Brinks Home Security v Jim Rojas
Jim Rojas
online alarm business located in Tampa, Florida.
Read all about it.
http://dockets.justia.com/docket/court-txndce/case_no-3:2007cv00437/case_id-165443/
The court documents are all available for public viewing:
http://www.tech-man.com/brinks.asp
Jim Rojas
Jim Rojas
financially threatened by Jim Rojas, a small online alarm business
located in Tampa, Florida.
Read all about it.
http://dockets.justia.com/docket/court-txndce/case_no-3:2007cv00437/case_id-165443/
The court documents are all available for public viewing:
http://www.tech-man.com/brinks.asp
Jim Rojas
Please post this message to any newsgroup, forum, or message board that
would find this interesting reading. HTML postings of all public court
documents are encouraged for easier reading.
Crash Gordon
Also from reading their motion dated 5/31 they are monitoring this ng AND
are quoting what people here have said.
I'm no attorney; but I'd keep my trap shut if I were you guys.
Seriously.
Crash Gordon
Nomen Nescio
you don't have one, Brink's is going to chew you up, spit you out, and
charge you for doing it.
The motion for default judgment is asking for damages of $2,561,100.
They'll probably get less than that, but it's still going to hurt you
badly. Since you live in Florida, you get to keep your house under the
O.J. principle (he owes the Goldmans $30 million, but they can't take his
house away). Otherwise, you may find yourself declaring bankruptcy.
The lawyers claim they've already spent $35,000 going after you, and they
want to send you the bill. You are not going to win this battle in the
court of public opinion, and you are not going to beat a team of lawyers by
yourself in federal court.
You are going to get crushed like a bug unless your lawyer can pull a
rabbit out of the hat by Monday morning. Do not ignore this, like you
ignored the original lawsuit. It isn't going to go away. It's only going
to get worse, unless you act right now.
- badenov
Frank Olson
Jim: What's the log-in ID and password? :-)
These guys are pure nutballs. Unfortunately they also have access to
practically limitless funds. Get yourself a good lawyer. Set up a
Paypal account (the official Jim
Rowhouse-because-needs-the-space-for-all-those-used-Brinks-panels legal
defense fund. I'm sure there are more than just a few of us who would
contribute. Good luck and best wishes.
Nick Lawrence
Nick
Roland More
posting here. As a practical matter you might not want to post that
information on this NG for Brinks to read of course. In case you've never
had the misfortune, I can tell you going into Federal Court is no small
thing. Perhaps you have consulted an attorney and are shocked at the amount
of retainer he or she wants for this case. Just guessing I wouldn't be
surprised if an experienced attorney wants up to 25K as a retainer to take
this on. (I don't think there are many attorneys that would want this pro
bono either). $25K is more than most have in their pay pal account I am
sure. (Guess what? Brinks isn't going to lose this by running out of cash).
If not that then what? You are going to pull a rabbit out of your hat? You
can't show up to court in a bunny suit and hope to hop around the issues. I
know several cop buddies that have been cited for contempt of court (and
served processing time) just for being late to court (with good reason). I
don't know what kind of show this judge runs, but it seems you haven't
gotten on her good side just yet. The Federal Courtroom is a very busy
place. The judge isn't going to slow down and take time to listen to a (pro
se) defendant bumble through an argument to make a point for the court to
act on. That is not how it works. From what you posted so far it is like
watching your execution in slow motion. I hope this thing somehow turns
around for you. Good luck.
"Jim Rojas" <jro...@tech-man.com> wrote in message
news:46958a78$0$8006$4c36...@roadrunner.com...
George Siegle
When I show them on sales calls to people who have gotten a quote or talked
to Brinks it put an end to them wanted to deal with Brinks.
End users do not like the idea of having an alarm in their home that if they
sell the home it has no value to the resell of the home if it is not part of
the home and can not be used by the new owner unless they sign a contract
with Brinks.
Thanks Brinks for the help, and good luck Jim.
George Siegle
"Jim Rojas" <jro...@tech-man.com> wrote in message
news:46958a78$0$8006$4c36...@roadrunner.com...
Jim Rojas
that has changed, where information on any topic is readily available
with a mouse click. An informed consumer can be your best customer.
Good luck on your future sales.
Jim Rojas
Crash Gordon
"George Siegle" <gsi...@astroguard.ca> wrote in message
news:MArli.34913$Io4.18804@edtnps89...
Bill
Search for the following words...
how to write press release
Search for the following words...
newspaper addresses
Jim Rojas
other than general email questions. The Instant Unlocker tool would only
be able to remove the lockout code. You would still need an EEPROM
programmer, or the PGM670 or S3121 programmer to make changes to the
panel. That's why using a product like the Panel Saver would make more
sense. Visit their website at http://www.digitaldiverter.com/
Thank you for your ideas though.
Jim Rojas
Hey Jim. I have an idea. Why not contact these Canadian guys and see if
they would be willing to do something with brinks panels? I have read
some of the documents on your website and it does look like the brinks
panels use the same type of chips. If brinks is going after you on a
federal level, the last time i checked, canada is not within that reach.
http://www.unlockservices.com/
http://www3.sympatico.ca/rh.campbell/unlocking_services.htm
Talk to these guys as well. It looks like they can actually make a unit
to accommodate brinks panels easily.
http://www.instantunlocker.com/howitworks.html
Good luck to you
Arnie S.
Robert L Bass
> corporation feels financially threatened by
> Jim Rojas, a small online alarm business
Jim Rojas,
It looks more like this multi-billion dollar corporation
is about to stomp you into the ground. If you fail to
heed the advice you've been given about hiring an
attorney that is what they will do. That would truly
be a shame. You're a decent guy and you don't
deserve what's going to happen to you. They, OTOH,
are an awful bunch of thugs who deserve to be put
out of business. Nevertheless, they are about to
trounce you unless you do the smart thing right
away.
--
Regards,
Robert L Bass
=============================>
Bass Home Electronics
941-925-8650
4883 Fallcrest Circle
Sarasota · Florida · 34233
http://www.bassburglaralarms.com
=============================>
Mark Leuck
"Robert L Bass" <Rober...@verizon.net> wrote in message
news:S_Fli.9130$475.1344@trndny04...
> > Brinks Home Security, a multi billion dollar
> > corporation feels financially threatened by
> > Jim Rojas, a small online alarm business
> > located in Tampa, Florida...
>
> Jim Rojas,
>
> It looks more like this multi-billion dollar corporation
> is about to stomp you into the ground. If you fail to
> heed the advice you've been given about hiring an
> attorney that is what they will do. That would truly
> be a shame. You're a decent guy and you don't
> deserve what's going to happen to you. They, OTOH,
> are an awful bunch of thugs who deserve to be put
> out of business. Nevertheless, they are about to
> trounce you unless you do the smart thing right
> away.
>
> --
>
> Regards,
> Robert L Bass
I'm not sure he needs advice from a convicted felon but what exactly IS the
"smart thing"?
Robert L Bass
There's no point in reiterating it. I and several others have already told him. Unlike most here, I studied law in college. Rojas
is a nice guy and I hate to see him get hurt. He has decided to go bare-knuckles with these guys and they're going to ruin him
financially. Because he lives in Florida Brinks will not get his house. They can and will take every other dime he has though.
That's sad because he's right and they're wrong but, as others have said, the legal system has little to do with right and wrong.
--
Regards,
Robert L Bass
=============================>
Jim Rojas
or flat out refuse to represent me if it involves Brinks Home Security.
I am not going to let these bottom feeders disrupt my life. I already
transferred my millions to the Caman Islands.
Jim Rojas
newb
> I have contact many attorneys. Each one either requires a huge retainer,
how huge?
Jim Rojas
Jim Rojas
Mark Leuck
> > ... what exactly IS the "smart thing"?
>
> There's no point in reiterating it. I and several others have already
told him. Unlike most here, I studied law in college.
it sounds like you have studying law (Which I doubt you did) confused with
getting a felony conviction (which you did do)
They are two different things
Frank Olson
snerk!!
Robert L Bass
Doubt all you like.
Roland More
yellow brick road to the Courthouse, especially the Federal Courthouse.
Unfortunately for me I have gone down that road too many times. I have had
11 lawyers working on cases for me all at one time. You finally realize how
far you gone when lawyers take you into their office and question you about
legal procedures WITHOUT sending you a bill. In other words you have become
a resource for them. I mentioned (guessed) at a $25K retainer in other posts
as a starting point for legal fees. Now you have confirmed that as a valid
number. I know this $25K sounds like a lot of money (and it is) but this is
really chump change for any scrap involving the Federal Court System,
especially against an adversary that has its own internal legal force (more
or less). These guys can make a lot of work (and money for themselves) for
the other side by filing motion after motion. Billing by the hour generates
cash for Brinks' attorneys but will erode your $25K retainer well before
discovery is over, let alone trial. Depending on Brinks' appetite for
escalating this it could be a lot more than $25K before appeals begin. It is
like that old car repair commercial. "You can pay me now or you can pay me
later". You can try an end run and file for Federal Bankruptcy protection
PRIOR to any judgments being entered against you. By going into Bankruptcy
you will receive protection from the court from any litigation efforts of
Brinks against you. In fact if you hire a real bastard bankruptcy attorney
he can actually get Brinks' attorneys tossed into jail themselves when they
continue to hassle you (which they will try to do because that is how they
bill Brinks for their services). If you file Chapter 11 or 13 you could so
foul up Brinks plans for you that they'll want to reach some other
"accommodation" with you and the Bankruptcy Court. Once you have that
"accommodation" in hand you can postpone and eventually dismiss your own
Bankruptcy almost as if it never happened. One needs to be VERY careful in
this strategy since you could go to jail yourself for using the inadvertent
consequences of filing Bankruptcy as a legal defense strategy. However a
pissed off attorney with plenty of years of experience in Bankruptcy (and
plenty of free liquor) can be a gold mine as to how to pursue these guys via
the legal back door for cheap. Brinks knows full well the legal techniques
for derailing their plans for you. Making the right legal moves will signal
to Brinks that you know too, and the party will be over for Brinks. Brinks
attorneys' aren't out to win so much as they're out to bill. When you take
the cash away from an attorney you take everything away. There are two
things that are simply poison for an attorney. One is no cash (that is like
the garlic for a vampire) and the other is they HATE to lose (that is the
stake through the heart for the vampire). Bankruptcy means they can't get
money (because they can't bill for attacking you anymore), and they can't
win (because they can't attack you anymore). It is like removing AC and
battery from an alarm system. They'll move on to figure their next payday
strategy for fleecing their own client (Brinks) with some other trumped up
legal BS. Attorneys are easy to defeat once you figure out the technique for
cutting off funds, or their access to funds, and making victory impossible
to obtain or (worse) even define. They will never stick to any case based on
"principles" (they simply have none), or for being "in it" for the client.
Looking for an attorney that sides with you and takes the case based on its
merits is like looking for a virgin in a whorehouse. Its fruitless of
course, and only an entertaining search only if you like attorneys or
whores, both in the business of screwing people for (and out of) money, and
each using the exact same moral code. You might hear some type of BS "good
guy" rhetoric from time to time from an attorney, but that would really be a
smokescreen for hiding the fact that they have been had (financially) and
the court WON'T let them off the case they accepted. A real attorney would
never dispute what I have said here (mostly because there is no money to be
made by doing so) but also because it is so easy to list names, dates,
times, places, faces, and cases to support what I have said. Think of what
you have to do to win with the resources you have at hand. You'll never win
if you fight on Brinks terms, and on Brinks turf, using only your own
efforts.
"Jim Rojas" <jro...@tech-man.com> wrote in message
news:4698ebf7$0$31225$4c36...@roadrunner.com...
Crash Gordon
"Roland More" <NoSpam...@corridor.net> wrote in message
news:4699958d$0$4661$4c36...@roadrunner.com...
Robert L Bass
rate on anything. Credit card processing companies may refuse to work with your website. Also, bankrupptcy does not protect any
liquid assets or chatel property you may have. In Florida your homestead ("house" for all you Texans and other species of snowbird)
is sacrosanct but almost nothing else is.
Bankruptcy is not a shelter beneath which you can hunker down with your cash and other personal property. Anyone who succeeds
against you in court will have to wait his turn behind other creditors who will get first dibs on your assets. When it's all done
you'll have your home and not mch more. Also, filing for bankruptcy right after a default judgment has been obtained against you
will not sit well with the courts. The federal court can decide that the bankruptcy filing is just a ploy and over ride it.
What Jim Rojas really should do is hire a competent attorney and then follow his advice.
Roland More
Automatic protection from Brinks is included in that realm of protection.
Yes, one court (especially Federal) can protect you from actions from any
other court. In order for Brinks to continue against Jim, Brinks would have
to petition the bankruptcy court for permission. In that bankruptcy court
environment Jim could ramble on about the "facts" he mentioned here, without
the normal legal impediments in play, and Brinks would probably not win such
an effort. Brinks probably wouldn't even file the motion because it would
not be in Texas, but Florida, and they know they would not be granted the
motion with the facts as they are. Brinks attorneys will be in violation of
the law if they filed any more actions against Jim, even if they were not
directly informed of the bankruptcy. Once informed, if Brinks' attorneys
persist they could be cited for contempt and ordered to jail. It would be
so cool to have a Federal Marshall show up to their office and haul them off
to jail. Lawyers know that can be done be they seldom do it to each other.
That is why I suggested hiring a really mean bankruptcy attorney, because
there are a few that will do it. Robert, your admonitions about bankruptcy
and its aftermath are noted, however just like you could file for divorce
and not go through with it and you'd still be married, same thing with
bankruptcy. If you go into bankruptcy, and once Brinks is gone, then come
out again. There are many types of bankruptcy filings. Some types are
literally a shelter from your creditors (and legal adversaries) "beneath
which you can hunker down with your cash and other personal property". That
is the nature of "debtor in possession". In all you years in business you
never received any notice of bankruptcy filings from clients? I have had
plenty. If it is a chapter 7 liquidation that is one thing, and that is what
you seem to be describing. Other bankruptcy filings leave you in charge and
your creditors holding the bag waiting for some partial repayment. In any
case what chances to you give Jim going through this against Brinks pro se?
What do you suspect he'll be left with after Brinks is finished with him
versus a bankruptcy filing? Jim has not seen the need to hire an attorney
and unless you are offering to pay his legal bills, I suspect no one else is
either. Bankruptcy is one simple way he could get Brinks off his ass and not
spend a fortune (I think the filing fee is less than $300) doing it.
http://www.nolo.com/article.cfm/ObjectID/C3912111-4136-471B-AC952D51C612C369/catID/28A8A549-1CB4-4056-996C40E5834F3741/213/161/129/ART/
Bankruptcy court would be far less dangerous a place for Jim to seek pro se
releif than Federal Court. I don't know if Jim even knows there is a dress
code for Federal Court that is strictly enforced by some courts. Just buying
the right suit to appear in Federal Court could could set him back $300.
Chapter 11 is probably the most flexible of all the chapters, and as such,
it is the hardest to generalize about. Its flexibility makes it generally
more expensive to the debtor. However it may be Jim's cheapest way out of
this mess.
"Robert L Bass" <Rober...@verizon.net> wrote in message
news:ufjmi.343$fj5.0@trnddc08...
Frank Olson
You forgot to mention the funny wig. ;-)
Roland More
He already has one I hear that he keeps next to his mini skirt and fish net
stocking for Saturday night outings. I am told all the boys fight over him
when he dresses up.
Doug
Doug
--
"Roland More" <NoSpam...@corridor.net> wrote in message
news:469a5914$0$20606$4c36...@roadrunner.com...
Jim Rojas
Your reply to my motion just proves my point on how pathetic Brink's
position really is...you can quote me on this if you like. You Mr
Sablemann are a waste of human life. You would probably do better
chasing ambulances. Your client is a huge eye sore in the alarm
industry. Your client should just stick to transporting money. Your
client has no idea what real security means. 3 doors and a motion
detector for $99 is not security, it is a false sense of one.
I laugh at you.
Jim Rojas
Jim Rojas
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 RESPONSE TO DEFENDANT’S
MOTION TO DISMISS FOR FORUM NON CONVENIENS
AND MOTION FOR RELIEF OF DEFAULT
Defendant Jim Rojas has failed to establish good cause either for
vacating the default
entered herein on May 31, 2007, or for belatedly transferring this case
to another district. His
pro se status cannot excuse the default in the circumstances here, where
his conduct has been
marked by active defiance of the judicial process, threats to harm
Plaintiff, and strategic
gamesmanship.
I. ROJAS HAS NOT SATISFIED HIS BURDEN OF SHOWING GOOD CAUSE TO
SET ASIDE THE ENTRY OF DEFAULT.
A court may set aside an entry of default only for good cause shown by a
defendant.
Fed. R. Civ. P. 55(c). Courts examine three factors to determine good
cause: “(1) whether the
failure to act was willful; (2) whether setting the default aside would
prejudice the adversary;
and (3) whether a meritorious claim has been presented.” Effjohn Int’l
Cruise Holdings, Inc. v.
A&L Sales, Inc., 346 F.3d 552, 563 (5th Cir. 2003).1 These factors are
not exclusive and
“[o]ther factors may be considered, such as whether the party acted
expeditiously to correct the
default.” Id. A court does not need to consider all of these factors.
CJS Holdings, Inc. v. Wright
1 For the third factor, the Effjohn decision cites to Lacy v. Sitel
Corp., 227 F.3d 290, 292 (5th Cir. 2000),
which clarifies that factor to refer to whether a meritorious defense
has been presented by defendant.
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 1 of 11
4548897 - 2 -
& Lato, Inc., 979 F.2d 60, 64 (5th Cir. 1992). Regarding the willfulness
factor, the inquiry
should be whether the neglect was excusable. Id.
Initially, Rojas’ one-paragraph “Motion for Relief from Default” clearly
fails to meet his
Rule 55(c) burden. His conclusory filing provides no facts, documents or
reasons showing good
cause. Perhaps he feels that his pro se pleading speaks for itself as to
his ignorance of legal
procedures and inability to respond appropriately to legal action. But,
as shown below, his own
actions and words belie this position.
A. Rojas’ Failure To Act Was Willful And Not Excusable Neglect.
Rojas’ failure to answer the Complaint was not inadvertent or
unintentional. It was
based on a deliberate willful decision to defy Brink’s and this Court—a
defiance made crystal
clear in Rojas’ own correspondence.
Plaintiff first contacted Rojas on September 6, 2006, six months before
the suit was
filed, with a detailed cease-and-desist letter that laid out Plaintiff’s
concerns and claims, and
which cited legal authorities and provided a sample of Brink’s contract
with its customers.
Rojas responded belligerently. He expressed disdain for Brink’s
contracts (which provide that
Brink’s owns the security system equipment installed in customers’
homes), and offered his
own, unsupported view of contact law: “Legally after 30 days after
cancellation, the customer
may dispose or do what they want with the system, no matter what your
contract states.”
Complaint, Ex. H, ¶ 2 (emphasis added). Though the Brink’s letter had
informed him that any
Brink’s programmers in his possession were the lost or stolen property
of Brink’s, he indicated
he would ignore Brink’s ownership, and continue to accept and use such
equipment.
Complaint, Ex. H, ¶ 3. Moreover, even at this early 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.” Complaint, Ex. H ¶ 1.
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 2 of 11
4548897 - 3 -
Brink’s responded with a second attempt to resolve this dispute without
litigation.
Brink’s October 12, 2006 letter (Complaint, Ex. I) responded
specifically and in detail to all of
Rojas’ contentions. 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,
and it provided the Brink’s ‘064 Patent and explained that Rojas’ sale
of equipment designed
specifically for that patented process may induce others to infringe
Brink’s patent. The letter
gave Rojas two weeks to respond to Brink’s.
Rojas did not utilize the two weeks to consult an attorney, or even do
his own research
on the authorities supplied by Brink’s. The October 12, 2006 Brink’s
letter went out to Rojas
by email at 1:10 pm Central time (2:10 pm Eastern time). A half hour
later, at 1:44 pm
Central time, the sender received Rojas’ defiant email response
(Complaint, Ex. J):
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 3 of 11
4548897 - 4 -
Rojas’ response was not that of a party that inadvertently misunderstood
the issues, or that
attempted to respond in good faith. It was a response of deliberate
defiance: “I have no further
interest in hearing what you, or your client have to say in regards to
the equipment,
programmers, or programming of abandoned Brink’s systems. I will
continue to buy, sell, or
trade Brinks parts, programmers & accessories, as it becomes available
on the internet, or
mailed to me. You are welcome to try to prevent this, but you and I know
what the chances
are of that happening.” Complaint, Ex. J (emphasis added).
In March 2007, Brink’s filed this action. Rojas was served personally, on
March 28, 2007. See Docket #9. Rojas didn’t answer as required on April
14. His failure to
answer was deliberate. He made no good faith attempt to respond to the
suit. Rather, he
publicly thumbed his nose at Brink’s and the Court, posting the lawsuit
on his website “for
public viewing” as if he wanted to have the world see him bask in the
glory of his defiance of it.
See Motion for Entry of Default Judgment, pp. 2-4 and Ex. A. Emails he
subsequently sent to
Brink’s lawyers and others (quoted in and attached to the Motion for
Entry of Default
Judgment; see pp. 3-8 and Exhibits B-G) confirmed that he was fully
aware of the lawsuit, and
made a deliberate knowing decision to defy it.
Rojas appears to argue in his motion that his neglect is excusable
because he chose not
to hire an attorney. But Rojas has had over ten months to obtain counsel
since he received
Brink’s first cease-and-desist letter. During that time, he received
advice from various sources
that he should hire counsel. Rojas made many postings on
security-related USENET message
boards, letting other posters know about the lawsuit and his responses
to it. A few hours after
Rojas posted the lawsuit to the alt.locksmithing newsgroup, another
poster replied: “You are
going to lose this one……….Brinks has it in the bag. You just can’t steal
and resell what’s not
yours. Proprietary ownership is clear cut and is protected by law.”
Exhibit A, p.2 (April 3-5,
2007 message string on alt.locksmithing newsgroup). When another poster
also immediately
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 4 of 11
4548897 - 5 -
told Rojas, “I should think you would have removed all Brinks stuff
after receiving the first
letter,” and yet another noted, “Every Brinks system has a disclaimer ON
THE BOX which
states the customer does not own the system, Brinks does”, Rojas
responded: “You can’t just
cave in to all their silly demands. … They can huff and puff all they
like.” Ex. B, pp. 4, 5, 6-7
(April 3-4, 2007 message string on alt.security.alarms newsgroup).
Another poster advised
Rojas: “…there may also be merit in sitting down and discussing the
situation and coming up
with a mutually agreeable ‘compromise.’ Your lawyer should tell you
realistically your chances
of winning in your situation.” Id., p. 6. Another poster raised the
issue of a default judgment
to Rojas: “Are you going to let them get a default judgment and then see
what luck they have
collecting?” Id., p. 3. All of these exchanges occurred well before the
April 14, 2007 answer
deadline.
Thus, from the beginning of this lawsuit, Rojas understood its
significance, actively
discussed it with others, and received some advice to obtain legal
counsel, resolve the demands,
and/or avoid a default. With all of this information and understanding,
he made the deliberate
decision not to respond to the lawsuit and to publicly defy it. He
cannot credibly claim
excusable neglect in this situation. Rojas’ willful disregard for the
judicial system, by itself,
should result in denial of his motion. See Dierschke v. O’Cheskey, 975
F.2d 181 (5th Cir.
1992) (concluding “that when the court finds an intentional failure of
responsive pleadings
there need be no other finding”); Lacy v. Sitel Corp., 227 F.3d 290, 292
(5th Cir. 2000) (same);
CJC Holdings, Inc., 979 F.2d at 64, 66 (affirming court’s denial of
motion to set aside default
judgment based on willful failure to answer the complaint); Davis v.
Hutchins, 321 F.3d 641,
646 (7th Cir 2003) ("willfulness is shown in a party's continuing
disregard for the litigation or
for the procedures of the court”; default upheld where defendant
“exhibited a continuing and
willful disregard for this litigation and for the procedures in federal
court”); Hal Commodity
Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1138 (7th Cir. 1987) ("[A]n
appellate court will not
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 5 of 11
4548897 - 6 -
reverse the denial of Rule 60(b) relief when entry of the default
judgment resulted from the
defaulting party's willful refusal to comply with the minimum standards
of conduct expected of
all litigants"). As one district court recently noted, “The boundary of
willfulness lies
somewhere between a case involving a negligent filing error, which is
normally considered an
excusable failure to respond, and a deliberate decision to default,
which is generally not
excusable.” International Painters and Allied Trades Union and Industry
Pension Fund v. H.W.
Ellis Painting Co., 288 F.Supp.2d 22, 26 (D.D.C. 2003). There can be no
doubt that Rojas’
conduct here is far from a “negligent filing error,” and fell on the
willful side of that boundary
line.
Indeed, even without the record of aggressive and deliberate defiance of
the court
proceeding that is present here, courts have held that failure to obtain
counsel does not excuse
a failure to answer. See Interscope Records v. Benavides, 241 F.R.D.
458, 461-62 (W.D. Tex.
2006) (noting that “even pro se litigants must act within the time
provided by statute and
rules” and “While it is regrettable that defendant was unable to find an
attorney to assist her, if
the Court were to excuse her failure to answer on this ground then the
default option would be
an empty threat to any pro se defendant who neglected to file an
answer.”); Todtman,
Nachamie, Spizz & Johns, P.C. v. Ashraf, 241 F.R.D. 451, 454 (S.D.N.Y.
2007) (“pro se status
does not excuse the defendants' complete failure to respond to the
complaint for seven
months”; “a reasonable non-lawyer should have realized that some sort of
response to the
summons and complaint was necessary”); Employee Painters' Trust v. Ethan
Enterprises, Inc.,
480 F.3d 993, 1000 (9th Cir. 2007) (failure to obtain replacement
counsel held not to constitute
excusable neglect).
B. Brink’s Will Be Prejudiced If The Default Is Set Aside.
The circumstances of Rojas’ defiance of this lawsuit have already
prejudiced Brink’s.
Rojas has adopted a deliberate strategy of catch-me-if-you-can (You are
welcome to try to
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 6 of 11
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prevent this, but you and I know what the chances are of that
happening”), using the weapons
of delay, defiance (“They can huff and puff all they like”), and threats
of retaliation (“We will
then list the installation & programming manuals we have available as
well.” Complaint, Ex.
H ¶ 1; “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
. . . I will not stand
idle …” Brink’s Motion for Temporary Restraining Order, Docket #15,
Exhibit A, p. 10). 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 was issued,
he sent a email,
apparently renewing his threat to post Brink’s trade secrets on the
Internet: “All I can do is
just wait for them to get their judgement. That's when I will crack my
knuckles, click send, and
make good on my promises...” Exhibit C (July 13, 2007 Rojas email).
To a degree, Rojas’ tactics have worked. He has delayed the process by
many months
already. He has spent those and other months inviting public criticism
of Brink’s, and
apparently continuing his services and sales that Brink’s believes
infringe its trade secrets and
induce infringement of its patents. He has delayed access to his
documents through discovery,
and given the absence of legal counsel on his side, there is a
heightened risk that probative
records or physical evidence may have been lost or destroyed. Cf.,
Todtman, Nachamie, Spizz
& Johns, P.C. v. Ashraf, 241 F.R.D. 451, 455 (S.D.N.Y. 2007) (“plaintiff
has a legitimate
concern that increased delay will allow defendants to divert funds and
preclude plaintiff from
successfully enforcing a judgment against the defendants in the
future”). He has been able to
make his threats, which are quite serious and credible to Brink’s, as
they would be to any
owner of carefully maintained trade secrets. He has, in short, harmed
Brink’s by his strategic
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 7 of 11
4548897 - 8 -
defiance of the lawsuit to date. Permitting him to vacate the default
and start afresh, despite
the disadvantage to Brink’s of his defiance and delay strategy, would
prejudice Brink’s.
C. Rojas Has Not Presented A Meritorious Defense.
Rojas has failed to demonstrate that he has viable defenses to Brink’s
claims of
conversion, patent infringement, circumvention of technological measures
protecting digital
copyrighted material, trade secret misappropriation, tortious
interference with contract and
trade secret violations. Rojas merely states that he “believe[s] the
Plaintiff is intentionally
misleading the Court with facts it has no real intention of ever
proving.” Def. Motion to
Dismiss for Forum Non Conveniens, Docket # 21. This statement is
unsupported and
contrary to the record, which contains numerous exhibits supporting
Brink’s claims, including
pages from Rojas’ own website and his emails. Rojas’ motion is
insufficient to meet the
default-vacation burden. Sony Corp. v. Elm State Elecs. Inc., 800 F.2d
317, 320 (2d Cir. 1986)
("Although in an answer general denials normally are enough to raise a
meritorious defense, the
moving party on a motion to reopen a default must support its general
denials with some
underlying facts.").
Because Rojas’ failure to answer the Complaint was willful and not due
to excusable
neglect, Brink’s would be prejudiced if relief from default was granted,
and Rojas has not
presented any meritorious defenses, Rojas’ motion for relief from
default should be denied.
II. ROJAS HAS FAILED TO SATISFY HIS BURDEN OF SHOWING WHY THE
VENUE SHOULD BE TRANSFERRED.
Rojas’ unusual “forum non conveniens” motion (“I again request a motion
to dismiss
for forum non conveniens, even though I do not fully understand what
that means”) should be
denied. Venue is proper here, especially in light of Rojas’ sales and
activities throughout the
nation and the South, and it would be particularly inappropriate to
permit a party who engaged
in strategic defiance of a case to belatedly raise a venue motion.
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 8 of 11
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Initially, the doctrine of forum non conveniens applies only when the
more convenient
forum is a foreign country, and both Brink’s and Rojas reside in the
United States. See In re
Crash Disaster Near New Orleans, 821 F.2d 1147, n. 15 (5th Cir. 1987)
(en banc), vacated on
other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, 490 U.S.
1032 (1989), opinion
reinstated in part on other grounds, 883 F.2d 17 (5th Cir. 1989) (en
banc). Brink’s will respond
to his motion as if Rojas is requesting a change of venue under 28
U.S.C. § 1404(a). See Id. (“If
the motion seeks a change of forum within the federal system, 28 U.S.C.
§ 1404(a) applies
instead of the common law doctrine of forum non conveniens”).
Section 1404(a) provides: “For the convenience of parties and witnesses,
in the interest
of justice, a district court may transfer any civil action to any other
district or division where it
might have been brought.” 28 U.S.C. § 1404(a). When a motion is brought
to transfer venue,
the defendant has the burden of demonstrating why the forum should be
changed. Time, Inc.
v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). “A plaintiff’s choice of
a proper forum is a
paramount consideration in any determination of a transfer request, and
that choice should not
be lightly disturbed.” Young v. Armstrong World Indus., Inc., 601 F.
Supp. 399, 401 (N.D. Tex.
1984).
Venue is proper in this judicial district pursuant to 28 U.S.C. §
1391(b), because Brink’s
intellectual property in issue is located here; a substantial part of
the events giving rise to this
action occurred here, including offers to sell and sales of his products
and services throughout
the country and in Texas, and harm to Brink’s which is located here; and
because Rojas is
subject to personal jurisdiction in Texas. See Docket # 1, ¶¶ 5-6.
Rojas seems to claim that because he cannot obtain pro bono counsel in
Texas, venue is
improper. But Rojas does business nationwide. See Complaint, Ex. H, ¶ 7
(Rojas email
discussing relationships with dealers “all over the USA”). He apparently
does significant
business in Texas. Id., ¶ 8 (expressing familiarity with practices of
“many dealers in the South,
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 9 of 11
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like in Texas, Georgia, South Carolina, Tennessee & Alabama”). He
provides no reason why
he should be entitled to partake in the benefits of doing business in
Texas but be excused from
the obligation to defend a lawsuit in Texas. Nor does he provide any
reason or authority why
he would be entitled to pro bono counsel, much less a convenient place
for obtaining pro bono
counsel.2
Application of the traditional section 1404 factors favors denial of
Rojas’s motion.
Venue is proper in this district, and Brink’s choice of its forum is
entitled to heavy weight. See
Young, 601 F. Supp. at 402 (“Unless Defendants make an affirmative
showing of
oppressiveness, Plaintiff’s choices are not to be examined”). Multiple
Brink’s witnesses are
located in this district, and only one apparent witness (Rojas) resides
in his home forum.
Brink’s is likely to have more documents and physical evidence than
Rojas. This court has
already engaged in some substantive proceedings (the Temporary
Restraining Order and the
Preliminary Injunction), and transfer to another district will play into
the Rojas strategy of
delaying the action. Rojas’ delay in requesting such a transfer three
and a half months after the
Complaint was served also supports a denial of his motion. See Peteet v.
Dow Chem. Co., 868
F.2d 1428 (5th Cir. 1989) (“Parties seeking a change of venue should act
with ‘reasonable
promptness’”). Finally, given the circumstances here of Rojas’
deliberate defiance of the
proceedings, it would be particularly inappropriate to defer to his
belatedly raised venue
preferences.
Because Rojas has not set forth any reasons why the forum should be
changed and
because Brink’s choice of venue in this district is proper, Rojas’
motion to transfer should be
denied.
2 In any event, it is unlikely he will obtain pro bono counsel anywhere.
Public interest legal groups are
unlikely to find a public interest in Rojas’ use of lost or stolen
materials, his infringement of Brink’s
intellectual property, or his circumvention of lockout codes protecting
copyrighted software.
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 10 of 11
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Conclusion
For the reasons set forth above, Brink’s requests that the Court deny
Defendant’s
Motion to Dismiss for Forum Non Conveniens and Motion For Relief of
Default, and set a
hearing on Plaintiff’s Motion for Entry of Default Judgment.
Respectfully submitted,
By: _____/s Mark Sableman________
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 (jro...@tech-man.com) on July 25, 2007.
______/s/ Mark Sableman____________
Case 3:07-cv-00437 Document 23 Filed 07/25/2007 Page 11 of 11
Jim Rojas
website.
Jim Rojas
DK wrote:
At 1:09 PM 7/24/2007
Damn Jim. I just read all those PDF files. I am sending you all the
brinks install manuals, programmers, dealer handbooks, and anything else
I have left here of theirs. Those cocksuckers really have a pair of
balls. They pissed me off by back charging me for accounts I never even
put online for them. They even had the balls to send me bills for my
office alarm, and my home alarm as well, even though no brinks system
was ever installed there. They are all scumbags. If you need any help
with learning how to program their systems, give me a call. I would be
more than happy to help you out in anyway I can. They fucked me over
bigtime. Its time for payback.
Later. DK
Just Looking
any more than you can blame a dog for being a dog.
Jim you might be missing the point here. Mr. Sablemann gets paid, like all
vermin lawyers like him do I suspect, by billing by the hour. So when he
files a motion against you that is only one part of the bill he gets to
create. With every motion he gets to send another bill explaining to the
customer what he did (or didn't do) in the motion he filed. Then he gets to
bill for their return phone calls about future strategy etc. Believe me this
whole thing (as difficult as it may be for you to accept) has absolutely
nothing to do with you. It is simply the more he can file, the more money he
gets. There is no way you could make him feel anything good or bad about
himself as a lawyer or human being. That might be like trying to make
Hermann Goering feel bad about signing the orders to wipe out the Jews.
Practicing law is simply something he does, and feels he does well, and get
paid to do it. It is just a money thing. Nothing more. If you want to bug
him get see that he doesn't win and doesn't get paid. The first will annoy
him and the later will kill him.
Calling him a waste of human life is merely stating the obvious, and
encouraging him to chase ambulances would be an otherwise undeserved step up
the career ladder.
It is obvious that he views you as an under educated, low paid unskilled
tradesman of sorts that is barely worth his attention. If it wasn't for
Brinks paying the freight he would have little to do with you. This is
nothing he would take on as a cause for himself, as his overblown legal
advocacy seems to suggest. Until Brinks give up, using this forum for
taunting or revenge might be an activity you want to save for another day.
What you say here can only hurt you there.
Good luck.
"Jim Rojas" <jro...@tech-man.com> wrote in message
news:46a7bab8$0$29704$4c36...@roadrunner.com...