Daugherty et al v. Adams et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In SupportN.D. Ga.September 15, 20161 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MICHAEL J. DAUGHERTY AND LABMD, INC. Plaintiff, v. JOEL P. ADAMS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil Action Case No. 1:16-cv-02480-LMM SPECIAL APPEARANCE AND MOTION OF DEFENDANTS TRUSTEES OF DARTMOUTH COLLEGE AND M. ERIC JOHNSON TO DISMISS PLAINTIFFS’ COMPLAINT Defendants Trustees of Dartmouth College (“Dartmouth”) and M. Eric Johnson (“Prof. Johnson”) (collectively, the “Dartmouth Defendants”) hereby move to dismiss Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(2) (Lack of Personal Jurisdiction), Fed. R. Civ. P. 12(b)(6) (Failure to State a Claim), Fed. R. Civ. P. 12(b)(3) (Improper Venue), and LR 7.1(A)(1). In support of their Motion, the Dartmouth Defendants respectfully rely on their accompanying Memorandum of Law, the final judgment entered as ECF No. 30 on May 20, 2013 in LabMD, Inc. v. Tiversa, Inc., et al, No. 1:11-cv-04044-JOF Case 1:16-cv-02480-LMM Document 66 Filed 09/15/16 Page 1 of 5 2 (N.D. Ga. 2011) [see also ECF Nos. 23-1, 24], and the Affidavits of M. Eric Johnson and Kevin D. O’Leary. Respectfully submitted this 15th day of September, 2016. s/ Richard K. Hines, V Richard K. Hines, V Georgia Bar No. 356300 richard.hines@nelsonmullins.com Jeffrey Mapen Georgia Bar No. 469936 jeff.mapen@nelsonmullins.com Peter L. Munk Georgia Bar No. 451809 peter.munk@nelsonmullins.com Attorneys for Trustees of Dartmouth College and M. Eric Johnson NELSON MULLINS RILEY & SCARBOROUGH LLP Atlantic Station 201 17th Street, NW / Suite 1700 Atlanta, GA 30363 (404) 322-6000 Case 1:16-cv-02480-LMM Document 66 Filed 09/15/16 Page 2 of 5 3 CERTIFICATE OF COMPLIANCE AS TO FONT SIZE Pursuant to the Civil Local Rules of Practice for the United States District Court for the Northern District of Georgia, this is to certify that the foregoing complies with the font and point selections approved by the Court in Local Rule 5.1C. The foregoing was prepared on computer using Times New Roman font (14 point). s/ Richard K. Hines, V Richard K. Hines, V Georgia Bar No. 356300 richard.hines@nelsonmullins.com Jeffrey Mapen Georgia Bar No. 469936 jeff.mapen@nelsonmullins.com Peter L. Munk Georgia Bar No. 451809 peter.munk@nelsonmullins.com Attorneys for Trustees of Dartmouth College and M. Eric Johnson NELSON MULLINS RILEY & SCARBOROUGH LLP Atlantic Station 201 17th Street, NW / Suite 1700 Atlanta, GA 30363 (404) 322-6000 Case 1:16-cv-02480-LMM Document 66 Filed 09/15/16 Page 3 of 5 4 CERTIFICATE OF SERVICE I hereby certify that I have this day served the within and foregoing Special Appearance and Motion of Defendants Trustees of Dartmouth College and m. Eric Johnson to Dismiss Plaintiffs’ Complaint with the Clerk of the Court using the CM/ECF System, which will send notification of such filing to all counsel of record, including the following: James W. Hawkins JAMES W. HAWKINS, LLC 11339 Musette Circle Alpharetta, GA 30009 Phone: (678) 697-1278 Fax: (678) 540-4515 jhawkins@jameswhawkinsllc.com This 15th day of September, 2016. s/ Richard K. Hines, V Richard K. Hines, V Georgia Bar No. 356300 richard.hines@nelsonmullins.com Jeffrey Mapen Georgia Bar No. 469936 jeff.mapen@nelsonmullins.com Peter L. Munk Georgia Bar No. 451809 peter.munk@nelsonmullins.com Attorneys for Trustees of Dartmouth College and M. Eric Johnson Case 1:16-cv-02480-LMM Document 66 Filed 09/15/16 Page 4 of 5 5 NELSON MULLINS RILEY & SCARBOROUGH LLP Atlantic Station 201 17th Street, NW / Suite 1700 Atlanta, GA 30363 (404) 322-6000 Case 1:16-cv-02480-LMM Document 66 Filed 09/15/16 Page 5 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MICHAEL J. DAUGHERTY AND LABMD, INC. Plaintiff, v. JOEL P. ADAMS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil Action Case No. 1:16-cv-02480-LMM MEMORANDUM IN SUPPORT OF SPECIAL APPEARANCE AND MOTION OF DEFENDANTS TRUSTEES OF DARTMOUTH COLLEGE AND M. ERIC JOHNSON TO DISMISS PLAINTIFFS’ COMPLAINT Richard K. Hines, V Georgia Bar No. 356300 richard.hines@nelsonmullins.com Jeffrey Mapen Georgia Bar No. 469936 jeff.mapen@nelsonmullins.com Peter L. Munk Georgia Bar No. 451809 peter.munk@nelsonmullins.com Attorneys for Trustees of Dartmouth College and M. Eric Johnson NELSON MULLINS RILEY & SCARBOROUGH LLP Atlantic Station 201 17th Street, NW / Suite 1700 Atlanta, GA 30363 (404) 322-6000 Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 1 of 40 1 Defendants Trustees of Dartmouth College (“Dartmouth”) and M. Eric Johnson (“Prof. Johnson”) (collectively, the “Dartmouth Defendants”) hereby file their Memorandum in Support of Special Appearance and Motion to Dismiss Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(2) (Lack of Personal Jurisdiction), Fed. R. Civ. P. 12(b)(6) (Failure to State a Claim), and Fed. R. Civ. P. 12(b)(3) (Improper Venue). I. PRELIMINARY STATEMENT For the third time in the past five years, LabMD, Inc. and its sole shareholder and CEO, Michael J. Daugherty, (collectively, “LabMD”) have filed suit against the Dartmouth Defendants for preparing a 2009 scholarly article, titled “Data Hemorrhages in the Health-Care Sector” (the “Dartmouth Paper”), that referenced a single, heavily-redacted page from a 1,718-page PDF document containing private patient information that LabMD admittedly made “available” through peer-to-peer file sharing software (the “1,718 File”). While LabMD has asserted slightly different causes of action in its three complaints, the core underlying facts remain the same. In this latest lawsuit, LabMD has forum-shopped its way back to the place where it all began: the Northern District of Georgia. Awaiting LabMD, however, is a final judgment precluding relitigation of personal jurisdiction over the Dartmouth Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 2 of 40 2 Defendants (the “Final Judgment”). Thus, LabMD’s long and convoluted Complaint (192 pages and 570 paragraphs), fails for one short and simple reason: res judicata. It is black letter law that LabMD cannot relitigate a jurisdictional issue already litigated and decided by a competent court. LabMD knows this. As a result, LabMD took the extraordinary step of moving to reopen the Final Judgment on the ground it is predicated on fraudulent statements made by Tiversa and its former counsel. LabMD makes no such allegations against the Dartmouth Defendants. Although the Court denied the motion to reopen the Final Judgment with right to re-file, LabMD filed the instant Complaint anyway, thereby orchestrating an end-run around this Court’s authority and attempting to grant itself the relief this Court correctly refused to confer. Even if not barred by res judicata, the Complaint should be dismissed because neither the Georgia long arm statute nor the Federal Due Process Clause confer jurisdiction over the Dartmouth Defendants. Alternatively, each and every substantive claim against the Dartmouth Defendants is (1) time-barred, and (2) unsupported by facts rising above the speculative level. Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 3 of 40 3 II. RELEVANT FACTS A. The Dartmouth Defendants Dartmouth is a college based in the State of New Hampshire and operating pursuant to a Royal Charter issued in 1769. (Affidavit of Kevin D. O’Leary (“O’Leary Aff.”) at ¶¶ 3-4 (attached as Ex. A).) Prof. Johnson is an individual who resided in the State of New Hampshire until Spring 2013. (Affidavit of M. Eric Johnson (“Johnson Aff.”) at ¶ 14 (attached as Ex. B).) Since then, Prof. Johnson has resided in the state of Tennessee where he serves as Ralph Owen Dean and Bruce D. Henderson Professor of Strategy at the Owen Graduate School of Management at Vanderbilt University. (Id. ¶ 15.) Among other things, neither Dartmouth nor Johnson have conducted any business in Georgia, engaged in a persistent course of conduct in Georgia, or derived substantial revenues from the rendition of services in Georgia that relate in any way to the allegations contained in the Complaint. (See O’Leary Aff. ¶ 6-17, 19; Johnson Aff. ¶¶ 3-10.) The Dartmouth Defendants have never owned Tiversa shares or had any other financial interest in the company. (See O’Leary Aff. ¶ 18; Johnson Aff. ¶¶ 12-13.) Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 4 of 40 4 B. Litigation History 1. The First Georgia Lawsuit (“Georgia I”)1 LabMD sued Tiversa and the Dartmouth Defendants for the first time in the Superior Court of Fulton County on October 19, 2011. In its Complaint, LabMD alleged violations of (1) the federal Computer Fraud and Abuse Act (18 U.S.C. § 1030), (2) the Georgia Computer Systems Protection Act (O.C.G.A. § 16-9-93), (3) conversion, and (4) trespass. [See Georgia I, ECF No. 1.] 2 On November 23, 2011, Defendants removed Georgia I to the United States District Court for the Northern District of Georgia, and the Dartmouth Defendants filed via special appearance a motion to dismiss the complaint for lack of personal jurisdiction (Fed. R. Civ. P. 12(b)(2)), improper venue (Fed. R. Civ. P. 12(b)(3)), and failure to state a claim (Fed. R. Civ. P. 12(b)(6)). [Id. at ECF Nos. 1 and 3.] On August 15, 2012, this Court granted the parties’ respective motions to dismiss, holding that “the court does not have personal jurisdiction over Defendants” and, on the same day, entered a Judgment dismissing LabMD’s claims. [See Georgia I, ECF No. 23-1 at 9 and ECF No. 24.] On February 5, 2013, the U.S. Court of Appeals for the Eleventh Circuit affirmed Judge Forrester’s 1 LabMD, Inc. v. Tiversa, Inc., et al, No. 1:11-cv-04044-JOF (N.D. Ga. 2011). 2 District courts in the Eleventh Circuit may take judicial notice of a public docket. Carter v. Killingsworth, 540 Fed. Appx. 912, 913 (11th Cir. 2013). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 5 of 40 5 order. See LabMD, Inc. v. Tiversa, Inc., 509 Fed. Appx. 842, 843 (11th Cir. 2013) (attached hereto as Ex. C). On May 20, 2013, after denying LabMD’s motion for reconsideration, the Eleventh Circuit entered its February 5, 2013 decision as the judgment in the case. [See Georgia I, ECF No. 30 (attached hereto as Ex. D).] 2. The Pennsylvania Lawsuit (“Pennsylvania Action”)3 On January 21, 2015-over a year and a half after its defeat in Georgia- LabMD resurfaced to file suit in the U.S. District Court for the Western District of Pennsylvania against Johnson, Tiversa, and Tiversa’s CEO, Robert J. Boback. [Pa. Action, ECF No. 1.] LabMD did not name Dartmouth as a party. Against Johnson, LabMD alleged (1) conversion, (2) defamation, (3) tortious interference with business relations, (4) civil conspiracy, and (5-6) violation of subsections (b) and (d) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) (18 U.S.C. § 1962). [See id.] On March 31, 2015, Johnson moved to dismiss LabMD’s complaint in the Pennsylvania Action. In her August 17, 2015 Report and Recommendation, U.S Magistrate Court Judge Maureen P. Kelly recommended that LabMD’s (1) conversion and RICO claims be dismissed with prejudice because they accrued by 2010 and were therefore time-barred; and (2) defamation, tortious interference with 3 LabMD, Inc., v. Tiversa Holding Corp., et al, No. 2:15-cv-00092 (W.D. Pa. 2015). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 6 of 40 6 business relations, and civil conspiracy claims be dismissed without prejudice for failure to state a claim. [Pa. Action, ECF No. 70.] Thus, Magistrate Judge Kelly dismissed all claims against Johnson. On January 8, 2016, U.S. District Court Judge Mark R. Hornak adopted the Report and Recommendation in full. [Id. at ECF No. 115.] On February 12, 2016, LabMD filed its First Amended Complaint, which omitted mention of Prof. Johnson altogether. [Id. at ECF No. 125.] On February 22, 2016, Judge Hornack denied LabMD’s Motion for Reconsideration. [Id. at ECF No. 130.] 3. The Current Litigation (“Georgia II”) a. LabMD’s Motion to Reopen Georgia I Seeking to outrun yet another unfavorable litigation result, this time in the Pennsylvania Action, LabMD has attempted to return to the Northern District of Georgia by filing a Motion to Reopen the first Georgia lawsuit [Georgia I, ECF No. 31]. The Court denied LabMD’s motion to set aside the judgment with the right to re-file; however, the Court granted a corresponding motion to permit limited discovery against Tiversa’s former counsel, but not as to the Dartmouth Defendants. [Id. at ECF No. 49.] 4 4 As further evidence that the Dartmouth Defendants are on the periphery of this litigation, LabMD failed to mention the Dartmouth Defendants even one time in its Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 7 of 40 7 b. Complaint Allegations The Dartmouth Paper sought to inform the public, industry, and government about the prevalence of inadvertent disclosures of private and confidential healthcare information through peer-to-peer networking. (See Compl., Ex. L.) Tiversa provided the Dartmouth Defendants certain findings from Tiversa’s monitoring of global peer-to-peer file sharing networks for examples of inadvertent disclosures. (Id. ¶ 163, Ex. L n.1.) Tiversa obtained the 1,718 File in February, 2008. (Compl. ¶¶ 150, 152, 334.) As LabMD has acknowledged, the 1,718 File “was inadvertently available on one of [LabMD’s] computers, because, unbeknownst to LabMD and in violation of company policy, P2P software was installed on a LabMD billing computer.” (Id. ¶ 175.) LabMD did not remove the “offending” P2P software until May 13, 2008. (Id. ¶ 214.) Tiversa provided the 1,718 File to the Dartmouth Defendants, and Prof. Johnson referred to it in the Dartmouth Paper as a “disturbing” example of private data made publicly available via P2P networks. (Id. ¶¶ 167, 195, 200, Ex. L n.1.) The Dartmouth Paper included a single, heavily redacted page of the 1,718 File, but did not disclose its source. (Id. at Ex. L Fig. 4.) September 6, 2016 Motion for Appointment of Special Master. [See Georgia I, ECF No. 52] Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 8 of 40 8 As it has in each lawsuit, LabMD alleges that Tiversa stole the 1,718 File. (Compl. ¶¶ 1, 150-59.) According to LabMD, this is standard practice for Tiversa, which allegedly obtains business by stealing documents from companies’ networks, claiming the documents were publicly available on the internet, and approaching the file owner to “fix” the alleged security breach. (Id. ¶¶ 4-6, 61.) LabMD alleges that each defendant, with the exception of Tiversa and Boback, conspired to use Tiversa’s technology to “search for and take files from computers all over the world, without the file owners’ knowledge or permission.” (Id. ¶ 143) According to LabMD, “Defendants” participated in this conspiracy for two reasons: to (1) “dupe the file owners and others into paying for” Tiversa’s services, and (2) “threaten and retaliate against the file owners who would not hire Tiversa.” (Id.) LabMD also alleges that “defendants” “continued advising and profiting from Tiversa” despite knowing of this alleged unlawful activity. (Id ¶ 148.) On September 30, 2010, LabMD sent separate letters to the Office of the General Counsel at Dartmouth and Prof. Johnson stating that it was “investigating the abuse and misappropriation of LabMD’s property that may have involved any number of legal infractions,” including, among others, “theft,” “extortion,” and “computer crime.” (Compl, Ex. Q at 1.) The “property” described was the 1,718 File. (Id.) LabMD specifically asked Dartmouth if it had “a financial or business Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 9 of 40 9 relationship with Tiversa or the FTC,” or was “involved in . . . a pattern of conduct, involving taking property like LabMD’s property in connection with attempts to solicit the property owners as clients.” (Id. at 2-3.) III. ARGUMENT AND CITATION TO AUTHORITIES A. The Complaint Should Be Dismissed Because the Issue of Personal Jurisdiction as to the Dartmouth Defendants is Res Judicata. LabMD is barred by the doctrine of collateral estoppel from relitigating the issue of personal jurisdiction in the state or federal courts of Georgia. The Complaint must therefore be dismissed. “The general principle of res judicata prevents the relitigation of issues and claims already decided by a competent court.” Cmty. State Bank v. Strong, 651 F.3d 1241, 1263 (11th Cir. 2011). “[I]t is well-settled that the doctrine of res judicata applies to jurisdictional questions.” Rubaii v. Lakewood Pipe of Tx, Inc., 695 F.2d 541, 543 (11th Cir. 1983). Thus, “a dismissal due to lack of personal jurisdiction acts as res judicata for the jurisdictional issue.” Posner v. Essex Ins. Co., Ltd, 178 F.3d 1209, 1221 (11th Cir. 1999); see also Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982) (“It has long been the rule that principles of res judicata apply to jurisdictional determinations-both subject matter and personal.”); Boone v. Kurtz, 617 F.2d Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 10 of 40 10 435, 436 (5th Cir. 1980) (“[A] second complaint cannot command a second consideration of the same jurisdictional claims.”). “Res judicata” can refer to either “claim preclusion (traditional ‘res judicata’)” or “issue preclusion (also known as ‘collateral estoppel’).” Cmty. State Bank, 651 F.3d at 1263. “[U]nlike res judicata, collateral estoppel does not require identity of the claim-so long as the issue was determined in the previous action . . . .”. Waldroup v. Greene Cnty. Hosp. Auth., 265 Ga. 864, 866 (1995). Generally speaking, it is collateral estoppel that “bars the relitigation of jurisdictional questions.” Richards v. Sen, 825 F. Supp. 2d 1259, 1262 (S.D. Fla. 2010) (citing N. Ga. Elec. Membership Corp. v. City of Calhoun, Ga., 989 F.2d 429, 432-33 (11th Cir. 1993)). Under Georgia law (which applies here), the party asserting collateral estoppel must show that “(1) an identical issue, (2) between identical parties, (3) was actually litigated and (4) necessarily decided, (5) on the merits, (6) in a final judgment, (7) by a court of competent jurisdiction.” Cmty. State Bank, 651 F.3d at 1263 (citing Body of Christ Overcoming Church of God, Inc. v. Bringson, 287 Ga. 485, 486 (2010)). Applying these seven factors ad seriatim, collateral estoppel unquestionably bars LabMD from relitigating personal jurisdiction. First, LabMD waived any argument that Judge Forrester lacked authority to decide the issue of personal Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 11 of 40 11 jurisdiction. Second, Georgia I and Georgia II involved identical parties- Dartmouth, Prof. Johnson, and LabMD. 5 Third, Georgia II raises the identical jurisdictional issue that was before Judge Forrester in Georgia I, i.e., whether the purported “theft” of the 1,718 File subjects the Dartmouth Defendants to long arm jurisdiction in Georgia, and whether the exercise of jurisdiction would comport with due process. [Georgia I, ECF No. 1 ¶¶ 46-53, 73-74, 139-148.] Fourth, the parties “actually litigated” the issue of personal jurisdiction in Georgia I because it was “properly raised” by the Dartmouth Defendants’ motion to dismiss, “submitted for determination” to this Court and the Eleventh Circuit, and “determined” by both courts. See Cmty. State Bank, 651 F.3d at 1267-68 (quoting Restatement of Judgments § 27, cmt. d). The issue was therefore “necessarily decided” by Judge Forrester and the Eleventh Circuit. See Tootle v. Player, 225 Ga. 431 (1969). Finally, the Eleventh Circuit entered a final judgment, on the merits, on May 20, 2013. See Rubaii, 695 F.2d at 543 (holding that a district court order dismissing for want of personal jurisdiction “operates as a final 5 Daugherty was not a party to Georgia I, but under Georgia law, a judgment “shall be conclusive between the same parties and their privies.” O.C.G.A. § 9-12-40 (emphasis added). As sole shareholder and CEO, Daugherty is unquestionably a “privy” to LabMD. See ALR Oglethorpe, LLC v. Henderson, 336 Ga. App. 739, 743 (2016) (“Privity may . . . be established if the party to the first suit represented the interests of the party to the second suit.”). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 12 of 40 12 judgment on the merits.”). The doctrine of collateral estoppel therefore bars LabMD from relitigating personal jurisdiction. To be sure, dismissal for want of personal jurisdiction does not preclude relitigation of the merits of the matter in a court of competent jurisdiction; it simply “bar[s] relitigation of the jurisdictional question.” N. Ga. Elec. Membership Corp., 989 F.2d at 432-33 (citing Boone, 617 F.2d at 436) (emphasis added). Federal Rule of Civil Procedure 41(b)-which states that an involuntary dismissal for lack of jurisdiction does not operate as an adjudication on the merits-does not command a different result. The Eleventh Circuit has adopted the reasoning that Rule 41(b) “mean[s] only that the dismissal permits a second action on the same claim that corrects the deficiency found in the first action,” and that “[t]he judgment remains effective as to preclude relitigation of the precise issue of jurisdiction or venue that led to the initial dismissal.” N. Ga. Elec. Membership Corp., 989 F.2d at 432-33 (quoting 18 Wright, Miller & Cooper, Fed. Prac. & Proc. Juris 2d, § 4436 (1982)) (emphasis added). LabMD was free to pursue its claims in a court with personal jurisdiction over the Dartmouth Defendants, but not here. See Posner, 178 F.3d at 1221 (“This holding does not preclude further litigation of these claims on the merits, but it does preclude that litigation from occurring in Florida.”). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 13 of 40 13 B. Even if the Final Judgment is Not Res Judicata, the Court Lacks Personal Jurisdiction Over the Dartmouth Defendants. 1. Legal Standard For Exercising Personal Jurisdiction The Court has personal jurisdiction over non-residents only if: (1) the Georgia long arm statute (O.C.G.A. § 9-10-91) confers personal jurisdiction over them; and (2) the exercise of such jurisdiction by the Court comports with constitutional due process. Paul, Hastings, Janofsky & Walker v. City of Tulsa, Okla., 245 F. Supp. 2d 1248, 1253 (N.D. Ga. 2002) (reversed on other grounds)). “The facts presented in the plaintiff’s complaint are taken as true to the extent they are uncontroverted,” but if “the defendant submits affidavits challenging the allegations in the complaint, the burden shifts back to the plaintiff to produce evidence supporting jurisdiction.” Exceptional Marketing Group, Inc. v. Jones, 749 F. Supp. 2d 1352, 1357 (N.D. Ga. 2010). 2. The Georgia Long Arm Statute Does Not Confer Personal Jurisdiction Over the Dartmouth Defendants, and Federal Due Process Does Not Command a Different Result. As has already been fully briefed by the parties and decided by this Court and the Eleventh Circuit, the Georgia long arm statute does not confer personal jurisdiction over the Dartmouth Defendants and, even if it did, the exercise of such jurisdiction would not comport with due process requirements. (See Ex. C); [Georgia I, ECF No. 23-1]. The Dartmouth Defendants have attached hereto Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 14 of 40 14 affidavits setting forth each fact upon which the lack of personal jurisdiction is premised. (See Exs. A & B.) 3. A “Conspiracy Theory” of Jurisdiction Does No Confer Personal Jurisdiction Over the Dartmouth Defendants. LabMD also attempts to establish jurisdiction over the Dartmouth Defendants under Georgia’s “conspiracy theory” of jurisdiction. In Georgia, “the in-state acts of a resident co-conspirator may be imputed to a non-resident co- conspirator to satisfy jurisdictional requirements under some circumstances . . . .” Rudo v. Stubbs, 221 Ga. App. 702, 703 (1996). Conspiracy jurisdiction does not confer jurisdiction over the Dartmouth Defendants because (1) no alleged co- conspirator is a resident of Georgia as required by Rudo; (2) LabMD cannot show independent satisfaction of due process requirements; and (3) the conspiracy allegations are merely conclusory. Id. a. The Co-Conspirator Responsible for the Alleged In-State Acts Must be a Georgia Resident. Rudo specifies that it is “the in-state acts of a resident co-conspirator” that “may be imputed to a non-resident co-conspirator.” 221 Ga. App. at 703. This is not dicta-multiple courts have adhered to the “resident requirement” in refusing to exercise conspiracy jurisdiction. U.S. District Court Judge Richard Story declined to exercise jurisdiction under a conspiracy theory because the individual Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 15 of 40 15 who was the alleged “lynchpin of Plaintiff’s conspiracy claims” was “not a Georgia resident.” J&D Intern. Trading (Hong Kong) Ltd. v. MTD Equipment, LLC, No. 1:13-CV-2526-RWS, 2014 WL 1683375, at *8 (N.D. Ga. April 28, 2014). Judge Story also found it relevant that plaintiff failed to allege that the other co-defendant’s agent “is a Georgia resident.” Id. at *8 n.11. Similarly, U.S. District Court Judge Clay D. Land declined to exercise jurisdiction under a conspiracy theory because the argument was “based on a single in-state act of a nonresident co-conspirator whose in-state act was not reasonably foreseeable by the other nonresident co-conspirator.” Iguana, LLC v. Lahnam, No. 7:08-CV-9 (CDL), 2012 WL 828698, at *3 (M.D. Ga. Mar. 9, 2012) (emphasis in original) (citing Hyperdynamics Corp. v. Southridge Capital Management, LLC, 305 Ga. App. 283, 294 (2010)). LabMD did not name a resident co-conspirator in this lawsuit. Each and every defendant in this case hails from a state other than Georgia. (See Compl. ¶¶ 22, 23, 28, 29, 32-34, 36-38, 41, 44-46, 48, 50, 52.) Based on the foregoing, a conspiracy theory of jurisdiction fails. b. Conspiracy Jurisdiction Will Not Lie For Imputed Acts. Georgia courts have “rejected a ‘conspiracy theory’ of jurisdiction where the plaintiff tried to rely on imputed acts to bypass the requirements of due process,” Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 16 of 40 16 lest “a defendant over whom the exercise of jurisdiction would be unfair be forced to defend the conspiracy charge on the merits in order to belatedly establish the court’s lack of jurisdiction over him.” Rudo, 221 Ga. App. at 704. “[T]he bare existence of a conspiracy is not enough to support long arm jurisdiction without a further showing of a ‘contact’ with the forum jurisdiction.” Coopers & Lybrand v. Cocklereese, 157 Ga. App. 240, 246 (1981). A “contact” is “purposefully sought activity with or in Georgia by the non-resident.” Id. “Thus, for conspiracy jurisdiction to obtain, the agreed upon activity must be directed toward Georgia.” Sprint Nextel Corp. v. ACE Wholesale, Inc., No. 1:12- cv-02902-JEC, 2014 WL 688134, at *7 (N.D. Ga. Feb. 21, 2014). Importantly, “the non-resident defendant must have known or should have known that the actions of his co-conspirators would be connected with the forum state.” Dixie Homecrafters, Inc. v. Homecrafters of Am., LLC, No. 1:08-CV-0469-JOF, 2009 WL 596009, at *7 (N.D. Ga. Mar. 5, 2009) (citing Rudo, 221 Ga. App. at 704) (emphasis added). In Cocklereese, for example, the Georgia Court of Appeals declined to exercise conspiracy jurisdiction because although the nonresident defendant knew “of the use of the . . . [allegedly fraudulent] audit in other states of the United States,” the evidence did not “show an intent to use the audit in Georgia.” 157 Ga. Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 17 of 40 17 App. at 246. The Georgia Court of Appeals later observed that it denied conspiracy jurisdiction in Cocklereese because there was no evidence that the non-resident defendants knew or should have known the audit would be used in Georgia; and without that knowledge, there was no purposefully sought activity with Georgia and no reasonable anticipation of being haled into court there. Rudo, 221 Ga. App. at 704. Here, LabMD cannot show that the Dartmouth Defendants purposefully sought contact with Georgia. Even if the Dartmouth Defendants somehow knew of Tiversa’s alleged unlawful activity (they did not, and LabMD has not plausibly alleged they did), LabMD does not claim that the Dartmouth Defendants knew that Tiversa was “targeting” a Georgia company. Indeed, Prof. Johnson never directed Tiversa to search for documents owned by residents of any particular state because the state of origin was irrelevant to his research. (Johnson Aff. ¶ 10.) As a result, the Dartmouth Defendants could not have reasonably anticipated being haled into Court in Georgia when their research partner, Tiversa, provided the 1,718 File to them. LabMD attempts to overcome this clear deficiency by alleging that Tiversa “targeted” several Georgia companies. (See Compl. ¶¶ 229-288.) Even if that were true, it does not change the result here because (1) LabMD does not allege that the Dartmouth Defendants were involved in any subsequent “targeting” (see generally Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 18 of 40 18 id.), and (2) even if the Dartmouth Defendants were aware of Tiversa’s alleged scheme (they were not), LabMD cannot show that the Dartmouth Defendants had any idea Tiversa’s “victims” were Georgia residents. Considering the global nature of P2P networks and the far-reaching capabilities of Tiversa’s technology, the fact any company happened to be in Georgia is clearly “random” and “fortuitous.” The Dartmouth Defendants cannot be liable for the imputed acts of Tiversa, and conspiracy jurisdiction therefore fails. c. LabMD’s Conspiracy Allegations are Conclusory. A plaintiff must provide more than “mere conclusory allegations of the nonresidents’ participation in a conspiracy with a resident.” Rudo, 221 Ga. App. at 704. Conspiracy jurisdiction will not obtain absent “evidence . . . upon which to infer an[] agreement to carry out the alleged Scheme in Georgia.” Sprint Nextel Corp., 2014 WL 688134, at *8. A finding of conspiracy jurisdiction requires “sufficient documentary evidence to show that Defendants engaged in a conspiracy . . . so as to warrant the exercise of personal jurisdiction . . . .” Hyperdynamics Corp., 305 Ga. App. at 295. As set forth more fully infra Part III.C, LabMD has failed to allege facts sufficient to state a claim for conspiracy against the Dartmouth Defendants. LabMD makes several bald conclusions concerning the Dartmouth Defendants’ Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 19 of 40 19 supposed complicity in Tiversa’s alleged unlawful conduct, but in the final analysis, fails to set forth plausible facts demonstrating the Dartmouth Defendants had any knowledge or understanding of the claimed indiscretions. Based on the facts alleged, LabMD cannot show that the Dartmouth Defendants were engaged in any pursuit other than researching, preparing, and promoting an academic article of great public interest. Because LabMD cannot show conspiracy jurisdiction, the Georgia long arm statute does not confer jurisdiction over the Dartmouth Defendants. This should end the inquiry. Even if the Court found that conspiracy jurisdiction existed here, such exercise of jurisdiction would not comport with due process and, thus, the Dartmouth Defendants would still not be subject to personal jurisdiction in Georgia. C. LabMD’s Claims Against the Dartmouth Defendants are Time-Barred. LabMD’s claims against the Dartmouth Defendants are also time-barred. “A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate if it is apparent from the face of the complaint that the claim is time-barred.” Alvarez v. U.S. Immigration and Customs Enforcement, 818 F.3d 1194, 1229 (11th Cir. 2016) (quotation omitted). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 20 of 40 20 1. Federal RICO Conspiracy (Count II) and Georgia RICO (Counts III, IV) RICO’s civil enforcement provisions are subject to a four year statute of limitations. Agency Holding Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 152-53 (1987). The statute of limitations for a Georgia RICO claim is five years. O.C.G.A. § 16-14-8. In the Pennsylvania Action, Judge Hornack adopted Magistrate Judge Kelly’s recommendation to dismiss as time-barred LabMD’s RICO claims as to Prof. Johnson on the ground the causes of action accrued in 2010. [Pa. Action, ECF No. 70 at 16 aff’d by ECF No. 115 at 8.] Magistrate Judge Kelly observed that by 2010, “LabMD knew of the injury it claims to have suffered and the parties who caused that injury even if it did not then know the precise methods used or motivation behind the injury.” [Id. at ECF No. 70 at 16.] The present lawsuit does not command a different result, as LabMD references in the Complaint a letter it sent Dartmouth on September 30, 2010 concerning its investigation into “theft,” “extortion,” and “computer crime,” and asking if Dartmouth was “involved in . . . a pattern of conduct” of “taking property like LabMD’s property in connection with attempts to solicit the property owners as clients . . . .” (Compl. ¶ 321, Ex. Q at 1, 3.) This very subject matter-known to LabMD in 2010-forms the basis of LabMD’s RICO claims. (See id. ¶¶ 1, 9, 15, 64-65, 160, 178, 186, 201, 218, 474, 498, 501-05 509.) Thus, on the face of the Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 21 of 40 21 complaint, LabMD’s RICO claims expired no later than 2014 and 2015, respectively. Counts II-IV are therefore time-barred as to the Dartmouth Defendants. 2. Computer Fraud and Abuse Act (Count V) and Georgia Computer Crimes (Count VI) A claim for civil violation of the CFAA must “beg[in] within 2 years of the date of the act complained of or the date of discovery of the damage.” 18 U.S.C. § 1030(g). A civil action arising under the Georgia Computer Systems Protection Act (“GCSPA”) “must be brought within four years after the violation is discovered or by exercise of reasonable diligence should have been discovered.” O.C.G.A. § 16-9-93(g)(4). Here, LabMD knew by May 13, 2008 that Tiversa had possession of the 1,718 File. (Comp. ¶¶ 174-76, Ex. F.) LabMD cannot reasonably dispute that the date of discovery accrued at least by 2011 because it brought these same claims in Georgia I. As a result, LabMD’s claims under the CFAA and GCSPA are time-barred. 3. Fraud (Count VII), Negligence (Count VIII), Fraudulent Misrepresentation (Count IX), Negligent Misrepresentation (Count X) A four year statute of limitation applies to actions resulting in damage to personal property, including actions sounding in fraud and negligence. O.C.G.A. § 9-3-31; see also Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316, 325 (2016) Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 22 of 40 22 (finding claims for fraud and negligent misrepresentation subject to four year limitations period). LabMD does not identify a single act carried out by Dartmouth after February 2009. (See Compl. ¶ 199.) Nor does LabMD allege learning about any act carried out by Dartmouth after February 2009. The statute of limitations therefore expired at the latest in 2014, meaning Counts VII-X should be dismissed. D. The Complaint Does Not Allege Sufficient Factual Matter to State a Claim Upon Which Relief Can be Granted. LabMD’s claims fail on the merits because the alleged facts set forth in the Complaint fail to rise above the speculative level. To avoid dismissal based on Fed. R. Civ. P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading containing mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Relevant to the RICO claims at issue here, Twombly specifically “forecloses any possibility” that mere “allegations of parallel conduct plausibly suggest a conspiracy.” American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1294 (11th Cir. 2010) (citing Twombly, 550 U.S. at 557). This is especially the case when there is an “obvious alternative explanation,” or the conduct “could just as well be Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 23 of 40 23 independent action.” Id. at 1294-95. In addition, “[c]ivil RICO claims, which are essentially a certain breed of fraud claims, must be pled with an increased level of specificity.” Ambrosia Coal & Const. Co. v. pages Morales, 482 F.3d 1309, 1316 (11th Cir. 2007). 1. Federal RICO Conspiracy (Count II) and Georgia RICO Conspiracy (Count IV) A plaintiff can establish a RICO conspiracy claim under 18 U.S.C. § 1962(d) by (1) “showing that the defendant agreed to the overall objective of the conspiracy; or (2) [] showing that the defendant agreed to commit two predicate acts.” Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 950 (11th Cir. 1997) (quotation omitted). Similarly, a party “may be found liable for violating O.C.G.A. § 16-14-4(c) if they knowingly and willfully join a conspiracy which itself contains a common plan or purpose to commit two or more predicate acts.” Rosen v. Protective Life Ins. Co., 817 F. Supp. 2d 1357, 1382 (N.D. Ga. 2011). LabMD asserts identical allegations to support its RICO and Georgia RICO conspiracy claims. Specifically, LabMD nakedly asserts that the Dartmouth Defendants “agreed and conspired to conduct and participate in the conduct of the affairs of the Enterprise” (id. ¶¶ 490, 517), and “knew that [its] predicate acts were part of a pattern of racketeering activity” (id. ¶¶ 491, 518). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 24 of 40 24 “After eliminating the wholly conclusory allegations of conspiracy” (see American Dental Ass’n, 605 F.3d at 1294), LabMD merely alleges that the Dartmouth Defendants contacted Tiversa to obtain additional research material (Compl. ¶ 166), received the 1,718 File from Tiversa (id. ¶¶ 167, 195), and published the Dartmouth Paper (id. ¶ 197). Not one of these “facts” is consistent with a common plan between the Dartmouth Defendants and any other defendant to commit a predicate act. These acts are, at most, “parallel conduct that could just as well be independent action.” American Dental Ass’n, 605 F.3d at 1294. Namely, each alleged fact is consistent with preparation of a scholarly article of great public interest. See Ambrosia Coal & Const. Co., 482 F.3d at 1316-17. 6 LabMD’s RICO conspiracy claims fail. 2. Georgia RICO (Count III) LabMD’s state RICO claims are subject to the same heightened pleading requirements as its federal RICO claims. Curtis Inv. Co., LLC v. Bayerische Hypo- und Vereinsbank, AG, 341 Fed. Appx. 487, 493 (11th Cir. 2009). 6 In addition, “[w]here a plaintiff fails to state a RICO claim and the conspiracy count does not contain additional allegations, the conspiracy claim necessarily fails.” Rogers v. Nacchio, 241 Fed. Appx. 602, 609 (11th Cir. 2007) (citing Jackson v. BellSouth Telecomm., 372 F.3d 1250 (11th Cir. 2007)). Thus, to the extent the underlying Federal RICO claim (Count I) is dismissed, the RICO Conspiracy claim must also be dismissed because it does not contain allegations substantively different from Count I (compare Compl. ¶ 434 with ¶ 490). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 25 of 40 25 a. The Dartmouth Defendants are Not Part of an Enterprise. Under Georgia RICO, an “enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct.” Chancey v. State, 256 Ga. 415, 417 (1986) (emphasis added). The enterprise “is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Id. A “common purpose” can be “pecuniary reward” (Martin v. State, 189 Ga. App. 483, 488 (1988)) or acts carried out for “mutual profit” (Brannon v. State, 243 Ga. App. 28, 32 (2000)). LabMD alleges that the defendants “were employed by or associated with an enterprise . . . ,” the “common purpose” of which “is to commercially benefit by making misrepresentations about data privacy and security breaches to unsuspecting customers . . . .” (Compl. ¶ 495 (emphasis added).) In addition, the defendants “intentionally and willingly devised and participated in a scheme to harm LabMD and Daugherty.” (Id. ¶ 497 (emphasis added).) LabMD also claims that the defendants sought to: “dupe the file owners and others into paying for services” (id. ¶ 143 (emphasis added)); “threaten and retaliate” against file owners (id. ¶ 143); and “profit[]” (id. ¶ 148 (emphasis added)) from Tiversa’s alleged deception. Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 26 of 40 26 There is no “common purpose” here because LabMD fails to plausibly allege why Dartmouth or Prof. Johnson would want to “threaten and retaliate” against LabMD. If the Dartmouth Defendants had wanted to “retaliate” against LabMD (for what, we will never know), they could have easily exposed the company in the Dartmouth Paper. They did not. (See Compl., Ex. L.) The Dartmouth Defendants had no financial stake whatsoever in Tiversa, making it entirely implausible they would risk their institutional and professional reputations to help Tiversa “profit” or “commercially benefit.” (See Ex. A ¶ 18; Ex. B ¶ 12.) As a result, Plaintiffs cannot show a common purpose between the Dartmouth Defendants and the alleged Enterprise. b. LabMD has not asserted a plausible predicate. A “racketeering activity,” also known as a “predicate act,” is the commission of or attempt to commit a “crime which is chargeable by indictment” under forty categories of offenses set forth in O.C.G.A. § 16-14-3(5)(A). Wylie v. Denton, 323 Ga. App. 161, 164 (2013). The Georgia RICO statute creates a civil cause of action for an individual injured by violation of one of these prohibited activities. O.C.G.A. § 16-14-6(c). Mere “passing references to multiple criminal statutes fail to satisfy the pleading requirements of Fed R. Civ. P. 8, and fail to set forth a Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 27 of 40 27 plausible entitlement to relief . . . .” Duncan v. CitiMortgage, Inc., No. 1:13-CV- 1493-TWT, 2014 WL 172228, at *10 (N.D. Ga. Jan. 15, 2014). LabMD alleges the Dartmouth Defendants committed various “Computer Crimes” under O.C.G.A. § 16-9-93, including Computer Theft (a), Computer Trespass (b), Computer Invasion of Privacy (c), and Computer Forgery (d). (Compl. ¶¶ 501-04.) LabMD also alleges the Dartmouth Defendants committed “Racketeering Activity” under O.C.G.A. § 16-14-3(5)(b) and (c). (Compl. ¶¶ 509- 10.) LabMD has failed to allege sufficient factual matter to support these purported predicate acts. i. Computer Crimes (O.C.G.A. § 16-9-93(a)-(d)) The Complaint is devoid of any fact showing beyond the speculative level that Dartmouth committed computer theft, trespass, invasion of privacy, or forgery (O.C.G.A. § 16-9-93(a)-(d)) “with knowledge,” or with “the intention” to engage in the prohibited conduct. See, e.g., O.C.G.A. § 16-9-93(a). LabMD’s asserted “Computer Crimes” fail on this independent ground. LabMD’s Computer Theft and Trespass claims also fail because, setting aside scienter, Dartmouth did not obtain the 1,718 File “without authority” as required under the statute. See O.C.G.A. § 16-9-93(a)-(b). Courts have consistently held that files located on publically available P2P networks, like the 1,718 File, Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 28 of 40 28 have no expectation of privacy. See, e.g., U.S. v. Dennis, No. 3:13-CR-10-TCB, 2014 WL 1908734, at *7 (N.D. Ga. May 12, 2014) (“[U]tilization of a peer-to-peer file-sharing program . . . negates any reasonable expectation of privacy in [] shared files.”). LabMD admits that until at least May 13, 2008, the “1,718 File was inadvertently available on one of its computers.” (Compl. ¶¶ 175, 214.) LabMD also admits that the Dartmouth Defendants received the 1,718 File “soon after April 28, 2008,” indicating the 1,718 File was still publicly available when received by the Dartmouth Defendants. (Id. ¶ 195.) The Dartmouth Defendants therefore could not have acquired the 1,718 “without authority” because it was publicly available at the time. As a result, Computer Theft and Trespass are not plausible predicate acts. Similarly, even if LabMD could overcome the scienter requirement incorporated into the Computer Forgery statute through O.C.G.A. § 16-9-1, it is not clear what, exactly, LabMD contends the Dartmouth Defendants “forged.” (Compl. ¶ 504.) Computer Forgery is not a plausible predicate act. ii. Racketeering Activity (O.C.G.A. § 16-14-3(B)-(C)) Subsection (B) expands the definition of “Racketeering activity” to include a variety of additional crimes “chargeable under the laws of the United States . . . or any state.” LabMD claims that the Dartmouth Defendants “received stolen Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 29 of 40 29 property, committed extortion, and or obstructed justice.” (Compl. ¶ 509.) Because LabMD cannot plausibly allege willful intent, however, it has failed to state a claim for any of the listed offenses because all require scienter. Subsection (C) expands “Racketeering activity” to include “any conduct defined as ‘racketeering activity’” under the Federal RICO statute. LabMD asserts “all of the Federal RICO Predicate Acts” set forth in Count I of the Complaint against the Dartmouth Defendants. (Compl. ¶ 510.) This is a clear attempt by LabMD to reassert by other means its time-barred Federal RICO claims against the Dartmouth Defendants. [See Pa. Action, ECF No. 130.] Regardless, LabMD has failed to allege sufficient factual matter to support these claims. In summary, LabMD has failed to plead a plausible predicate act. The Georgia RICO claim therefore fails as to the Dartmouth Defendants. c. There is No Nexus Between the Dartmouth Defendants’ Alleged Acts and LabMD’s Alleged Injury. “To have standing to bring a civil claim under Georgia’s RICO Act, a plaintiff must not only show a pattern of racketeering activity, but also ‘a direct nexus between at least one of the predicate acts listed under the RICO Act and the injury purportedly sustained.’” Functional Products Trading, S.A. v. JITC, LLC, No. 1:12-cv-0355, 2014 WL 3749213, at *4 (N.D. Ga. July 29, 2014) (quoting in part Schoenbaum Ltd. Co. v. Lenox Pines, LLC, 262 Ga. App. 457 (2003)). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 30 of 40 30 Plaintiffs cannot show that the Dartmouth Defendants’ alleged acts are causally related to LabMD’s injury. After all, it was Tiversa that obtained the 1,718 File and reported LabMD to the FTC, and the FTC that ultimately decided to investigate LabMD. LabMD does not allege that the Dartmouth Paper-which did not identify LabMD as the source of the 1,718 File-was the source of its alleged harm. Because there is no nexus between any alleged conduct of the Dartmouth Defendants and LabMD’s alleged injury, LabMD’s Georgia RICO claim fails as a matter of law. 3. Computer Fraud And Abuse Act (Count V) To the extent this Court does not determine that LabMD’s CFAA claims are time-barred, LabMD’s CFAA claims should also be dismissed because neither Dartmouth nor Johnson used any of LabMD’s information “without authority.” Pursuant to 18 U.S.C. § 1030(a), no violation of the CFAA occurs from the mere use of information available online. Courts have consistently held that files located on P2P networks, like the 1,718 File, cannot be accessed “without authorization.” See, e.g., Motown Record Co., L.P. v. Kovalcik, No. 07-CV-4702, 2009 WL 455137 (E.D. Pa. Feb. 23, 2009) (holding that, because the accessed files were located in a shared folder of a P2P network, “[n]o authorization was needed since the files accessed were accessible to the general public”). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 31 of 40 31 Here, LabMD acknowledges the information was publically available at least until May 13, 2008. (Id. ¶ 214.) As a result, the Dartmouth Defendants had authority to access these publically available files and LabMD’s claims under the CFAA should therefore be dismissed. 4. Georgia Computer Crimes (Count VI) LabMD fails to state a claim upon which relief can be granted for Georgia Computer Crimes for the same reason the alleged violation of this statute is not a predicate act for Georgia RICO purposes. (See supra Pt. III.B.2.b.i.) 5. Common Law Fraud (Count VII) and Fraudulent Misrepresentation (Count IX) A plaintiff must allege the following elements to state a claim for common law fraud under Georgia law: (1) a misstatement or omission, (2) of a material fact, (3) made with scienter, (4) on which plaintiff relies, (5) that proximately caused his injury. Keogler v. Drasnoff, 268 Ga. App. 250, 254 (2004). The elements of fraudulent misrepresentation under Georgia law are very similar. See Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App. 238, 240 (2007). LabMD claims that Dartmouth (1) “knew at the time” that their statements were untrue (Compl. ¶ 532); (2) made false statements with intent to deceive LabMD (id. ¶¶ 533, 535); and (3) that LabMD has relied upon those false representations to its detriment (id.¶ 534). As to the fraudulent misrepresentation Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 32 of 40 32 claim, LabMD alleges that Dartmouth made false statements “in an intentionally or grossly negligent manner.” (Id. ¶ 545.) By so doing, Dartmouth “breached [its] duty.” (Id. ¶ 548.) Moreoever, it “was reasonably foreseeable” that “others would rely on such false or incomplete information.” (Id. ¶ 549.) LabMD’s conclusory allegation that Dartmouth “lied” or otherwise knew of Tiversa’s alleged unlawful practices is insufficient to state a claim. LabMD alleges that Dartmouth used Tiversa as a research partner, received the 1,718 File, and published an article, but fails to provide any fact to show that Dartmouth knew of Tiversa’s alleged scheme, and was therefore deceptive or dishonest in any way. Nor can LabMD show that Dartmouth had any reason to make false representations. Absent a showing of willful intent, LabMD’s claims for common law fraud and fraudulent misrepresentation fails. In addition, LabMD did not rely on any statement made by Dartmouth to its detriment. In fact, Dartmouth never made any statement at all to LabMD. Even if it did, LabMD has failed to allege how or why it would have relied on such a statement. LabMD’s fraud claims therefore fail. 6. Common Law Negligence (Count VIII) and Negligent Misrepresentation (Count X) A plaintiff must allege the following elements to state a claim for common law negligence under Georgia law: (1) a legal duty; (2) a breach of the legal duty; Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 33 of 40 33 (3) a causal connection between the breach and the injury; and (4) injury caused by the breach. Fletcher v. Water Applications Distribution Group, Inc., 333 Ga. App. 693, 696 (2015). Negligent misrepresentation is closely related, requiring “negligent supply of false information to foreseeable persons,” “reasonable reliance,” and injury proximately resulting from such reliance. Home Depot U.S.A., Inc. v. Wabash Nat. Corp., 314 Ga. App. 360, 367 (2012) (quotation omitted). LabMD alleges that Dartmouth was negligent in (1) “not knowing that Tiversa and Boback’s fraudulent statements were lies,” and (2) “not conducting reasonable inquiries to determine the truth of those statements.” (Compl. ¶ 540.) In this same vein, LabMD claims that Dartmouth breached a duty by making false representations when it was reasonably foreseeable that LabMD would rely upon them. (Id. ¶¶ 557-58.) LabMD’s claims for negligence are no more compelling than its various claims alleging willful conduct. First, LabMD cannot show that Dartmouth owed any duty to LabMD in publishing an academic article. The “standard of conduct raised by the law” in this situation would appear to be libel, a claim for which the statute of limitations ran many years ago. LabMD cannot now pursue a libel action under the guise of common law negligence. Because there is no duty, there is no breach. This should end the inquiry. Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 34 of 40 34 But even if LabMD could satisfy the duty and breach requirements, it cannot demonstrate a causal connection between Dartmouth’s alleged breach and LabMD’s alleged injury. The Dartmouth Paper did not even name LabMD. (See Compl., Ex. L.) Any injury that arose appears to have resulted from the FTC’s investigation of LabMD. LabMD’s negligence claim therefore fails. LabMD’s negligent misrepresentation claim also fails because its first element, “negligent supply of false information” cannot be satisfied without an underlying duty, or a breach that caused harm. 7. Common Law Conspiracy (Count XI) LabMD’s civil conspiracy claim fails because it is not an “independent cause of action,” and each underlying claim fails. See Mabra v. SF, Inc., 316 Ga. App. 62, 66 (2012). 8. Attorneys’ Fees and Expenses (Count XII) Because neither 18 U.S.C. § 1964(c) nor O.C.G.A. § 13-6-11 creates an independent cause of action for attorneys’ fees, and LabMD’s claims fail in their entirety, the Court should dismiss Count XI. See 18 U.S.C. § 1964(c) (limiting recovery of reasonable attorney’s fees to “[a]ny person injured . . . by reason of a violation” of the statute) (emphasis added); Gardner v. Kinney, 230 Ga. App. 771, 772 (1998) (“OCGA § 13-6-11 does not create an independent cause of action.”). Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 35 of 40 35 E. Alternatively, the Court should Transfer to the United States District Court for the Western District of Pennsylvania. In the alternative-and only in the event the Court does not dismiss the Complaint in its entirety as to the Dartmouth Defendants-judicial economy, the “interest of justice,” and burden on the parties weigh in favor of transferring this matter to the United States District Court for the Western District of Pennsylvania, where the Pennsylvania Action is pending. See 28 U.S.C. §§ 1391, 1404. 7 IV. CONCLUSION For the reasons stated herein, the Court should dismiss the Complaint as to the Dartmouth Defendants. Respectfully submitted this 15th day of September, 2016. s/ Richard K. Hines, V Richard K. Hines, V Georgia Bar No. 356300 richard.hines@nelsonmullins.com Jeffrey Mapen Georgia Bar No. 469936 jeff.mapen@nelsonmullins.com Peter L. Munk Georgia Bar No. 451809 peter.munk@nelsonmullins.com Attorneys for Trustees of Dartmouth College and M. Eric Johnson 7 By moving for transfer, the Dartmouth Defendants do not waive their argument, asserted in the Pennsylvania Action, that the Pennsylvania court lacks personal jurisdiction over them. Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 36 of 40 36 NELSON MULLINS RILEY & SCARBOROUGH LLP Atlantic Station 201 17th Street, NW / Suite 1700 Atlanta, GA 30363 (404) 322-6000 Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 37 of 40 37 CERTIFICATE OF COMPLIANCE AS TO FONT SIZE Pursuant to the Civil Local Rules of Practice for the United States District Court for the Northern District of Georgia, this is to certify that the foregoing complies with the font and point selections approved by the Court in Local Rule 5.1C. The foregoing was prepared on computer using Times New Roman font (14 point). s/ Richard K. Hines, V Richard K. Hines, V Georgia Bar No. 356300 richard.hines@nelsonmullins.com Jeffrey Mapen Georgia Bar No. 469936 jeff.mapen@nelsonmullins.com Peter L. Munk Georgia Bar No. 451809 peter.munk@nelsonmullins.com Attorneys for Trustees of Dartmouth College and M. Eric Johnson NELSON MULLINS RILEY & SCARBOROUGH LLP Atlantic Station 201 17th Street, NW / Suite 1700 Atlanta, GA 30363 (404) 322-6000 Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 38 of 40 38 CERTIFICATE OF SERVICE I hereby certify that I have this day served the within and foregoing Memorandum in Support of Motion of Defendants Trustees of Dartmouth College and M. Eric Johnson to Dismiss Plaintiff’s Complaint with the Clerk of the Court using the CM/ECF System, which will send notification of such filing to all counsel of record, including the following: James W. Hawkins JAMES W. HAWKINS, LLC 11339 Musette Circle Alpharetta, GA 30009 Phone: (678) 697-1278 Fax: (678) 540-4515 jhawkins@jameswhawkinsllc.com This 15th day of September, 2016. s/ Richard K. Hines, V Richard K. Hines, V Georgia Bar No. 356300 richard.hines@nelsonmullins.com Jeffrey Mapen Georgia Bar No. 469936 jeff.mapen@nelsonmullins.com Peter L. Munk Georgia Bar No. 451809 peter.munk@nelsonmullins.com Attorneys for Trustees of Dartmouth College and M. Eric Johnson Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 39 of 40 39 NELSON MULLINS RILEY & SCARBOROUGH LLP Atlantic Station 201 17th Street, NW / Suite 1700 Atlanta, GA 30363 (404) 322-6000 Case 1:16-cv-02480-LMM Document 66-1 Filed 09/15/16 Page 40 of 40 Exhibit A Case 1:16-cv-02480-LMM Document 66-2 Filed 09/15/16 Page 1 of 5 Case 1:16-cv-02480-LMM Document 66-2 Filed 09/15/16 Page 2 of 5 Case 1:16-cv-02480-LMM Document 66-2 Filed 09/15/16 Page 3 of 5 Case 1:16-cv-02480-LMM Document 66-2 Filed 09/15/16 Page 4 of 5 Case 1:16-cv-02480-LMM Document 66-2 Filed 09/15/16 Page 5 of 5 Exhibit B Case 1:16-cv-02480-LMM Document 66-3 Filed 09/15/16 Page 1 of 5 Case 1:16-cv-02480-LMM Document 66-3 Filed 09/15/16 Page 2 of 5 Case 1:16-cv-02480-LMM Document 66-3 Filed 09/15/16 Page 3 of 5 Case 1:16-cv-02480-LMM Document 66-3 Filed 09/15/16 Page 4 of 5 Case 1:16-cv-02480-LMM Document 66-3 Filed 09/15/16 Page 5 of 5 Exhibit C Case 1:16-cv-02480-LMM Document 66-4 Filed 09/15/16 Page 1 of 5 LABMD, Inc. v. Tiversa, Inc., 509 Fed.Appx. 842 (2013) 293 Ed. Law Rep. 94 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 509 Fed.Appx. 842 (Table) Unpublished Disposition NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court's decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA11 Rule 36-2 and FI CTA11 Rule 36-3 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Eleventh Circuit. LABMD, INC., Plaintiff-Appellant, v. TIVERSA, INC., a Pennsylvania Corporation, Trustees of Dartmouth College, M. Eric Johnson, Defendants-Appellees. No. 12-14504 | Non-Argument Calendar. | Feb. 5, 2013. Synopsis Background: Georgia medical services corporation filed state court suit against Pennsylvania corporate provider of global peer-to-peer computer network intelligence and security services, trustees of New Hampshire college, and college professor, claiming trespass, conversion, and violations of Computer Fraud and Abuse Act and Georgia Computer Systems Protection Act, by accessing Georgia corporation's confidential document during search of peer-to-peer networks in preparation for professor's research article regarding medical and financial identity theft, after which Pennsylvania corporation sought to provide security services to Georgia corporation. Following removal, the United States District Court for the Northern District of Georgia granted defendants' motions to dismiss for lack of personal jurisdiction. Georgia corporation appealed. [Holding:] The Court of Appeals held that defendants were not subject to personal jurisdiction under Georgia's long- arm statute. Affirmed. West Headnotes (2) [1] Federal Courts Torts in general Federal Courts Fraud, racketeering, and deceptive practices Federal Courts Non-profit corporations and organizations Federal Courts Particular Relationships Pennsylvania corporate provider of global peer-to-peer computer network intelligence and security services, trustees of New Hampshire college, and college professor, who was resident of New Hampshire, did not commit tortious acts in Georgia, as required for exercise of personal jurisdiction under Georgia's long-arm statute, in Georgia corporation's lawsuit claiming trespass, conversion, and violations of Computer Fraud and Abuse Act and Georgia Computer Systems Protection Act by accessing Georgia corporation's confidential document during search of peer-to-peer networks in preparation for professor's research article regarding medical and financial identity theft, after which Pennsylvania corporation sought to provide security services to Georgia corporation, where professor and Pennsylvania corporation used computers outside of Georgia to open internet port on Georgia corporation's computer. 18 U.S.C.A. § 1030; West's Ga.Code Ann. §§ 9-10-91, 16- 9-90. 7 Cases that cite this headnote [2] Federal Courts Torts in general Federal Courts Fraud, racketeering, and deceptive practices Federal Courts Case 1:16-cv-02480-LMM Document 66-4 Filed 09/15/16 Page 2 of 5 LABMD, Inc. v. Tiversa, Inc., 509 Fed.Appx. 842 (2013) 293 Ed. Law Rep. 94 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Particular Relationships Pennsylvania corporate provider of global peer-to-peer computer network intelligence and security services, trustees of New Hampshire college, and college professor who was resident of New Hampshire did not regularly solicit business in Georgia and commit tortious injury in Georgia by tortious act or omission outside Georgia, as required for exercise of personal jurisdiction under Georgia's long-arm statute, in lawsuit by Georgia corporation claiming trespass, conversion, and violations of Computer Fraud and Abuse Act and Georgia Computer Systems Protection Act by accessing Georgia corporation's confidential document during search of peer-to-peer networks to assist professor in writing research article regarding medical and financial identity theft, even though Pennsylvania corporation then solicited business from Georgia corporation, where Pennsylvania corporation was not registered to do business in Georgia, had no employees or customers in Georgia, derived no revenue from business in Georgia, owned no Georgia property, paid no Georgia taxes, made only one phone call and sent nine e- mails to Georgia corporation over course of two months, and had website that advertised business but did not offer products or services for purchase online or target Georgia residents. 18 U.S.C.A. § 1030; West's Ga.Code Ann. §§ 9-10-91, 16-9-90. 7 Cases that cite this headnote Attorneys and Law Firms *843 Stephen F. Fusco, Labmd, Inc., Atlanta, GA, for Plaintiff-Appellant. John C. Hansberry, Richard M. Weibley, Pepper Hamilton, LLP, Pittsburgh, PA, Andrew G. Phillips, Mcguire Woods, LLP, Richard K. Hines, Jeffrey L. Mapen, II, Nelson Mullins Riley & Scarborough, LLP, Atlanta, GA, for Defendants-Appellees. Appeal from the United States District Court For the Northern District of Georgia. D.C. Docket No. 1:11-cv- 04044-JOF. Before CARNES, BARKETT, and EDMONDSON, Circuit Judges. Opinion PER CURIAM: **1 LabMD, Inc., a Georgia corporation, appeals the dismissal of its diversity lawsuit for lack of personal jurisdiction over Defendants Tiversa, Inc. (a Pennsylvania corporation), Trustees of Dartmouth College (a New Hampshire college), and M. Eric Johnson (a New Hampshire resident). No reversible error has been shown; we affirm. LabMD's complaint arose out of an article written by Johnson-a Dartmouth professor-entitled “Data Hemorrhages in the Health-Care Sector.” Johnson worked in collaboration with Tiversa, a company that monitors global peer-to-peer network searches and provides peer-to-peer intelligence and security services. 1 In preparing the article, Johnson and Tiversa searched peer-to-peer networks looking for computer files containing data that could be used potentially to commit medical or financial identity theft. As part of their search, Johnson and Tiversa found a 1,718-page document that contained patient social security numbers, insurance information, and treatment codes (the “1,718 File”). LabMD alleges that the 1,718 File was created and stored on a LabMD computer and was the personal property of LabMD. Tiversa later called LabMD to notify LabMD that it had discovered the 1,718 File. That same day, Tiversa sent LabMD three emails following up on the phone call and offering its intelligence and security services to LabMD. Over the next two months, Tiversa sent six more emails soliciting business from LabMD. LabMD filed this lawsuit against Defendants in the Superior Court of Fulton County, Georgia, asserting claims for trespass, conversion, and violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Georgia Computer Systems Protection Act, O.C.G.A. § 16-9-90. Defendants removed the case to Case 1:16-cv-02480-LMM Document 66-4 Filed 09/15/16 Page 3 of 5 LABMD, Inc. v. Tiversa, Inc., 509 Fed.Appx. 842 (2013) 293 Ed. Law Rep. 94 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 the District Court for the Northern District of Georgia. The district court later granted Defendants' motions to dismiss, concluding that it lacked personal jurisdiction over *844 Defendants under Georgia's long-arm statute, O.C.G.A. § 9-10-91. We review de novo a district court's dismissal of a complaint for lack of personal jurisdiction. Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir.2005). “A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction.” Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Cir.2010). To determine whether personal jurisdiction exists over a nonresident defendant, we must decide whether the exercise of jurisdiction is appropriate under the state's long-arm statute. Georgia's long-arm statute provides that Georgia courts may exercise personal jurisdiction over a nonresident defendant if, among other things, the nonresident “(2) [c]ommits a tortious act or omission within [Georgia]” or “(3) [c]ommits a tortious injury in [Georgia] caused by an act or omission outside [Georgia] if the tort- feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in [Georgia].” O.C.G.A. § 9-10-91(2), (3). We interpret and apply Georgia's long-arm statute “in the same way as would the Georgia Supreme Court.” Diamond Crystal Brands, Inc., 593 F.3d at 1258. **2 LabMD contends that Defendants are subject to personal jurisdiction under subsection (2) of Georgia's long-arm statute because Defendants used peer-to-peer software to open a Transmission Control Protocol/ Internet Protocol port on a LabMD computer that was located physically in Georgia. Because Defendants caused a port to open on the Georgia computer being searched, LabMD contends that Defendants' tortious act took place in Georgia even though Defendants were outside Georgia when they searched for and downloaded the 1,718 File. For purposes of personal jurisdiction under Georgia's long-arm statute, Georgia courts have ruled that-when a defendant uses the telephone or email to contact a Georgia resident-defendant's conduct occurs at the place where defendant speaks into the telephone or types and sends his email. See Anderson v. Deas, 279 Ga.App. 892, 893-94, 632 S.E.2d 682 (Ga.Ct.App.2006) (no personal jurisdiction existed over a defendant who made harassing telephone calls to a Georgia resident from another state); Huggins v. Boyd, 304 Ga.App. 563, 565, 697 S.E.2d 253 (Ga.Ct.App.2010) (concluding-based on Anderson-that no personal jurisdiction existed over a nonresident defendant who emailed Georgia residents). [1] For the long-arm statute, we see no meaningful distinction between the technology used to place telephone calls or send emails and the technology used in peer-to- peer file sharing. In all cases, the technology causes the transmission of information along telephone or electronic lines between an out-of-state defendant and a Georgia resident. See Anderson, 279 Ga.App. at 893-94, 632 S.E.2d 682; Huggins, 304 Ga.App. at 565, 697 S.E.2d 253. That peer-to-peer software causes a port to open on another computer is not unique: telephone calls also require a connection to the receiving phone line before the transmission of information can occur. The conduct giving rise to Defendants' alleged offense occurred where Johnson and Tiversa used computers to access the 1,718 File. Because Johnson and Tiversa used computers outside of Georgia, Defendants *845 are not subject to personal jurisdiction under subsection (2). LabMD also contends that Defendants are subject to personal jurisdiction under subsection (3) of Georgia's long-arm statute. LabMD argues that Tiversa “regularly solicited business” in Georgia because, over the course of two months, Tiversa made one phone call to LabMD once and sent nine emails offering Tiversa's services. 2 Georgia's long-arm statute “requires that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction.” Gust v. Flint, 257 Ga. 129, 130, 356 S.E.2d 513 (Ga.1987). In determining whether a nonresident defendant may be subject to personal jurisdiction under subsection (3), Georgia courts consider many factors including-but not limited to-whether a defendant (1) regularly does business or solicits business within Georgia; (2) engages in a persistent course of conduct within Georgia; (3) derives substantial revenue from services rendered within Georgia; (4) has employees located within Georgia; or (5) is authorized to do business in Georgia. Id. at Case 1:16-cv-02480-LMM Document 66-4 Filed 09/15/16 Page 4 of 5 LABMD, Inc. v. Tiversa, Inc., 509 Fed.Appx. 842 (2013) 293 Ed. Law Rep. 94 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 129, 356 S.E.2d 513 (no personal jurisdiction existed over nonresident defendant who advertised in a trade paper, negotiated a sale over the phone, and accepted a deposit check from a Georgia resident); ETS Payphone v. TK Indus., 236 Ga.App. 713, 715-16, 513 S.E.2d 257 (Ga.Ct.App.1999) (no personal jurisdiction existed over nonresident defendant who visited Georgia once and negotiated a contract via telephone, mail, and fax). Other factors weighing against a finding of personal jurisdiction are when a defendant's contact with Georgia is limited to a single business transaction and when that transaction is conducted via telephone. See Gust, 257 Ga. at 129, 356 S.E.2d 513. **3 [2] Tiversa is not registered to do business in Georgia, has no employees or customers in Georgia, derives no revenue from business activities in Georgia, owns no Georgia property, and pays no Georgia taxes. Tiversa's contact with Georgia consisted of one phone call and nine emails to LabMD. Such contact is not enough under Georgia law to subject Tiversa to personal jurisdiction in Georgia courts. See Gust, 257 Ga. at 130, 356 S.E.2d 513; ETS Payphone, 236 Ga.App. at 715-16, 513 S.E.2d 257. LabMD also argues that personal jurisdiction exists over Tiversa because Tiversa maintains a website that is accessible to Georgia residents. But Tiversa's website merely advertises Tiversa's services, does not offer products or services for purchase online, and does not target Georgia residents. Thus, Tiversa's website does not subject Tiversa to personal jurisdiction in Georgia's courts. See Smith v. Air Ambulance Network, 207 Ga.App. 75, 75, 427 S.E.2d 305 (Ga.Ct.App.1993) (explaining that the “mere placement of advertisements in Georgia would be insufficient to authorize the exercise of personal jurisdiction” under Georgia's long-arm statute). And, although Tiversa's business involves the global searching of computer networks, this circumstance alone is also not enough to establish personal jurisdiction. LabMD failed to demonstrate personal jurisdiction under Georgia's long-arm statute. *846 We need not decide anything else in this case. AFFIRMED. All Citations 509 Fed.Appx. 842 (Table), 2013 WL 425983, 293 Ed. Law Rep. 94 Footnotes 1 Peer-to-peer networks allow users to place shared computer files in folders that are open for other users to search via the internet. 2 LabMD also argues that, as co-conspirators, Johnson and Dartmouth are subject to personal jurisdiction to the same extent as Tiversa. Because no personal jurisdiction exists over Tiversa, LabMD cannot show that Johnson or Dartmouth are subject to personal jurisdiction under subsection (3). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:16-cv-02480-LMM Document 66-4 Filed 09/15/16 Page 5 of 5 Exhibit D Case 1:16-cv-02480-LMM Document 66-5 Filed 09/15/16 Page 1 of 3 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303 John Ley Clerk of Court May 20, 2013 For rules and forms visit www.ca11.uscourts.gov James N. Hatten Richard B. Russell Bldg & US Courthouse 75 SPRING ST SW STE 2211 ATLANTA, GA 30303-3309 Appeal Number: 12-14504-AA Case Style: LabMD, Inc. v. Tiversa, Inc., et al District Court Docket No: 1:11-cv-04044-JOF The enclosed judgment is hereby issued as the mandate of this court. A copy of this letter, and the judgment form if noted above, but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued. Sincerely, JOHN LEY, Clerk of Court Reply to: Elora Jackson Phone #: (404) 335-6173 Enclosure(s) MDT-1 Letter Issuing Mandate Case: 12-14504 Date Filed: 05/20/2013 Page: 1 of 1 Case 1:11-cv-04044-JOF Document 30 Filed 05/20/13 Page 1 of 2Case 1:16-cv-02 80-LMM Docu ent 66-5 Filed 09/15/16 Page 2 of 3 UNITED STATES COURT OF APPEALS For the Eleventh Circuit ______________ No. 12-14504 ______________ District Court Docket No. 1:11-cv-04044-JOF LABMD, INC., Plaintiff - Appellant, versus TIVERSA, INC., a Pennsylvania Corporation, TRUSTEES OF DARTMOUTH COLLEGE, M. ERIC JOHNSON, Defendants - Appellees. __________________________________________ Appeal from the United States District Court for the Northern District of Georgia __________________________________________ JUDGMENT It is hereby ordered, adjudged, and decreed that the opinion issued on this date in this appeal is entered as the judgment of this Court. Entered: February 05, 2013 For the Court: John Ley, Clerk of Court By: Jeff R. Patch Case: 12-14504 Date Filed: 05/20/2013 Page: 1 of 1 Case 1:11-cv-04044-JOF Document 30 Filed 05/20/13 Page 2 of 2Case 1:16-cv-02 80-LMM Docu ent 66-5 Filed 09/15/16 Page 3 of 3