products nor has she been able to confront her
accusers during the holiday season in 2014, nor has she been afforded the opportunity to do so to date.
Due to this gross negligence on the part of eBay, Plaintifflost out on the ability to hold auctions on their
products and was irreparably harmed.
23.
Due to the negligence on the part of Defendant, Plaintiff was damaged in the amount of
$250,000.00.
AS AND FOR A SECOND CAUSE OF ACTION
24.
Plaintiff repeats, reiterates, and realleges each and every allegation set forth in paragraphs
"l" through "22" as if each were more fully set forth herein.
25.
same day, eBay sent an email to Plaintiffs customers that Plaintiff is not a trustworthy seller.
26.
This email is untrue as Plaintiffs had all the proper documentation proving that she is not a
counterfeit seller.
26.
Due to eBay's actions, Plaintiffs has been defamed and their reputation as a company and
Due to the damages suffered by eBay's actions, Plaintiff demands a sum of money in the
amount of$500,000.00 due to the libel per se committed against Plaintiff by eBay and in addition, seek
punitive damages.
AS AND FOR A THIRD CAUSE OF ACTION
28.
Plaintiff repeats, reiterates, and realleges each and every allegation set fmih in
paragraphs "1" through "26" as if each were more fully set forth herein.
29.
By not granting Plaintiff the information regarding who exactly was filing VeRO
claims against the company, eBay failed to follow the rules and procedures of their own End User
License Agreement and have thus availed themselves to this action.
30.
By not following their own procedures, Defendants did not allow Plaintiff due process
Due to these actions, Plaintiffs account was erroneously suspended and Plaintiff was
WHEREFORE, Plaintiff demands judgment against each Defendant for payment in the amount
of $1,000,0000.00, with interest thereon on the first, second, and third causes of action herein, and for
reasonable attorney's fees (to be detennined by this Court); together with all costs and disbursements
incurred in this action.
0 A. PALMIE , ESQ.
torney for Plaintiff
250 Mineola Blvd.
Mineola, NY 11501
(516) 248-9595
VERIFICATION
STATE OF NEW YORK)
) ss:
COUNTY OF NASSAU)
The undersigned, an attorney admitted to practice in the Comis of New York State, shows:
Deponent is Vito A. Palmieri, the attorney of record for the Plaintiff, MIS CHElF KIDS, INC., in
the within action; deponent has read the foregoing SUMMONS AND VERIFIED COMPLAINT and
knows the contents thereof; the same is true to deponent's own knowledge, except as to the matters
therein stated to be alleged on information and belief; and as to those matters deponent believes it to be
true. This verification is made by deponent and not by said Plaintiff, as Plaintiff does not reside in the
County wherein your deponent's oflice is located.
The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as
follows: Investigations made on behalf of said PlaintitT.
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MISCHIEF KIDS, LLC., JANET RUSH,
Plaintiff,
-againstEBAY, INC.
Defendant,
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To:
Attorney( s) for
is hereby admitted.
Dated:
Attorneys for