Re: Brinks Home Security v Jim Rojas

[Jim Rojas <jrojas@xxxxxxxxxxxx>]

4548897
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.
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& 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.
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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):
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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
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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
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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
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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
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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.
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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,
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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.
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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 (jrojas@xxxxxxxxxxxx) on July 25, 2007.
______/s/ Mark Sableman____________
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