Re: Brinks v Jim Rojas New Motion

["Just Looking" <nospam@xxxxxxxxxx>]

This has gone far enough, plain and simple. Other interests are at stake
here and may weigh in soon enough.

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.

I am curious as to what legal theory this operates under where the Plaintiff
may receive any amount of recovery that does not reflect any actual loss.
Does Brinks operate under the laws of the State it has filed in? The
validity of the claims submitted including in the preparation of this case
for trial should require legal interpretations for notes and/or memoranda
that may be subpoenaed. Other than for nonstatutory exceptions, and under
the color of state law under which Brinks operates certain items are
privileged and not admissible in Court or subject to discovery.

TEXAS DEPARTMENT OF PUBLIC SAFETY PRIVATE SECURITY BUREAU MSC-0242 P.O. BOX
4087 AUSTIN TX 78773-0001
Sec. 1702.132. REPORTS TO EMPLOYER OR CLIENT. (a) A written report submitted
to a license holder's employer or client may only be submitted by the
license holder or manager or a person authorized by a license holder or
manager. The person submitting the report shall exercise diligence in
determining whether the information in the report is correct.

(b) A license holder or an officer, director, partner, manager, or employee
of a license holder may not knowingly make a false report to the employer or
client for whom information is obtained.

Sec. 1702.133. CONFIDENTIALITY; INFORMATION RELATING TO CRIMINAL OFFENSE.
(a) A license holder or an officer, director, partner, or manager of a
license holder may not disclose to another information obtained by the
person for an employer or client except:

(1) at the direction of the employer or client; or
(2) as required by state law or court order.
(b) A license holder or an officer, director, partner, or manager of a
license holder shall disclose to a law enforcement officer or a district
attorney, or that individual's representative, information the person
obtains that relates to a criminal offense.

Item (2) is not covered by the type of relief the Plaintiff is seeking. How
can Brinks expect Rojas to comply with an order it would otherwise be
prohibited from complying with in its own state? It is obvious that a simple
civil matter such as this is not sufficient cause to disclosure of the
security posture of third parties, many of which may be government entities.
http://www.txdps.state.tx.us/psb/forms/forms/PreHearingReq1.pdf
Since it costs nothing to comply with the BUREAU, when appropriate I will
forward this entire matter for their considered attention. I see no reason
for Brinks' legal department to cause Brinks itself to suffer a license
suspension. No matter the venue it has selected, Brinks has submitted itself
to an agency that it seems to so far have ignored it is efforts to address:
(C) the location, disposition, or recovery of lost or stolen property;
Why is Brinks' legal staff trying to undermine the letter and spirit of
these rules that the industry, presumably including Brinks, has fought a
hard legal battle to see implemented? Why is Brinks so far seemingly viewing
this all as a nuisance to simply be ignored? Under the rules Brinks has
submitted itself to the Yorkey declaration could be disputed and become a
matter of record for public disclosure under the act. Not only would the
technical accuracy, but the full details of the motives for such a statement
could come into question. The agency is far more technical in its reviews
and the arguments are subject to its own rulings, not a plethora of legal
court precedence. None likely favorable to Brinks at this point since the
BUREAU in the past has not given much weight to any civil court actions or
rulings it is not directly subject to, only criminal courts as evidenced in
item (2) (b). Declarations to professional associations voluntarily joined
by Brinks do not provide much to show any expertise under services provided
compared to say ADT.
http://www.tbfaa.org/html/members.asp?m_id=55
It is clear that licensed members of this organization would not seek to
unlock panels belonging to another or would be subject to the severe career
ending consequences of a theft by appropriation conviction. What efforts has
Brinks made to invite the membership of this or any other professional
organization to participate in assisting Brinks to stop this practice? This
member organization is not going to see any of this in a favorable light I
suspect, and may make seek professional sanctions within the organization
against Brinks for this otherwise ludicrous, ill advised, and wasteful legal
pursuit; especially if a court ruling in this matter helps to establish
another legal issue the organization itself must try to overcome at
additional member expense. Will Brinks offer to indemnify the organization
from any expense or exposure of its membership in advance of any court
rulings? Or will Brinks be content to feed of the efforts of other members,
while attempting to protect its own interests regardless of the costs others
may be forced to bare by their actions? And what brings all this? Singleness
of purpose no doubt.
For the record I can say from experience that a court ordered motion to
compel and/or for sanctions are not recognized as an item (2) exception by
the BUREAU rules Brinks operates under. It is not a mere irony that a
pyrrhic victory in Court may prove grounds for suspension of its employees,
or the company itself, for what could be ruled as violations of Sec.
1702.132. and Sec. 1702.133, through the only agency that can authorize its
continued legal operation.
Something I read in Hosea 8:7 sounds very familiar here. That brought on by
something else I read. I think Jim has become a white whale.
That captain was Ahab. And then it was, that suddenly sweeping his
sickle-shaped lower jaw beneath him, Moby Dick had reaped away Ahab's leg,
as a mower a blade of grass in the field.... Small reason was there to
doubt, then, that ever since that almost fatal encounter, Ahab had cherished
a wild vindictiveness against the whale, all the more fell for that in his
frantic morbidness he at last came to identify with him, not only all his
bodily woes, but all his intellectual and spiritual exasperations. The White
Whale swam before him as the monomaniac incarnation of all those malicious
agencies which some deep men feel eating in them, till they are left living
on with half a heart and half a lung. That intangible malignity which has
been from the beginning; to whose dominion even the modern Christians
ascribe one-half of the worlds; which the ancient Ophites of the east
reverenced in their statue devil; -- Ahab did not fall down and worship it
like them; but deliriously transferring its idea to the abhorred white
whale, he pitted himself, all mutilated, against it. All that most maddens
and torments; all that stirs up the lees of things; all truth with malice in
it; all that cracks the sinews and cakes the brain; all the subtle demonisms
of life and thought; all evil, to crazy Ahab, where visibly personified, and
made practically assailable in Moby Dick. He piled upon the whale's white
hump the sum of all the general rage and hate felt by his whole race from
Adam down; and then, as if his chest had been a mortar, he burst his hot
heart's shell upon it.




"Jim Rojas" <jrojas@xxxxxxxxxxxx> wrote in message
news:470BFCC8.4080809@xxxxxxxxxxxxxxx
> 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
> Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 1 of 9
> 4599823 - 2 -
> 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
> Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 2 of 9
> 4599823 - 3 -
> 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
> Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 3 of 9
> 4599823 - 4 -
> 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.
> Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 4 of 9
> 4599823 - 5 -
> 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.
> Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 5 of 9
> 4599823 - 6 -
> 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
> Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 6 of 9
> 4599823 - 7 -
> 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
> Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 7 of 9
> 4599823 - 8 -
> 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.
> Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 8 of 9
> 4599823 - 9 -
> 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____________
> Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 9 of 9