Response To Defendants Motions To Dismiss 9-22-14 (Conformed)

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KELLY / WARNER, PLLC
8283 N. Hayden Road, Suite 229
Scottsdale, Arizona 85258
Daniel R. Warner, Esq. (AZ Bar # 026503)
Email: dan@kellywarnerlaw.com
Aaron M. Kelly, Esq. (AZ Bar #025043)
Email: aaron@kellywarnerlaw.com
Tel: 480-331-9397
Fax: 1-866-961-4984
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
JOHN MONARCH, an individual; DIRECT
OUTBOUND SERVICES LLC, a South
Carolina limited liability company,

Plaintiffs,

v.

RICHARD A. GORMAN and SACHA
JAKMIAN, aka SACHA GORMAN, husband
and wife; GORMAN ECONOMICS, LLC, a
Delaware limited liability company;
VANGUARD ECONOMICS, LLC, a Georgia
limited liability company, dba AT COST
FULFILLMENT, dba FULFILLMENT.COM;
AT COST NUTRACEUTICALS, LLC, a
Georgia limited liability company;
BRAND.COM, INC., A Pennsylvania
Corporation; JOHN DOES I-X; JANE DOES I-
X; ABC PARTNERSHIPS I-X; DEF LIMITED
LIABILITY COMPANIES I-X; and XYZ
CORPORATIONS I-X,
Defendants.
Case No. 2:14-cv-01655-SRB

PLAINTIFFS
CONSOLIDATED RESPONSE
TO MOTIONS TO DISMISS
FOR LACK OF PERSONAL
JURISDICTION FILED BY
DEFENDANTS RICHARD
GORMAN (Doc 31), SACHA
JAKMIAN (Doc 42), GORMAN
ECONOMICS LLC (Doc 36),
VANGUARD ECONOMICS
LLC (Doc 32), AT COST
NUTRACEUTICALS LLC (Doc
36), AND BRAND.COM INC.
(Doc 20)

(Assigned to the Honorable Susan
R. Bolton)

Plaintiffs John Monarch (Monarch) and Direct Outbound Services LLC
(DOS) (collectively Plaintiffs), by and through undersigned counsel, respectfully
request that the Court deny the above-referenced Motions to Dismiss (the Motions)
Case 2:14-cv-01655-SRB Document 46 Filed 09/22/14 Page 1 of 19

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because (1) the Entity Defendants
1
are alter egos and/or agents of each other, which were
controlled, directed, and used by Defendant Richard Gorman (Gorman), ACF, and
Sacha Gorman to engage in a defamation campaign against Plaintiffs; (2) the posting on
www.ripoffreport.com (ROR) was the heart of the defamation campaign given that the
posting can never be removed, among other reasons; and (3) pursuant to the forum
selection clause in RORs Terms of Service, Defendants, by and through their agent,
agreed to submit to the exclusive jurisdiction of the federal and state courts in the State of
Arizona for purposes of litigation in connection with ROR.
In the event it is unclear whether the Court has jurisdiction over some or all
Defendants, Plaintiffs respectfully request that the Court permit Plaintiffs to engage in
jurisdictional discovery. This Response is supported by the following Memorandum of
Points and Authorities and all filings in this matter, which are all hereby incorporated by
reference.
MEMORANDUM OF POINTS AND AUTHORITIES
I. BACKGROUND; RELEVANT FACTS.
In January of 2014, Plaintiffs discovered a number of websites containing content
that was created to defame and harm Plaintiffs. (Declaration of Monarch (Monarch
Decl.), 4, attached to Exhibit 1 hereto; see also Declaration of Aaron Kelly (Kelly
Decl.), 3, attached to Exhibit 2 hereto). The websites (Websites) that Defendants
purchased and used to defame Plaintiffs are http://www.johncmonarch.com,
http://ilyaputin.com/, http://johnmonarchsucks.com, and

1
Entity Defendants hereinafter collectively refers to Vanguard Economics LLC, aka
Fulfillment.com and/or At Cost Fulfillment LLC, (collectively ACF); Gorman
Economics LLC (GEC); At Cost Nutraceuticals LLC (ACN); and Brand.com Inc.
(Brand).

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johnmonarchdirectoutbound.com. (Monarch Decl. 5; Kelly Decl. 4). In addition to
the Websites, multiple posts (Posts) were created by Defendants to defame Plaintiffs,
including postings on ROR, slideshare.com, and pissedconsumer.com. (Monarch Decl.
6; Kelly Decl. 5).
Plaintiffs retained counsel to discover the identity of the person(s) who created the
Websites and Posts (collectively the Content). (Monarch Decl. 7; Kelly Decl. 6).
A Complaint was filed in Maricopa County Superior Court, case number CV2014-
001469 in order to seek the true identity of the person(s) who created the Content.
(Monarch Decl. 8 Kelly Decl. 7).
In response to a subpoena seeking the true identity of the person(s) who registered
the Websites, Namecheap.com (Namecheap) provided the username kinkarsaha, the
name Sumita Sarkhel, and an email address of kinkar.saha@gmail.com. (Monarch Decl.
10; Kelly Decl. 9). In addition to the Websites, the account also contained several other
URLs that were purchased by the account holder. (Monarch Decl. 11; Kelly Decl. 10).
Several of the URLs are used to sell dietary supplements on behalf of a company owned
by Justin Holland Singletary (Singletary). (Monarch Decl.13; Kelly Decl. 12).
Singletary is one of the owners of ACN and ACF. As stated in his Declaration,
Gorman is affiliated with ACF, GEC and Brand. See Gorman Declaration at 9 (Doc.
31-1). More specifically, however, Gorman is the co-founder of Brand and is the
purported sole owner of GEC. (Monarch Decl. 16; Kelly Decl. 15). Notably, GEC is
one of the co-owners of ACF. Id. The other co-owner is Creative Estates LLC, which is
solely owned by Singletary. Id.

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Gorman denies any ownership in ACN, which is purportedly owned by Singletary.
(Monarch Decl. 17; Kelly Decl. 16). However, ACN was curiously created 7 days after
the beginning of Defendants smear campaign against Plaintiffs, but both ACN and ACF
still share the same business address and engage in the same line of business. Id.
Similarly, in the past, GEC, ACN, ACF, and Brand (fka Reputation Changer LLC) all
shared the same address. (Monarch Decl. 18; Kelly Decl. 17).
In response to a subpoena seeking to discover the owner of the servers where the
offending Websites were being hosted, RamNode, LLC (Ramnode) provided the name
of Kinkar Saha, with an email address of kinkar.saha@gmail.com and IP address of
122.163.77.69. (Monarch Decl. 22; Kelly Decl. 21).
A company called CloudFlare, Inc. (Cloudflare) was also used in conjunction
with Ramnode to optimize the traffic going to the Website, among other reasons. In
response to a subpoena seeking to discover the owner of the servers where the offending
Websites were being hosted, Cloudflare also provided the name of Kinkar Saha, with an
email address of kinkar.saha@gmail.com and IP address of 122.163.63.174. (Monarch
Decl. 24; Kelly Decl. 24). In addition to the Websites, the account also contained
several other URLs that were hosted by Cloudflare, including, but not limited to,
brand.com, reputationchanger.com, atcostfulfillment.com, fulfillment.com,
atcostnutra.com, kinkarsaha.com, rich-gorman.net, directresponse.net,
directresponseagency.net, reputationchanger.net, reputationchanger.org, reputation-
changer.com, reputationchangersucks.com, richgormanonline.com, richgormanbio.com,
richgormansite.com, no2explodeextreme.com, reputationmanagementagency.com, and
richgormansexoffender.com. (Monarch Decl. 25; Kelly Decl. 25).

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This single Cloudflare account comingles URLs for Brand, ACN, ACF, GEC, and
Gorman; a single fee is paid for all the URLs; and the URLs are maintained by Kinkar
Saha (Kinkar). (Monarch Decl. 26; Kelly Decl. 26). Notably, even though Brand
paid $500,000.00 for brand.com, Brand has still elected to comingle the URL with
those owned by ACF, ACN, GEC, and Gorman. Id.
While researching Kinkar, it was discovered that he listed himself as the Software
Development Manager for Brand on his linkedin.com profile. (Monarch Decl. 27; Kelly
Decl. 28). Furthermore, in his description for his employment with Brand, Kinkar states
it takes years to build a solid reputation and seconds to destroy it. Id. Nowadays after
someone meets you the first thing they do is Google your name or your companies
name. Notably, he specifically mentions becom[ing] the victim of . . . a RipOffReport.
Id. It was further discovered that Kinkar was listed as Brands Chief Technology
Officer on brand.com. (Monarch Decl. 28; Kelly Decl. 28).
In response to a subpoena seeking the true identity of the poster, ROR stated the
applicable post was made on January 15, 2014, by Mary H. Jones, who used
nicetry14@hmamail.com for the email address in connection with the ROR post, as well
as the IP address of 166.137.12.47. (Monarch Decl. 30; Kelly Decl. 30).
In response to a subpoena seeking the true identity of the poster, Slideshare.com
(Slideshare) stated that the post was made on January 15, 2014, by
JohnMonarchsColdMeal, with an email address of Nicetry14@hmamail.com, and an IP
address of 166.137.12.47. (Monarch Decl. 34; Kelly Decl. 34). Notably, the metadata
of the content that was posted on Slideshare was examined, which revealed that the
document was created by Gorman of GEC. (Monarch Decl. 35; Kelly Decl. 35).

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Significantly, the same email address and IP address were used in connection with
both the ROR post and the Slideshare post. (Monarch Decl. 36; Kelly Decl. 36).
Accordingly, the same person(s) made the posts on ROR and Slideshare. Id.
Upon researching the Websites further, it was discovered that johncmonarch.com
contained a post that was made on January 15, 2014 -- which is the same day the posts
were made on Slideshare and ROR. (Monarch Decl. 37; Kelly Decl. 37). Curiously,
however, the posting on johncmonarch.com already referenced the newly created posting
on Slideshare. Id.
Additionally, the posting on johncmonarch.com states that Brand has an audiotape
of Monarchs friend prank calling Brand. (Monarch Decl. 38; Kelly Decl. 38). How
would the poster have such information unless the poster was associated with Brand? Id.
Furthermore, the posting incorrectly alleges that Monarch has attacked ACF. Id.
The ROR posting and the posing on http://johnmonarchsucks.com/ are very
similar; both postings provide the same detailed list of steps Monarch allegedly takes to
scam customers. (Monarch Decl. 39; Kelly Decl. 39). However, one could easily
discern that the language was purposefully changed so that it would not be exactly the
same. Id.
Based upon the foregoing, it appears that the owner of the Websites, specifically
johncmonarch.com, is the same person who posted on Slideshare and ROR, or was
responsible for or was working with the person(s) who posted on Slideshare and ROR.
(Monarch Decl. 40; Kelly Decl. 40). Given that the majority of the Content was
posted on the same day, as well as the nature and similarity of the Content, it is clear that

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the poster(s) intended this to be one big smear campaign against Plaintiffs, with the ROR
posting being the heart of the campaign. (Monarch Decl. 41; Kelly Decl. 41).
ROR postings generally rank extremely high in search engine results and are often
the most damaging type of posting. (Kelly Decl. 42). It is not uncommon to see a ROR
posting rank higher in the search engine results than a persons own website. And in this
case, the ROR post ranks higher than Monarchs own linkedin.com page. (Monarch Decl.
42). Additionally, ROR postings are impossible to get removed and can be very
difficult to get de-indexed from the search engine results. (Monarch Decl. 42; Kelly
Decl. 42).
When considering all of the circumstances, it appears that Gorman and ACN hired
and/or used Brand as its agent to complete the smear campaign against Plaintiffs.
(Monarch Decl. 43; Kelly Decl. 43). There have been other cases where people have
alleged that Brand defames its clients competition as part of the reputation management
services provided. (Monarch Decl. 43; Kelly Decl. 44). Furthermore, given that
Gorman is the co-founder of Brand, and was able to comingle various URLs and
accounts associated with all Defendants, it is likely that he was able to control and use
Brand as his agent to complete the smear campaign against Plaintiffs. Id. In addition to
his personal motives for retaliation against Monarch (as alleged in the Second Amended
Complaint), Gorman, along with ACF and ACN, had financial motives to destroy
Plaintiffs as direct competitors. (Monarch Decl. 44; Kelly Decl. 45).
Brand, through Kinkar (its officer), registered the Websites, hosted the Websites,
and made the postings, including the postings on ROR and Slideshare. (Monarch Decl.
45; Kelly Decl. 46). Notably, in his Declaration, Gorman, under the penalty of perjury,

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stated that he did not post any information on the website known as
www.ripoffreport.com . . . . See Gorman Decl. 6. Accordingly, as alleged in the
Second Amended Complaint (SAC), upon information and belief, the defamatory
content on ROR was posted by an agent of Gorman, GEC, ACF, ACN, and Brand.
(Monarch Decl. 46; Kelly Decl. 47). Pursuant to RORs Terms of Service, anyone
who posts content on ROR must agree to submit to the exclusive jurisdiction of the
federal and state courts in the State of Arizona in connection with ROR or this
Agreement. Defendants, by and through their agent, agreed to submit to the exclusive
jurisdiction of the federal and state courts in the State of Arizona for purposes of
litigation related to their smear campaign against Plaintiffs in connection with ROR; Id.
therefore, all motions to dismiss should be denied.
II. ARGUMENT.
A. Legal standard applicable in reviewing a motion to dismiss for lack of
personal jurisdiction.

When a defendant moves, prior to trial, to dismiss a complaint for lack of personal
jurisdiction, the plaintiff must come forward with facts, by affidavit or otherwise,
supporting personal jurisdiction. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986)
(quoting Amba Mktg. Sys., Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir.1977)).
Because there is no statutory method for resolving the question of personal
jurisdiction, the mode of determination is left to the trial court. Data Disc, 557 F.2d at
1285 (citing Gibbs v. Buck, 307 U.S. 66, 7172, 59 S.Ct. 725, 83 L.Ed. 1111 (1939)).
Where a court resolves the question of personal jurisdiction using motions and supporting
affidavits, the plaintiff must make only a prima facie showing of jurisdictional facts
through the submitted materials in order to avoid a defendant's motion to dismiss. Id. In

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determining whether the plaintiff has met that burden, the uncontroverted allegations
in [the plaintiff's] complaint must be taken as true, and conflicts between the facts
contained in the parties' affidavits must be resolved in [the plaintiff's] favor for purposes
of deciding whether a prima facie case for personal jurisdiction exists. Rio Props., Inc.
v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir.2002).
To establish personal jurisdiction over a nonresident defendant, a plaintiff must
show that the forum state's long-arm statute confers jurisdiction over the defendant and
that the exercise of jurisdiction comports with constitutional principles of due process.
Id.; Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 269 (9th Cir.1995).
Arizona's long-arm statute allows the exercise of personal jurisdiction to the same extent
as the U.S. Constitution. See Ariz. R. Civ. Proc. 4.2(a); Cybersell v. Cybersell, 130 F.3d
414, 416 (9th Cir.1997). Thus, a court in Arizona may exercise personal jurisdiction over
a nonresident defendant so long as doing so accords with constitutional principles of due
process. Cybersell, 130 F.3d at 416. Due process requires that a nonresident defendant
have sufficient minimum contacts with the forum state so that maintenance of the suit
does not offend traditional notions of fair play and substantial justice. Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
However, [t]he Court need not resolve all of these arguments [regarding
minimum contacts] because the existence of a forum selection clause in this case
renders personal jurisdiction and venue proper in this Court. Productive People, LLC
v. Ives Design, CV-09-1080-PHX-GMS, 2009 WL 1749751 (D. Ariz. June 18,
2009)(emphasis added). A contract's forum selection clause alone is sufficient to
confer personal jurisdiction and venue, Chan v. Soc'y Expeditions, Inc., 39 F.3d 1398,

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140607 (9th Cir.1994), and [a]t the initial stage of litigation, a party seeking to
establish jurisdiction need only make a prima facie showing by alleging facts which, if
true, would support the court's exercise of jurisdiction, New Moon Shipping Co., Ltd. v.
MAN B & W Diesel AG, 121 F.3d 24, 29 (2d Cir.1997). Productive People, LLC, CV-
09-1080-PHX-GMS, 2009 WL 1749751 (emphasis added); see also ZengerMiller, Inc.
v. Training Team, GmbH, 757 F.Supp. 1062, 1069 (N.D.Cal.1991) ([T]he court need not
embark on a minimum contacts' analysis where the defendants have consented to []
jurisdiction.).
B. Plaintiffs may enforce the forum selection clause in RORs Terms of
Service against all Defendants.

In diversity cases, federal law determines the validity of a forum selection clause.
ManettiFarrow, 858 F.2d at 513 (9th Cir.1988). The U.S. Supreme Court has held that
forum selection clauses are presumptively valid and should only be set aside if the party
challenging enforcement can clearly show that enforcement would be unreasonable and
unjust. M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d
513 (1972). The party opposing enforcement bears a heavy burden to prove the
unreasonableness of a forum selection clause. See Argueta v. Banco Mexicano, S.A., 87
F.3d 320, 325 (9th Cir.1996).
It is well settled in the Ninth Circuit and this District that a forum selection clause
may be enforced by a non-party to the contract against those that are bound to the
contract. See Productive People, LLC, CV-09-1080-PHX-GMS, 2009 WL 1749751 (
[T]hird-party beneficiary status is not required for non-parties to benefit from or be
bound by forum selection clauses.); see also ManettiFarrow, Inc. v. Gucci Am., Inc.,

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858 F.2d 509, 514 n. 5 (9th Cir.1988) (explaining that both parties and non-parties may
benefit from and be subject to forum selection clauses).
Productive People, LLC v. Ives Design is extremely illustrative given the
comparable facts and circumstances. In Productive People, LLC, Judge Snow permitted
the plaintiff to enforce a forum selection contained in GoDaddys terms of service
agreement against the defendants because the defendants agreed that, [f]or the
adjudication of disputes concerning the use of any domain name registered with Go
Daddy, You agree to submit to jurisdiction and venue in the U.S. District Court for the
District of Arizona located in Phoenix, Arizona. Productive People, LLC, CV-09-1080-
PHX-GMS, 2009 WL 1749751. Judge Snow held that defendants argument regarding
the intent of the agreement to only be between GoDaddy and defendant was without
merit because the case clearly involved a dispute[ ] concerning the use of [a] domain
name registered with [GoDaddy.com] as required by the plain language of the terms of
service agreement. Id.
Similarly, just as in that case, Defendants, by and through their agent, agreed to
submit to the exclusive jurisdiction of the federal and state courts in the State of Arizona
in connection with ROR or this Agreement. Just as in Productive People, LLC,
2
the
first part of the forum selection clause in RORs Terms of Service is a choice of law
clause, the second part is a provision governing disputes arising out of or relating to this

2
The first sentence is a choice of law clause, and thus it is not applicable here. The
second sentence is a forum selection clause governing disputes relating to or arising out
of [the] Agreement, and it provides that those disputes shall be brought in the Maricopa
County Superior Court. The third sentence is a forum selection clause governing a
different kind of disputethose concerning the use of any domain name registered with
Go Daddyand it provides that such disputes may be brought in the federal district
court in Arizona. Productive People, LLC, CV-09-1080-PHX-GMS, 2009 WL
1749751.

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Agreement which shall be subject to the exclusive venue of the federal and state courts
in the State of Arizona, and the third part is a provision governing a different kind of
dispute -- those in connection with ROR or this Agreementand it provides that such
disputes may be brought in the federal and state courts in the State of Arizona.
3

Accordingly, because Gorman and ACN, by and through their hired agent (Brand),
agreed to submit to the exclusive jurisdiction of the federal and state courts in Arizona for
purposes of litigation in connection with ROR, all motions to dismiss should be denied.
Additionally, enforcement of the applicable forum selection clause in this matter would
be both reasonable and economical.
Defendants should not get the benefits of posting on ROR without the burdens.
ROR will not provide any information without being subpoenaed, and in many cases,
ROR routinely objects when subpoenaed and requires the plaintiff to obtain a court order
(from an Arizona court) before it will disclose the identity of the anonymous poster.
(Kelly Decl. 48). Therefore, in fairness, Defendants should be required to litigate this
case in Arizona as they agreed.

3
Compare RORs Terms of Service (You agree that Arizona law (regardless of conflicts
of law principles) shall govern this Agreement, that any dispute arising out of or relating
to this Agreement shall be subject to the exclusive venue of the federal and state courts in
the State of Arizona, and that you submit to the exclusive jurisdiction of the federal and
state courts in the State of Arizona in connection with ROR or this Agreement.), with
GoDaddys Term (Except for disputes concerning the user of a domain name registered
with Go Daddy, You agree that the laws and judicial decisions of Maricopa County,
Arizona, shall be used to determine the validity, construction, interpretation and legal
effect of this Agreement. You agree that any action relating to or arising out of this
Agreement shall be brought in the courts of Maricopa County, Arizona. For the
adjudication of disputes concerning the use of any domain name registered with Go
Daddy, You agree to submit to jurisdiction and venue in the U.S. District Court for the
District of Arizona located in Phoenix, Arizona.).

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Furthermore, because Plaintiff is alleging agency and alter ego, this District
appears to be the most logical place to litigate these issues for purposes of judicial
economy. Otherwise, the litigation would be three times as burdensome as it would be
spread throughout several districts, including Pennsylvania, Delaware, and Georgia.

C. Because the Entity Defendants are alter egos and/or agents of each
other, which were controlled, directed, and used by Gorman, ACF, and
Sacha Gorman when consenting to RORs Terms of Service,
Defendants are bound by the applicable forum selection clause.

The Ninth Circuit has held that if a plaintiff shows that a defendant corporation is
the alter ego of an individual defendant such that the corporate form may be disregarded,
then a finding of personal jurisdiction over one supports a finding of personal jurisdiction
over the other. Barba v. Seung Heun Lee, CV 09-1115-PHX-SRB, 2009 WL 8747368
(D. Ariz. Nov. 4, 2009).
Under Arizona law,
The corporate fiction will be disregarded when the corporation is the
alter ego of a person, and when to observe the corporation would
work an injustice. . . . Arizona courts consider various factors to
determine whether the requisite unity of interest and ownership
exists, such as commingling of personal and corporate funds and
assets, failure to keep funds from various entities separate, and
unauthorized diversion of corporate funds or assets for non-corporate
purposes. . . . The doctrine of piercing the corporate veil is typically
applied when a plaintiff seeks recovery against the assets of a
corporate shareholder or director. . . . But courts have, in certain
instances where justice so required, applied the doctrine to reach a
non-shareholder, non-director party with unity of interest and
ownership to a tortfeasor.

Barba, CV 09-1115-PHX-SRB, 2009 WL 8747368. In alleging alter ego liability under
the pleading standard of Rule 8(a), the plaintiff must do more that make conclusory
statements regarding an alter ego relationship between individual and corporate

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defendants; the plaintiff must allege specific facts supporting application of the alter ego
doctrine. Whitney v. Wurtz, No. C045232 PVT, 2006 WL 83119, at *2 (N.D.Cal.
Jan.11, 2006) (finding complaint established a cognizable alter ego theory by alleging
individual defendants used assets of the corporation for their personal use, controlled,
dominated and operated corporation as their individual business and alter ego without
holding of director's or shareholder's meetings, and caused monies to be withdrawn
from the funds of defendant corporation and distributed to themselves without any
consideration to the corporation).
Moreover, an officer or shareholder need not be the sole shareholder to have unity
of control over a corporation. See Firstmark Capital Corp. v. Hempel Financial Corp.,
859 F.2d 92, 93 (9th Cir.1988) (defendant president and chief executive officer who
owned 95% of the stock in the corporation was found to have unity of control). There
is unity of control when a defendant CEO disregard[s] corporate formalities and use[s]
corporate funds for his own ... personal purposes ... [and] ma[kes] all the important
management decisions for [the corporation] including those that result[ ] in the corporate
activity that underlies the alter ego and fraud judgment. Id.
Similar to the plaintiffs allegations in Barba v. Seung Heun Lee, Plaintiffs are
alleging in this case that: Gorman had access to and used the resources of GEC, ACF,
ACN, and Brand (company resources) to post defamatory statements about Plaintiffs
(see SAC 10); Gorman hired and/or directed Brand, which is a reputation management
company, to post defamatory statements about Plaintiffs (see SAC 11); the company
resources utilized included shared hosting accounts, shared domain registrar accounts,
shared employees, and office addresses (see SAC 64); the comingling of the company

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resources has created a unity of interest and ownership between and among the
Defendant Companies such that the separate personalities of the Defendant Companies
no longer exist (see SAC 65); Gorman conspired with the other Defendants to transfer
assets and ownership interests in the Defendant Companies for no value, and/or less than
fair market value, with the intent to defraud Plaintiffs (see SAC 80); the Defendant
Companies all use the same staff, management, employees, web hosting accounts,
servers, and share the same type of business/transactions (see SAC 81); Gorman still
controls or is involved with the Defendant Companies (see SAC 84); and Defendants
have completely disregarded the corporate formalities relating to the Defendant
Companies (see SAC 85). Furthermore, as stated above, Plaintiffs have come forward
with additional facts in support of the allegations set forth in the SAC.
Accordingly, Plaintiffs have established a prima facie case that supporting
personal jurisdiction over the Defendants. Again, when considering all of the
circumstances, it appears that Gorman and ACN hired and/or used Brand as its agent to
complete the smear campaign against Plaintiffs. Brand, through Kinkar (its officer),
registered the Websites, hosted the Websites, and made the postings, including the
postings on ROR and Slideshare. Therefore, as alleged in the SAC, because Gorman and
ACN, by and through their hired agent (Brand), agreed to submit to the exclusive
jurisdiction of the federal and state courts in Arizona for purposes of litigation in
connection with ROR, all motions to dismiss should be denied.
In Arizona, to create an agency relationship, there must be a manifestation of
consent by the alleged principal to the alleged agent that the agent shall act on his behalf
and subject to his control and consent by the agent to act on behalf of the principal and

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subject to his control. Dawson v. Withycombe, 216 Ariz. 84, 163 P.3d 1034, 1050
(Ariz.Ct.App.2007). The Ninth Circuit has distinguished between the pleading
requirements for an agency relationship in non-fraud based claims under Rule 8(a) and
fraud based claims under Rule 9(b). Generally, as a matter of law, allegations of agency,
vicarious liability, and/or respondeat superior are not required in the complaint.
Greenberg v. Sala, 822 F.2d 882, 886 (9th Cir.1987). Thus, even if a plaintiff knows that
a defendant did not personally commit the wrongful act alleged, the plaintiff may allege
that the defendant is legally responsible for the act without going into the theories which
support the ultimate fact. Id. Just as the plaintiffs in Barba, the Plaintiffs in this case
were not required to plead facts supporting the elements of agency for their non-fraud
based claims. Barba, CV 09-1115-PHX-SRB, 2009 WL 8747368. In any event,
however, Plaintiffs did explain the basis for the agency liable and the roles of each
Defendant.
D. In the event the Court is unclear whether it has jurisdiction over the
Defendants, Plaintiffs respectfully request that the Court permit
Plaintiffs to engage in jurisdictional discovery.

The Court has broad discretion to permit or deny [jurisdictional] discovery. Calix
Networks, Inc. v. WiLan, Inc., No. C0906038CRB (DMR), 2010 WL 3515759, at *3
(N.D.Cal. Sept. 8, 2010) (quoting Laub v. U.S. Dep't of the Interior, 342 F.3d 1080, 1093
(9th Cir.2003)). [W]here pertinent facts bearing on the question of jurisdiction are
controverted or where a more satisfactory showing of the facts is necessary, discovery is
warranted. Id. A plaintiff need only present a colorable basis for jurisdiction in order to
obtain discovery, id. at *4 (citations omitted), and a court abuses its discretion in denying
discovery when it might well demonstrate jurisdictionally relevant facts, id. at *3

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(quoting Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122,
1135 (9th Cir.2003)).
Based upon the foregoing, Plaintiffs have alleged enough to raise a reasonable
expectation that discovery will produce evidence of an alter ego and/or agency
relationship among some or all Defendants, including to the extent there are questions
related to the forum selection clause at issue. Accordingly, in the event it is unclear
whether the Court has jurisdiction over some or all Defendants, Plaintiffs respectfully
request that the Court permit Plaintiffs to engage in jurisdictional discovery, including, as
to all facts and circumstances related to the hallmarks of alter ego among Defendants, as
well the agency relationship between and among Defendants, especially as such
relationship pertains to the posting on ROR and the agreement to the forum selection
clause at issue.
III. CONCLUSION.
WHEREFORE, based upon the foregoing, Plaintiffs respectfully request that the
Court enter an order denying the Motions and awarding such other and further relief as
the Court finds reasonable and necessary.
RESPECTFULLY SUBMITTED this 22nd day of September, 2014
KELLY / WARNER, PLLC

By: /s/ Daniel R. Warner
Daniel R. Warner, Esq.
8283 N. Hayden Road Suite 229
Scottsdale, Arizona 85258
Attorneys for Plaintiffs


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CERTIFICATE OF SERVICE

I hereby certify that, on the same date set forth above, I electronically transmitted
the foregoing document to the Clerks Office using CM/ECF System for filing and
distribution to the following registered participants of the CM/ECF System, who will also
be served copies of the attached document by U.S. first class mail or electronic mail:

Clarice A. Spiker
cspicker@jshfirm.com
Mark D. Zukowski
mzukowski@jshfirm.com
JONES, SKELTON & HOCULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Defendant Brand.com, Inc.

Alicyn M. Freeman
amf@bowwlaw.com
BROENING OBERG WOODS &
WILSON, P.C.
1122 East Jefferson
P. O. Box 20527
Attorneys for Defendants
Gorman Economics LLC, Sacha Gorman,
and At Cost Nutraceuticals LLC

William H. Doyle
WDoyle@doylelawgroup.com
THE DOYLE FIRM, P.C.
1313 East Osborn Road, Suite 220
Attorneys for Defendant Richard A. Gorman

Richard H. Rea
richard.rea@farmersinsurance.com
FARLEY, SELETOS & CHOATE
2400 West Dunlap, Suite 305
Attorneys for Defendant Vanguard Economics, LLC


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I hereby certify that, on the same date, I served the attached/foregoing document
by First Class United States Mail or electronic mail on the following, who are not
registered participants of the CM/ECF System:

N/A

/s/ Jill J. Loy
Employee Kelly / Warner, PLLC


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