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Posted by Just Looking on October 2, 2007, 5:37 pm
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cares for you in any way, positively or negatively. This is just how he
makes a living. He thinks of people like you more akin to the way you think
of an alarm panel. You know how to turn the alarm on, turn the alarm off,
and under certain conditions make the alarm squawk, all with little emotion.
He does the same thing with people. Despite your feelings that he is a poor
lawyer, he has just shown how good he is by pushing all your buttons, and
you are the one left squawking. If you truly want to defeat him simply make
certain that nothing you do becomes a financial resource for him. It's
really just that simple. When the opportunity for lawyers to make money
disappears, the lawyers disappear right along with it. Ask any lawyer what
bothers him the most and not getting paid is at the top of the list, and in
every space on the list that follows.
Now if you want to win him over then use his own pleadings against him,
since he has already made the legal claim that you are an expert at
reprogramming Brinks' gear. Become an expert witness for Brinks and help him
ferret out all the dealers that are actually flipping accounts using Brinks'
gear. He'll make so much money (along with you) he'll even buy you dinner
after that I bet. And that all will be on Brinks' tab of course. If you want
you could take all your earnings, donate them to the RNC, and get a spot for
him to go on a special hunting trip in Texas, with Dick Cheney.
> Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 1 of 11
> IN THE UNITED STATES DISTRICT COURT
> NORTHERN DISTRICT OF TEXAS
> DALLAS DIVISION
> Brink's Home Security, Inc.,
> Plaintiff,
> Case No.: 3: 07 CV 0437-B
> v.
> Jim Rojas,
> Defendant.
> BRINK'S MEMORANDUM REGARDING
> PERSONAL JURISDICTION OVER DEFENDANT JIM ROJAS
> This involves intentionally tortious acts committed by Defendant Jim
> Rojas ("Rojas")
> through which Rojas knowingly harmed Brink's Home Security, Inc.
> ("Brink's"), whose principal
> place of business and property are located in Irving, Texas. By virtue
> of his many intentional
> activities targeted to Brink's and its property, Rojas should have
> reasonably anticipated being
> haled into court in Texas, and accordingly personal jurisdiction exists
> here.
> Factual Background
> Brink's is a leader in the industry of providing alarm systems and
> security monitoring to
> homeowners. Brink's principal place of business is located in Irving,
> Texas. In providing its
> security systems and services, Brink's uses valuable intellectual
> property, including patented
> technology and copyrighted software. Brink's technicians use
> installation and programming
> manuals containing trade secrets and a proprietary "programmer" to
> activate security systems,
> create settings, and protect these settings through lockout codes.
> Brink's does not provide these
> manuals or its programmers to anyone outside of Brink's. Additionally,
> Brink's does not sell its
> alarm equipment to its customers but instead requires customers to sigh
> a "Protective Service
> Agreement ("PSA") which provides that Brink's will own the equipment
> installed in the
> 4593685
> Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 2 of 11
> customer's house and prohibits a customer from removing, selling, or
> altering any of the
> equipment. See Exhibit A (PSA).
> Rojas operates the Internet website www.tech-man.com (the "Tech-Man
> Website"),
> where he offers for sale Brink's equipment, offers to rent Brink's
> programmers, offers to provide
> the service of circumventing the lockout codes protecting the settings
> of Brink's control panels,
> and offers to buy Brink's equipment and programmers. See Complaint ¶J
> 17-23, Exs. C-F.
> Six months before this suit was filed, Brink's notified Rojas of its
> claims. See Exhibit B
> (September 6, 2006 Brink's letter). This letter laid out Plaintiff's
> concerns and claims, cited legal
> authorities, and provided a sample PSA. Id. Within two hours of
> receiving Brink's letter, Rojas
> responded by email, refusing to comply, threatening Brink's, and making
> unsupported legal
> arguments. See Exhibit C hereto (September 6, 2006 email from Rojas).
> In his e-mail response, Rojas expressed familiarity with Brink's and its
> services,
> products, contracts, and intellectual property claims. He expressed
> specific familiarity with
> Brink's website, and claimed essentially that he had the right to make
> commercial use of
> anything that Brink's itself posted on its website (a proposition
> Brink's believes to be contrary to
> copyright law). Id. ¶ 1. He asserted, contrary to Brink's letter and its
> standard PSA Agreement,
> that Brink's "chooses to abandon" security systems for which Brink's
> does not continue to
> provide monitoring services—a factual assertion that could only be made
> based on familiarity
> with Brink's business and its former customer relationships all over the
> country. Id. ¶ 2. He
> stated that he regularly seeks out and purchases Brink's programmers (a
> proprietary device), and
> that he also solicits and receives Brink's equipment, on the order of
> "maybe 2 boxes [that]
> contain a great deal of Brinks equipment" per week. Id. ¶ 3 and 7. He
> stated that he regularly
> "reprogram[s]" Brink's control boards, despite the anti-circumvention
> technology contained
> therein which Brink's believes is protected by 17 USC § 1201, and he
> asserted "no obligation to
> follow your client's contract limitations," which his message also
> expressed familiarity with. Id.
> 4593685 - 2 -
> Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 3 of 11
> ¶ 4. He also expressed familiarity with where and how Brink's has
> installed new security
> systems. Id. ¶ 5. Finally, he expressed familiarity with unauthorized
> use of Brink's systems by
> "many dealers in the South, like in Texas, Georgia, South Carolina,
> Tennessee, & Alabama."
> Id. ¶ 8.
> Brink's responded with a second letter, responding to Rojas'
> contentions. See Exhibit D
> (October 12, 2006 Brink's letter). This letter gave Rojas clear notice
> of Brink's ownership of all
> of its programmers and the great majority of its installed equipment. It
> also provided Rojas with
> more specific legal authorities and explanations as to the copyright
> anti-circumvention claim,
> trade secret misappropriation claims, and patent infringement claim
> including providing a copy
> of the Brink's U.S. Patent No. 5,805,064 (the "Brink's '064 Patent").
> Rojas' responded quickly
> again, a mere half hour later, in a short email defiantly dismissing
> Brink's claims. Exhibit E
> (October 12, 2006 Rojas email). In spite of Brink's notices, Rojas
> knowingly continued his
> tortious activities of offering his services (such as reprogramming in
> violation of Brink's patent,
> trade secret and copyright anti-circumvention rights) and Brink's
> products (including converted
> products such as Brink's proprietary programmers which are tightly
> guarded and never publicly
> released by Brink's) through his website.
> Rojas's responses to Brink's letters show that he has long conducted
> significant business
> activities knowingly making use of Brink's physical, contractual and
> intellectual property.
> Argument
> I. THIS COURT HAS SPECIFIC JURISDICTION OVER ROJAS BECAUSE ROJAS
> PURPOSELY DIRECTED INTENTIONAL TORTIOUS CONDUCT TOWARD
> BRINK'S, KNOWING THAT BRINK'S WAS LOCATED IN TEXAS AND SUFFERED
> THE EFFECTS OF THIS CONDUCT IN TEXAS.
> Specific personal jurisdiction may be based on intentional tortious
> conduct that is
> purposefully directed toward the forum, knowing that the injury would be
> felt in that forum.
> Calder v. Jones, 465 U.S. 783 (1984). In Calder, the plaintiff alleged
> she had been libeled in an
> 4593685 - 3 -
> Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 4 of 11
> article published in a national magazine with a large circulation in the
> forum state. Id. at 784.
> The plaintiff filed suit against two nonresidents who wrote and edited
> the article. Id. at 784-
> 786. In finding personal jurisdiction, the Supreme Court noted that
> defendants' "intentional,
> and allegedly tortious, actions were expressly aimed" at the forum state
> and defendants "knew
> that the brunt of that injury would be felt by [plaintiff] in the State
> in which she lives and
> works." Id. at 789-90. "Under the circumstances, [defendants] must
> 'reasonably anticipate
> being haled into court there." Id. at 790 (citing World-Wide Volkswagen
> Corp. v. Woodson, 444
> U.S. 286, 297 (1980)). Under Calder, jurisdiction is proper here.
> A. Rojas' Significant Regular Offering of His Circumvention and
> Lock-Breaking
> Services And Brink's Converted or Contractually Protected Products
> Constitute Intentionally Tortious Actions Purposely Directed at Brink's.
> The Complaint alleges that Defendant Rojas has: (1) converted Brink's
> equipment and
> programmers, (2) misappropnated Brink's trade secrets by using or
> disclosing infonnation in
> Brink's manuals, (3) tortiously interfered with Brink's contracts (the
> PSAs signed by customers
> including Texas residents), (4) induced and/or contributed to the
> infringement of the Brink's
> '064 Patent by offering to sell Brink's keypads, and (5) offered to
> circumvent a copyright
> protection system (Brink's lockout codes) and trafficked in
> circumvention technology
> (instructions and Brink's programmers). See generally Plaintiff's
> Complaint. All of this tortious
> conduct seriously harms Brink's, in Texas.
> Rojas was aware of Brink's even before Brink's sent its letters. Rojas's
> email response to
> Brink's demand letters expressed familiarity with Brink's website, noted
> that he had been
> purchasing and using Brink's programmers for at least six years and that
> he regularly dealt in
> Brink's equipment (2 boxes each with a "great deal" of Brink's equipment
> each week), and,
> among other things, claimed that he didn't believe Brink's PSA
> agreements were void or
> unenforceable—a determination that could only be made by one very
> knowledgeable concerning
> 4593685 - 4 -
> Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 5 of 11
> Brink's and its many customer and former customer relationships. See Ex.
> C. It is clear from
> this that Rojas had been knowingly directing his business activities to
> Brink's for some time.
> Moreover, at least as of his receipt of the September 6, 2006 letter,
> Rojas had specific
> undeniable notice of Brink's claims and the harm to Brink's from Rojas'
> activities. See Ex. B.
> Thus he was aware by September 6, 2006 not only of Brink's but also its
> physical and
> intellectual property claims and how his actions damaged them.'
> When Brink's further explained its claims and provided a copy of the
> Brink's '064 Patent,
> he immediately expressed defiance: "1 have no further interest in
> hearing what you, or your
> client have to say in regards to the equipment, programmers, or
> programming of abandoned
> Brinks systems. I will continue to buy, sell, or trade Brinks parts,
> programmers & accessories, as
> it becomes available on the internet, or mailed to me." Ex. E (emphasis
> added). In other words,
> he had long been buying, selling and trading Brink's parts, programmers
> and accessories—all
> activities that Brink's believes violate its physical, contractual and
> intellectual property rights—
> and he would continue doing so.
> In light of Rojas' knowledge of Brink's and its claimed rights, and his
> substantial and
> continuing activities based on allegedly illegal use of Brink's
> equipment and intellectual property,
> his actions can only be fairly interpreted as targeted to harm Brink's.
> See, e.g., GPG Prods. Corp.
> v. Pegasus Luggage, Inc., 776 F.2d 1007 (Fed. Cir. 1985) (holding
> defendant's patent
> infringement willful when the defendant was informed of his
> infringement, was given a copy of
> the patent, took no affirmative steps to ascertain whether he infringed,
> and deliberately
> continued infringing).
> 'Even after getting this notice, at this pre-suit stage, Rojas went on
> the offensive. Knowing that Brink's
> installation and programming manuals contained trade secret information,
> he threatened: "We will then
> list the installation & programming manuals we have available as well."
> Ex. C, ¶ 1.
> 4593685 - 5 -
> Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 6 of 11
> B. Rojas Knew That Brink's Would Suffer The Brunt of Harm at Its Principal
> Place of Business In Texas.
> Because damage from intellectual property rights (such as Brink's
> patent) occurs at the
> location of the owner, Rojas must have known that Brink's would suffer
> injuries at its principal
> place of business in Texas. See Store Decor Div. of JAS Int'l, Inc. v.
> Stylex Worldwide Indus.,
> Ltd., 767 F. Supp. 181, 183 (N.D. III. 1991) ("an infringement of a
> plaintiff's intellectual
> property right, which right is by definition intangible, must, by
> definition occur 'where the owner
> suffers the damage', i.e. where the owner is located"). Similarly, in
> its October 12, 2006 letter,
> Brink's requested return of its physical proprietary programmers. Ex. D,
> ¶ 4. By not returning
> these programmers to Brink's headquarters in Texas, Rojas knew he was
> damaging Brink's at its
> principal place of business.
> Rojas knew that Brink's and its intellectual property were located in
> Texas. He
> expressed familiarity with Brink's business, including its website and
> PSAs, even before Brink's
> sent notice of his tortious conduct. See Ex. C. Brink's website lists as
> contact information the
> address of its corporate headquarters in Irving, Texas. Exhibit F.
> Section 11 of the PSA also
> provides Brink's address in Irving, Texas. Ex. A. Furthermore, Brink's
> enjoys a high profile in
> the industry and advertises extensively. Rojas must know that Brink's
> principal place of
> business is in Texas, especially in light of his expressed familiarity
> with "dealers in the South,
> like in Texas." Ex. C, ¶ 8.
> By wrongfully selling Brink's equipment to Texas dealers and customers,
> by using
> converted Brink's programmers and the trade secrets they contain, and/or
> by encouraging Brink's
> customers to violate their PSA agreements with Brink's, Rojas would
> necessarily damage Brink's
> business in Texas. Rojas must have know that such actions would cause
> harm in Texas.2
> 2 Also, Rojas apparently does significant business in Texas. See Ex. C,
> ¶ 8 (expressing familiarity with
> practices of "many dealers in the South, like in Texas, Georgia, South
> Carolina, Tennessee & Alabama").
> 4593685 - 6 -
> Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 7 of 11
> C. Plaintiff Has Met Its Burden of Establishing a Prima Facie Case of
> Specific
> Personal Jurisdiction.
> Under the Supreme Court's Calder "effects" test, specific personal
> jurisdiction over Rojas
> is proper in this case, because Rojas has purposefully directed
> intentionally tortious conduct
> toward Brink's in this forum, knowing that Brink's injury would be felt
> in this forum. Brink's
> claims that its intellectual property and other rights are violated by
> Rojas' Internet offerings
> available to Texas residents, and Brink's suffers harm in Texas from
> Rojas' nationwide tortious
> actions. But for Rojas' conduct directed toward Brink's, the injury to
> Brink's in Texas would not
> have occurred.
> Brink's should not be required to go to Florida to seek relief from
> Rojas when Rojas
> knowingly caused injury in Texas. See Calder, 465 U.S. at 790. And under
> the facts of this
> case, Rojas should have anticipated being haled into court here. See Id.
> In numerous cases, the
> Calder effects test has been applied to find jurisdiction in a forum
> when the defendant
> committed a business tort, including trademark dilution, copyright
> infringement, patent
> infringement, and trade secret misappropriation, and knew that the
> plaintiff was located in that
> forum. See, e.g., Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316 (9th
> Cir. 1998); Illustro Sys.
> Int'l, LLC, 2007 WL 1321825 (N.D. Tex. May 4, 2007) (applying Caider to
> find jurisdiction in
> Texas when defendant allegedly committed copyright infringement and knew
> that plaintiff was a
> Texas entity); Amini Innovation Corp. v. JS Imports Inc., 497 F. Supp.
> 2d 1093 (C.D. Cal. 2007)
> (finding jurisdiction under Calder when defendant allegedly willfully
> infringed plaintiff's
> copyrights and design patents and knew that plaintiff was located in the
> forum); Precision Craft
> Log Structures, Inc. v. Cabin Kit Co., 2006 WL 538819 (D. Idaho March 3,
> 2006) (finding
> jurisdiction when the defendant allegedly committed copyright
> infringement and knew the
> plaintiff was located in the forum); 3D0 Co. v. Poptop Software, Inc.,
> 1998 U.S. Dist. LEXIS
> 21281 (N.D. Cal. Oct. 27, 1998) (finding jurisdiction when defendant
> allegedly committed trade
> 4593685 - 7 -
> Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 8 of 11
> secret misappropriation and should have known that their actions would
> likely cause harm in
> the forum).
> Rojas' activities are similar to those of the defendant in Panavision.
> In Panavision, the
> court found jurisdiction proper under Colder when the defendant knew
> about plaintiff
> Panavision's trademarks, purposely registered domain names using those
> trademarks, and
> attempted to extort money from Panavision for use of the domain names.
> Panavision, 141 F.3d
> at 1319, 132 1-22. In finding jurisdiction, the court noted that
> [Defendant] engaged in a scheme to register Panavision's trademarks as his
> domain names for the purpose of extorting money from Panavision. His
> conduct,
> as he knew it likely would, had the effect of injuring Panavision in
> California
> where Panavision has its principal place of business and where the movie
and
> television industry is centered.
> Id. at 1322.
> Like Toeppen, Rojas has similarly engaged in activities that he knew
> would damage an
> intellectual property owner located elsewhere. Also like Toeppen, he
> made threats to discourage
> Brink's from enforcing its rights. Before this case was filed, in
> response to Brink's first letter
> notifying Rojas of its claims, Rojas threatened retaliation if Brink's
> continued to pursue this
> matter, stating, "We will then list the installation & programming
> manuals we have available as
> well." Ex. C. And again after Brink's filed its lawsuit, Rojas stated:
> Since your client decided not to drop the case, I am going to publish this
> information and make it available to any alarm dealer who wants it for
> free. I will
> also provide step by step instructions on how to change all the eprom
> data to
> include the dealer's own phone number, account number, report codes, zone
> definitions, and how to alter the eprom to make the panel a local system.
> Brink's Motion for Temporary Restraining Order, Docket #15, Exhibit A,
> p. i0. Rojas has
> made other threats directed to Brink's as well, including one to buy and
> distribute counterfeit
> Rojas does not appear to have given up on threats, even despite this
> Court's injunction. Three days after
> this Court's July 10, 2007 Temporary Restraining Order issued, he sent
> an email, apparently renewing his
> threat to post Brmk's trade secrets on the Internet: "All I can do is
> just wait for them to get their
> judgernent. That's when I will crack my knuckles, click send, and make
> good on my promises..." Brink's
> Response to Defendant's Motion to Dismiss, Docket #23, Exhibit C.
> 4593685 - 8 -
> Case 3:07-cv-00437 Document 31 FHed 10/02/2007 Page 9 of 11
> versions of the Brink's proprietary programmer. See Exhibit G. In short,
> Rojas has directed
> more activities and threats against Brink's than Toeppen directed
> against Panavision, so his
> activities clearly support jurisdiction under the Calder test.
> If the Court feels that Gadder is not sufficient basis for jurisdiction
> under the known facts
> set forth above, Brink's requests that it be allowed discovery to
> determine the extent of Rojas'
> business in Texas.4 Rojas has indicated he does business in Texas. See
> Ex. C (stating his
> familiarity with dealers in Texas). If discovery confirms that Rojas has
> provided significant
> products or services to Texas residents, then this fact in combination
> with offering his products
> and services through his interactive website available to Texas
> residents would also support
> specific personal jurisdiction. Zippo Mfg. Go. v. Zippo Dot Corn, Inc.,
> 952 F. Supp. 1119 (W.D.
> Penn. 1997) (finding personal jurisdiction proper when defendant had an
> interactive website and
> conducted electronic commerce with residents of the forum).
> II. THE EXERCISE OF PERSONAL JURISDICTION OVER ROJAS COMPORTS WITH
> TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE
> When minimum contacts are established, the defendant bears the burden to
> make a
> compelling case that assertion of jurisdiction is unfair and
> unreasonable. Cent. Freight, 322 F.3d
> at 384 (court to consider (1) the burden on the nonresident defendant
> having to defend itself in
> the forum; (2) the interests of the forum state in the case; (3) the
> plaintiff's interest in obtaining
> convenient and effective relief; (4) the interstate judicial system's
> interest in the most efficient
> resolution of controversies; and (5) the shared interests of the states
> in furthering fundamental
> social policies.).
> A plaintiff bears the burden of proof for showing personal jurisdiction
> and when an evidentiary hearing is
> not held, as in this case, the plaintiff is only required to present a
> prima facie case. Cent. Freight Lines,
> Inc. v. APA Transport Corp., 322 F.3d 376, 380 (5th Cir. 2003). Any
> uncontroverted allegations in the
> complaint are taken as true and any confficts between facts submitted in
> affidavits are resolved in favor of
> the plaintiff. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990).
> Because Brink's has not had the
> opportunity to take discovery due to Rojas' default, if the Court
> believes jurisdiction is unclear, Brink's
> requests the opportunity to take jurisdictional discovery.
> 4593685 - 9 -
> Case 3:07-cv-00437 Document 31 Filed 10/02/2007 Page 10 of II
> There is no overwhelming burden in requiring Rojas to defend his actions
> concerning
> Brink's in this court. Brink's has strong interest in resolving the
> dispute in Texas because Rojas'
> tortious acts injured it here. See Double G Energy, Inc. v. AT Gas
> Gathering, Inc., No.
> 3:05CV0749-P, 2005 WL 1837953 at *6 (N.D. Tex. July 28, 2005). Texas has
> an interest in
> this case because it involves a Texas-based corporation that has been
> injured. Id. Texas also has
> an interest because this case involves the application of Texas common
> and statutory laws. In
> the Internet era, when a single person may use the tools of the Internet
> to carry out and support
> wide-ranging business activities (such as, for example, solicitation,
> purchase and receipt of
> Brink's owned equipment; sale and rental of Brink's-owned equipment;
> lock- and code-breaking
> services performed for dealers and consumers; and distribution of
> copyrighted manuals), there is
> a strong interest in asserting jurisdiction over the remote perpetrator
> of such actions.
> The judicial system's interest in having this suit resolved efficiently
> also weighs in favor
> of Texas. A Texas court will more efficiently apply Texas law; multiple
> Brink's witnesses are
> located here and only one apparent witness (Rojas) is a nonresident; and
> Brink's is likely to have
> numerous documents and physical evidence at its principal place of
> business here. While Rojas
> might be somewhat inconvenienced by defending this suit in Texas from
> Florida, this
> inconvenience is slight in light of the ease of airline travel and
> electronic filing. (Any depositions
> of Rojas, of course, will be taken in his home area.) Further, "once
> minimum contacts are
> established, the interests of the forum and the plaintiff justify even
> large burdens on the
> defendant." Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir.
> 1999). Rojas cannot
> make a compelling case that jurisdiction in this case would not be fair
> and reasonable.
> Conclusion
> For the reasons set forth above, Brink's requests that the Court find
> that it has personal
> jurisdiction over Rojas, and set a hearing on Plaintiff's Motion for
> Entry of Default Judgment.
> 4593685 - 10 -
> Case 3:07-cv-00437 Document 31 Fi'ed 10/02/2007 Page 11 of 11
> Respectfully submitted,
> By: Is Mark SabJeipç
> Mark Sableman
> Dean L. Franklin
> Timothy D. Krieger
> THOMPSON COBURN LLP
> One US Bank Plaza
> St. Louis, MO 63101
> (314) 552-6000
> (314) 552-7000 (fax)
> and
> Christina I. Sookdeo
> Texas Bar No. 24028001
> Brink's Home Security, Inc.
> 8880 Esters Boulevard
> Irving, TX 75063
> (972) 871-3503
> (972) 871-3366 (fax)
> Attorneys for Plaintiff
> Brink's Home Security, Inc.
> Certificate of Service
> I hereby certify that this document will be served upon Defendant Jim
> Rojas by PDF
> email (jrojas@tech-man.com) on October 2, 2007.
> Is! Mark Sableman
> 4593685 | 
