Brinks v Jim Rojas New Motion

[Jim Rojas <jrojas@xxxxxxxxxxxx>]

4599823
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
Brink?s Home Security, Inc., ::
Plaintiff, :
: Case No.: 3:07CV0437-B
v. ::
Jim Rojas, ::
Defendant. :
EMERGENCY MOTION FOR CONTEMPT
AND FOR ENFORCEMENT OF PRELIMINARY INJUNCTION
Plaintiff Brink?s Home Security, Inc., by its undersigned attorneys,
requests that
the Court hold Defendant Jim Rojas in contempt for violation of the
Court?s July 17, 2007
Preliminary Injunction, and take appropriate protective steps to enforce
the Preliminary
Injunction.
In support, Plaintiff states:
Rojas? Violations of Injunction
1. The Court?s Preliminary Injunction prohibits Rojas from publishing,
distributing or disseminating Brink?s trade secrets, including ?methods
of circumventing the
lock out codes on Brink?s control panels.?
2. Rojas has recently posted on his website, located at www.tech-man.com,
a software program titled ?Tech Help.? The Tech Help program contains
instructions which
clearly describe how to circumvent the lock out protection on Brink?s
Home Security control
panels. Plaintiff has prepared a Declaration of David Yorkey, Brink?s
Senior Manager of
Product Technology, describing his recent review and analysis of the
Tech Help program, and
setting forth screen shots from that program. By separate motion,
Plaintiff has requested leave
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to file the Declaration separately in an ex parte submission under seal.
(As set forth in that
motion, because the Yorkey declaration identifies the trade secret
information disclosed by
Rojas, a public filing of the declaration, or sharing of it with Rojas,
would in Brink?s opinion
defeat the purpose of this motion.)
3. Rojas clearly knowingly and intentionally posted these materials in
violation of the Preliminary Injunction. As previous filings in this
Court by both Brink?s and
Rojas have made clear, Rojas takes a hostile and antagonistic attitude
toward this Court and
the legal process. In various statements, some posted on Internet news
groups, some sent by
e-mail to Brink?s and the court, and some directly filed with the Court,
Rojas has displayed a
rebellious attitude, hostile to the American legal system.
4. As set forth in Plaintiff?s Motion for Temporary Restraining Order
(Docket #15), Rojas has sent multiple e-mails to Plaintiff?s counsel
stating or indicating that
he intended to ignore, defy and/or taunt Brink?s, its counsel and the
Court and judicial process.
In one of his e-mails, dated June 30, 2007, he stated that he intended
to publish Brink?s trade
secret information and make it available to all alarm dealers, together
with ?step by step
instructions? on how to circumvent Brink?s lock out codes on its control
panels. Brink?s filed
its Motion for Temporary Restraining Order in response to this threat.
Rojas then appeared by
telephone in a hearing on the Motion for Temporary Restraining Order
and, at that hearing,
essentially retracted his threats, stated that he did not intend to
disseminate Brink?s trade
secrets, and stated that he would consent to an Order of this court
prohibiting him from doing
such. The Court then entered its Temporary Restraining Order (Docket
#16), which was later
amended to become a Preliminary Injunction (Docket #22).
5. In August 2007, Plaintiff was approached by a third party who stated that
he was a business acquaintance of Rojas and hoped to facilitate a
settlement of this matter.
Brink?s participated in settlement discussions with Rojas through this
intermediary, and was
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told at one point by the intermediary that a settlement agreement had
been reached. However,
the intermediary later reported that Rojas had changed his mind and
would not agree to the
settlement. During the approximately five weeks when the settlement
discussions were going
on, Brink?s did not receive e-mails from Rojas, and in addition, various
Internet news groups
(where Rojas had in the past posted many messages concerning Brink?s and
this case) showed
no such activity. However, shortly before the intermediary reported to
Brink?s that Rojas was
backing out of the settlement agreement, Brink?s began receiving a
flurry of new e-mail
messages, all in the hostile style of Rojas? e-mails, although the
e-mails all came through
anonymizing portals and bore various signatures, most of which, like
?Noman Nescio? and
?Non sciveteni? are well known synonyms for ?Anonymous? or ?No Name.? It
is apparent
that Rojas authored and sent these e-mails.
6. Last week, Rojas further escalated the matter by posting various
messages on the Internet news group alt.security.alarms, some in his own
name and some sent
through anonymizing portals using anonymous names. Among other things, a
new message
strand entitled ?Brink?s BHS 2000D Hack? was created on
alt.security.alarms on October 3,
2007 at 1:17 p.m. through a posting by ?Anonymous.? In the initial post,
?Anonymous?
responded to a November 24, 2004 post by someone seeking information
regarding use of a
Brink?s BHS-2000D control panel. (A printout of this message strand is
attached hereto as
Exhibit A.) ?Anonymous? responded that the November 2004 poster only
needed a
programmer ?that will change the values on the chip.? A few minutes
after the initial posting
by ?Anonymous,? ?Jim Rojas? responded by clarifying the parts number of
the Brink?s chip.
Rojas, ?Anonymous? [or ?Anonymous Sender?] and two other posters,
?George Orwell? and
?Noman Nescio,? engaged in exchanges over the next few hours in which
they together
provided information on circumventing the lock-out codes on the Brink?s
Home Security
system. It is apparent that this posting was initiated, written, and
orchestrated by Rojas in
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order to harm Brink?s, by disseminating instructions on circumventing
lock-out codes on
Brink?s control panels in violation of this Court?s Preliminary Injunction.
7. In addition to the orchestrated message board dialogue with anonymous
versions of himself, Rojas more directly violated the Preliminary
Injunction by creating and
posting to his website a software program that contained explicit
directions on how to
circumvent the Brink?s lock out codes. Rojas publicized this program
(using his own name) on
the ?Brink?s BHS 2000D Hack ? message strand on the alt.security.alarms.
message board
posting on October 5. As a result of that posting, Brink?s reviewed the
program and
determined, as set forth in the Declaration of David Yorkey, that that
program contained
explicit instructions on circumventing Brink?s lock out codes in
violation of the Preliminary
Injunction.
8. In short, it is apparent that Rojas is intentionally violating the
Court?s
Preliminary Injunction. Everything about his recent activities is
consistent with malicious,
intentional defiance of the rights of Brink?s and the Court?s
Preliminary Injunction. Rojas
stayed silent when he was considering a settlement with Brink?s. When,
for whatever reason,
he decided not to settle, he began yet another flurry of hostile e-mails
and postings. In his
various postings, both to the alt.security.alarms news group and to his
own website, he
followed through on the threat he made in June to reveal Brink?s trade
secret information. His
apparent use of aliases and anonymizing services only highlights his
knowledge that the actions
he has taken are illegal.1 These actions directly violate and defy this
Court?s Preliminary
1 It is not entirely clear whether Rojas is truly attempting to hide his
identity or just engaging in childish
gamesmanship by using the aliases and anonymizing services. In one
recent message board strand, titled
?Brinks Home Security Evergreen Clauses,? populated by messages between
Rojas, ?George Orwell? and
?Harry Houdini,? one poster advised Rojas: ?Speaking of ?bottom
feeders,? perhaps you should to back to
posting as yourself ?before you become confused again.? See
alt.security.alarms, at
http://groups.google.com, ?Brinks Home Security Evergreen Clauses.?
Whether he is attempting to hide
his actions or simply amuse himself in connection with his violation of
the Court?s order, it is clear that
Rojas is thumbing his nose at the judicial system.
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Injunction. Moreover, in view of the fact that Rojas personally told the
Court on July 10, 2007
that he would not follow through on his threats and that he would comply
with the Court
Order, it is clear that Rojas can not be trusted.
9. As further evidence of Rojas? intention to deliberately violate the
Preliminary Injunction, on October 2, 2007, he posted a message to the
alt.security.alarms
newsgroup that stated, in part:
I'll start by adding everything I know about Brinks security in my tech
help program, which is MY INTELLECTUAL PROPERTY. Feel free to file
injunctions against my intellectual property. Please, I can really use
the extra money. Maybe then I can afford to hire a lawyer to get a class
action lawsuit going. Then, I will create a website in some third world
country that is not bound by any of Mr Sablemans assumptions or motions.
I was thinking BRINKS-SUCKS.COM. I'll get back to you on that.
(Copy attached as Exhibit B; emphasis added.) And on October 7, 2007, he
sent an email to
various recipients in which he stated:
I did ask Brinks numerous times to prove that I stole any equipment,
programmers, etc. I even asked them to produce one of their customers that I
supposedly assisted to switchover to another monitoring station, or who I
assisted to unlock their panel. But they really don't care to hear about
that. At
this point in time, I really don't care either way. I wasted enough time
filing
pointless motions to the court. It all falls on deaf ears anyway. So
instead, I
will continue to use the only avenue I have to level the playing field...THE
INTERNET.
(Copy attached as Exhibit C; emphasis added.) These messages evidence an
intent to violate
Brink?s rights by disseminating Brink?s trade secrets over the Internet,
and using the Internet to
evade the power of United States courts.
10. For these reasons, Brink?s requests that Rojas be immediately held in
contempt, that the Court take appropriate action to prevent further
violations of its
Preliminary Injunction by Rojas, and that the Court appropriately punish
Rojas for his
violations so far, and compensate Brink?s for the damage caused by
Rojas? violations.
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Court?s Personal Jurisdiction Over Rojas
11. This Court clearly has jurisdiction over Rojas and should not delay full
and effective contempt proceedings against him. Brink?s recent brief
regarding personal
jurisdiction, Docket # 31, fully explains the legal basis for this
Court?s jurisdiction over Rojas.
Moreover, personal jurisdiction, unlike subject matter jurisdiction, can
be waived, and in this
case, Rojas, by voluntarily appearing herein, has clearly waived any
objections he might
otherwise have to personal jurisdiction.
12. Rojas studiously avoided appearing in this Court for the first three
months of this action. However, after Brink?s filed its Motion for
Default Judgment,(Docket
#13), and the Court sought a response from Rojas (Docket #14), Rojas
then appeared in the
case, submitting filings through which he sought to avoid having a
default judgment entered
against him. While his filings were not conventional, they clearly
constituted an appearance
under the law. See Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811
F.2d 278, 281 (5th Cir.
1987) (finding waiver of a defect in personal jurisdiction and noting "a
party need not
necessarily file an answer in federal court to put in an appearance for
purposes of Rule 12(h):
'An appearance may also arise by implication from a defendant's seeking,
taking, or agreeing to
some step or proceeding in the cause beneficial to himself or
detrimental to plaintiff other than
one contesting only the jurisdiction or by reason of some act or
proceeding recognizing the case
as in court.'"); MCW, Inc. v. Badbusinessbureau.com, L.L.C., No.:
3:02-CV-2727-G, 2004 WL
833595 at *4-5 (N.D. Tex. April 19, 2004) (denying motion to dismiss for
lack of personal
jurisdiction under Rule 12(h)(1) because defendants waived the defense
by not raising it in their
first Rule 12(b) motion); O'Brien v. R.J. O'Brien & Assoc., Inc., 998
F.2d 1394 (7th Cir. 1993)
(waiver of challenge to personal jurisdiction by not raising the issue
in defendant's motion to
vacate an entry of default). Rojas cannot have it both ways, first by
appearing in the case and
seeking to avoid the default judgment, and second by asserting in the
face of imminent adverse
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action against him that he is not subject to the Court?s jurisdiction.
Once he appears, as he did
in June 2007, he is fully in the case, and fully subject to all orders
and judgments of the Court.
Indeed, there can be no doubt as to the validity of the Preliminary
Injunction against Rojas,
because Rojas, in the telephone hearing on the original Temporary
Restraining Order, explicitly
told the Court that he would not object to the Order, and would comply
with it. See
Temporary Restraining Order, Docket #16 (?the Defendant poses no
objection to the relief
sought?). Again, one who has consented to a Court Order cannot later
contest its jurisdictional
effect.
13. In short, there is no question as to this Court?s personal
jurisdiction over
Rojas for all purposes, and especially for purposes of full enforcement
of its Preliminary
Injunction.
Relief Requested
14. Plaintiff requests that the Court either find Rojas in contempt based
upon the evidence set forth herein, or promptly set a telephonic hearing
to address this motion.
15. If and when the Court finds Rojas in contempt, Plaintiff requests that
the Court:
a. Instruct the United States Marshall to immediately seize all computers
and communication devices located on Rojas? premises at 8002 Cornwall Lane,
Tampa, Florida 33615-4604, in order to prevent further violations of the
Preliminary
Injunction. In light of Rojas? record of defiance and untrustworthiness,
a seizure of the
instrumentalities of his violations is necessary to prevent further
harm. Cf., United
States v. Mitnick, 145 F.3d 1342 (9th Cir 1998) (affirming conditions of
supervisory
release which restricted connected computer hacker?s access to computers).2
2 If the computers are seized, Brink?s should be permitted to have an
independent expert preserve the
contents of the computers, by taking mirror images of their hard drives,
so that such evidence is fully
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b. Instruct the United States Marshall to serve a copy of its Order on
Rojas?
Internet service provider, Ecommerce Corporation, d/b/a 1X Web Hosting,
247 Mitch
Lane, Hopkinsville, Kentucky 42240, instructing it (1) not to facilitate
any violations of
the Preliminary Injunction by Rojas, and specifically to not assist
Rojas in any manner
in disseminating instructions regarding circumvention of Brink?s lock
out-codes, or any
other content that would violate the Preliminary Injunction, and (2) to
hold in escrow
all revenue due Rojas pending a final determination by this Court of
these contempt
proceedings and any fines imposed therein.
c. Award Brink?s a compensatory fine of at least $10,000, or such other
amount as the Court deems appropriate in the circumstances, to
compensate Brink?s
for its actual loss due to the violation, plus Brink?s reasonable
expenses including
attorney's fees in preparing for the contempt proceeding. See Sebastian
v. Texas Dep't
of Corrections, 558 F. Supp. 507 (S.D. Tex. 1983); Cook v. Ochsner
Found. Hospital,
559 F.2d 270 (5th Cir. 1977).
d. Impose an appropriate punishment on Rojas for his intentional
violations of the Preliminary Injunction.
preserved in the event that it becomes necessary in further proceedings
to determine the full extent to
which Rojas has violated the injunction and/or violated Brink?s rights
as alleged in the Complaint. Based
on Rojas? threats and conduct so far in this litigation, it is clear
that there is a significant danger of
destruction of evidence, and accordingly it is essential to preserve key
evidence.
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15. Plaintiff requests that this motion be considered on an expedited
emergency basis because of the irreparable harm involved in violation of
the Court?s
Preliminary Injunction and intentional dissemination of Brink?s trade
secrets.
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 October 9, 2007.
______/s/ Mark Sableman____________
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