Seidl v. Greentree Mortgage Complaint

DISTRICT COURT, COUNTY OF BOULDER, STATE OF COLORADO

Case No. Division

VERIFIED COMPLAINT
MATTHEW L. SEIDL,
Plaintiff

v.

GREENTREE MORTGAGE COMPANY,
Defendant

Plaintiff Matthew L. Seidl (hereinafter referred to for convenience as Mr. Seidl) complains against Defendant Greentree Mortgage Company (hereinafter referred to for convenience as Defendant) as follows:

1. Plaintiff Matthew L. Seidl is an individual residing at 1034 Grant Street, Longmont, Colorado 80501.

2. Defendant Greentree Mortgage Company is a Limited Partnership with a principal place of business at 1005 Atriums & Greentree, Marleton, N.J. 08053, and is duly registered to do business in the State of Colorado. Defendant is not engaged in military service. The tortious acts complained of by Mr. Seidl were committed by Defendant within the County of Boulder
in the State of Colorado. Accordingly, venue and jurisdiction are proper in this Court.

3. The Internet is a worldwide network of computers through which businesses and individuals can send various forms of communications, including electronic mail (e-mail).

4. Communications on the Internet by e-mail are made using e-mail addresses. An e-mail address is generally composed of a name, and a domain name, plus an industry designation. An example of an e-mail address is "name@domain.com", where "name" is an identifier selected by the user, "domain" is a unique identifier which designates a set of computers on
the Internet (in the same way that a street address designates a physical location), and "com" indicates that the user is a commercial network as opposed to an educational network ("edu") or a military network ("mil"). It is common for individuals to have more than one e-mail address.

5. A domain name can be obtained by applying via e-mail to Network Solutions, Inc. (NSI), a private company which has contracted with the government to process domain name applications. NSI awards domain names on a first-come first-served basis, and will assign a domain name as long as it has not already been assigned to someone else. NSI maintains a publicly-accessible database of registered domain names. Any person can access that database through the Internet. The database will display the name, address, telephone number and an e-mail address of the person or organization to which such domain is registered.

6. The domain name "localhost.com" has been registered to Mr. Seidl, through Mr. Seidl's business name "Wraith Interprises", since May 14, 1995. A search of NSI's database reveals that such domain name is in fact registered to Mr. Seidl, and provides Mr. Seidl's name, address, telephone number and personal e-mail address. This system has an administrative
address of "nobody at localhost.com" which is used to forward e-mail to the administrator of the localhost.com domain, Mr. Seidl. On information and belief, using such an administrative address is common industry practice.

7. On information and belief, e-mail is increasingly used as a vehicle for commercial advertisement because it is simple and inexpensive for an advertiser to distribute a message to thousands of people simultaneously. The practice of sending large volumes of unsolicited e-mail advertisements is commonly referred to as "spamming". An individual message of this
kind is referred to as "spam". Spamming is a controversial practice which is considered to be intrusive and unethical by large segments of the Internet community. It is a common practice for recipients of spam to reply to spam angrily, often using profanity, insults and threats.

8. On or about January 13, 1997 an unsolicited bulk commercial advertisement, or spam, was sent by e-mail, through the Internet, to thousands of people, advertising the services of Greentree Mortgage Company.

9. The aforementioned spam contained false information. Namely, the "from" address (hereinafter referred to for convenience as "from-address"), which shows the e-mail address of the sender of the message, was altered to show that the message was sent by "nobody@localhost.com". The "return-path" was also altered. A "return-path" is a numeric code which tells the computer where to direct undeliverable messages and responses sent using the "Reply" function built into most electronic mail programs. The reply function enables
the recipient of an e-mail message to send a reply to that message simply by pressing the "Reply" button. In the instant case, the return-path was altered so that computers throughout the Internet would direct undeliverable mail and replies to this particular message to "nobody@localhost.com".

10. On information and belief, a user's computer is generally configured to automatically display the actual e-mail address and return path of the legitimate sender. This information must be altered manually and deliberately in order to simulate a different from-address or return path. In short, the spam e-mail messages purported to have come from Mr. Seidl's domain but did not; the messages were deliberately made by Defendant to appear to have come from Mr. Seidl's domain instead of from Defendant.

11. "Nobody@localhost.com" is an e-mail address which belongs to Mr. Seidl, and localhost.com is Mr. Seidl's domain name duly registered with NSI. At no time has Mr. Seidl consented to the use of nobody@localhost.com or of localhost.com by Defendant for any purpose.

12. As a result of Defendant's alteration of the from-address and return-path, over 7,000 messages were sent to Mr. Seidl's nobody@localhost.com e-mail address, totaling over 31 « megabytes of memory. These messages included angry replies from recipients of the spam. Many replies included profanities and insults and threatened retaliation should spam ever be received from Mr. Seidl again.

13. As a result of the large volume of e-mail received by Mr. Seidl because of Defendant's spam, the processing capacity of Mr. Seidl's computer system was fully taxed and occupied continuously for a period of approximately 3 days. Mr. Seidl did not have access to his computer for his own purposes during this time. Thereafter, Mr. Seidl continued to receive numerous messages, in decreasing numbers, for a period of about one week, during which time Mr. Seidl's access to the processing capacity of his computer system was limited to varying degrees. After that time, isolated messages were received by Mr. Seidl from time to time for a period of several weeks.

14. Immediately upon learning that his e-mail address was being used in Defendant's spam, Mr. Seidl contacted Defendant and asked Defendant to halt the mailing in order to minimize his damages. Mr. Seidl spoke by telephone to various people within Defendant's organization who confirmed Defendant's involvement with the spamming, but did not stop the mailing and would not accept responsibility for damage done to Mr. Seidl.

15. Mr. Seidl subsequently contacted Defendant in writing, through counsel, seeking to resolve this matter. This letter was responded to by telephone by one "Mark VanKeuren" who admitted to sending the spam but refused to disclose his relation to Defendant. Mr. "VanKeuren" refused to address Mr. Seidl's damages. No other response was received from Defendant.

First Claim - Deceptive Trade Practices Act - C.R.S. 6-1-105

16. Mr. Seidl incorporates by reference the allegations set forth in paragraphs 1 through 15.

17. By sending spam with the from-address and return-path falsified to read
"nobody@localhost.com", Defendant knowingly passed off its spam as that of Mr. Seidl in violation of C.R.S. 6-1-105(1)(a).

18. By sending spam with the from-address and return-path falsified to read
"nobody@localhost.com", Defendant falsely represented that Mr. Seidl was the source of, or sponsored, approved or certified the goods, services or property, including Defendants practice of spamming, in violation of C.R.S. 6-1-105(1)(b).

19. By sending spam with the from-address and return-path falsified to read
"nobody@localhost.com", Defendant knowingly and falsely represented that Mr. Seidl was affiliated, connected or associated with Defendant's services or spamming practices in violation of C.R.S. 6-1-105 9 (c) and (e).

20. Mr. Seidl was damaged by Defendant's violations of C.R.S. 6-1-105. Pursuant to C.R.S. 6-1-113, Mr. Seidl is entitled to receive compensation from Defendant at three times the amount of actual damages sustained or two hundred and fifty dollars, whichever is greater, and the costs of the action together with reasonable attorney fees as determined by the court.

Second Claim - Trespass to Chattel

21. Mr. Seidl incorporates by reference the allegations set forth in paragraphs 1 through 20.

22. Defendant's actions caused thousands of e-mail messages to be delivered to Mr. Seidl's computer during the course of several days. During that time, the processing capacity of Mr. Seidl's computer was fully taxed and occupied processing this data. As a result, Mr. Seidl was unable to use his computer system for his own purposes for three full days. Thereafter, Mr. Seidl's use of his computer system remained limited for a period of several weeks.

23. Defendant knew that Defendant was not the registered owner of the domain name "localhost.com" at the time of the spamming. Further, as it is easy to determine whether a particular domain name is registered to someone or remains available, Defendant either knew or should have known that localhost.com was registered to Mr. Seidl and that e-mail sent to any name at that domain name would be sent to Mr. Seidl.

24. Defendant's actions, which were either intentional or negligent, resulted in unjustified interference with Mr. Seidl's possession and use of Mr. Seidl's own computer system, and therefore constitute a trespass to Mr. Seidl's chattel.

25. Mr. Seidl suffered damages as a result of Defendant's trespass, for which damages Mr.Seidl is entitled to receive compensation from Defendant.

Third Claim - Negligence

26 Mr. Seidl incorporates by reference the allegations set forth in paragraphs 1 through 25.

27. By sending spam with Mr. Seidl's from-address and return-path falsified therein, Defendant engaged in activities which a reasonably prudent and careful person would not have engaged in under similar circumstances and was therefore negligent.

28. Mr. Seidl incurred damages as a result of Defendant's negligence for which damages Mr. Seidl is entitled to receive compensation from Defendant.

Fourth Claim - Negligence Per Se

29. Mr. Seidl incorporates by reference the allegations set forth in paragraphs 1 through 28.

30. At the time of the spamming, the following statute of the State of Colorado was in effect:

18-5.5-102. Computer crime.

(1) Any person who knowingly uses any computer, computer system, computer network, or any part thereof for the purpose of devising or executing any scheme or artifice to defraud; obtaining money, property, or services by means of false or fraudulent pretenses, representations, or promises; using the property or services of another without authorization; or committing theft commits computer crime.

(2) Any person who knowingly and without authorization uses, alters, damages, or destroys any computer, computer system, or computer network described in section 18-5.5-101 or any computer software, program, documentation, or data contained in such computer, computer system, or computer network commits computer crime.

31. One of the purposes of this statute is to protect against the type of injuries that Mr. Seidl sustained. Mr. Seidl is a member of the group of persons the statute is intended to protect.

32. Defendant's conduct was violative of this statute and was the cause of Mr. Seidl's injuries. Such conduct was therefore negligent per se.

33. Mr. Seidl was damaged by Defendant's negligence per se and is entitled to receive compensation for such damages from Defendant.

Fifth Claim - Negligent Hiring

34. Mr. Seidl incorporates by reference the allegations set forth in paragraphs 1 through 33.

35. Defendant negligently failed to use due care when selecting a bulk e-mailer for the purpose of sending spam. Had Defendant employed reasonable care, Defendant would have selected a responsible and ethical bulk-mailer who would not have engaged in the practice of falsifying data contained in commercial advertisement. Accordingly, damage to Mr. Seidl
would not have occurred.

36. Defendant's negligent selection of a bulk e-mailer resulted in damage to Mr. Seidl for which damage Mr. Seidl is entitled to seek compensation from Defendant.

Sixth Claim - Invasion of Mr. Seidl's Privacy Right of Publicity

37. Mr. Seidl incorporates by reference the allegations set forth in paragraphs 1 through 36.

38. By using Mr. Seidl's domain and e-mail address without Mr. Seidl's consent, and sending e-mail to thousands of people linking Mr. Seidl to Defendant's services or spamming practices, Defendant appropriated Mr. Seidl's name or likeness for commercial gain and invaded Mr. Seidl's privacy right of publicity.

39. As a result of Defendant's invasion of Mr. Seidl's privacy right of publicity, Mr. Seidl suffered damages for which Mr. Seidl is entitled to receive compensation from Defendant.

Seventh Claim -False Light Invasion of Privacy

40. Mr. Seidl incorporates by reference the allegations set forth in paragraphs 1 through 39.

41. By sending spam to thousands of people, and creating in those people the perception that Mr. Seidl was the originator of the spam, Defendant placed Mr. Seidl in a false light before the public.

42. Being falsely associated with this spam is highly offensive to Mr. Seidl and would be highly offensive to the reasonable person.

43. Defendant knew that no person at localhost.com was in any way affiliated with Defendant's services or with this spam and acted in reckless disregard of the false light in which the true owner of that domain name, Mr. Seidl, might be placed.

44. As a result of being placed in a false light, Mr. Seidl sustained damages for which he is entitled to compensation by Defendant.

Eighth Claim - Outrageous Conduct

45. Mr. Seidl incorporates by reference the allegations set forth in paragraphs 1 through 44.

46. Defendant's conduct was extreme and outrageous and Defendant engaged in such conduct recklessly or intentionally.

47. As a result of Defendant's extreme and outrageous conduct, Mr. Seidl suffered damages, including but not limited to severe emotional distress, for which damages Mr. Seidl is entitled to receive compensation.

Ninth Claim - 47 U.S.C.227

48. Mr. Seidl incorporates by reference the allegations set forth in paragraphs 1 through 47.

49. Defendant's action constituted the use of a computer or other device to send an unsolicited advertisement to a "telephone facsimile machine" as such term is defined in 47 U.S.C.227(a)(2)(B).

50. Defendant's action is made unlawful by 47 U.S.C. 227(b)(1)(C).

51. 47 U.S.C. 227(b)(3) authorizes Mr. Seidl to bring a private right of action in State court for violations of this statute.

52. Mr. Seidl suffered damages as a result of Defendants violation of 47 U.S.C. 227(b)(1)(C) for which damages Mr. Seidl is entitled to receive compensation from Defendant.

53. Pursuant to 47 U.S.C. 227(b)(3)(B), Mr. Seidl is entitled to recover his actual monetary loss, or to receive $500 in damages for each such violation, whichever is greater.

54. Defendant's violation of this statute was willful and knowing. Pursuant to 47 U.S.C. 227(b)(3)(C) Mr. Seidl is entitled to treble damages for such willful and knowing violation.

WHEREFORE, Plaintiff Matthew L. Seidl prays for relief as follows:

55. compensatory damages;

56. exemplary and punitive damages;

57. interest as prescribed by law

58. attorney's fees and costs; and

59. such other relief as the Court may deem just and proper.

Plaintiff Matthew L. Seidl requests a jury of six persons on those issues triable to a jury.

DATED: ______ day of _________________ of 1997.

____________________ 
Philip L. Dubois, #10769 
Philip L. Dubois, P.C.
Attorney for Plaintiff
2305 Broadway
Boulder, Colorado 80304 
Tel. 303-444-3885
Fax.303-444-1051 

__________________
Shirley Sostre, #27503
The Sostre Law Office
Attorney for Plaintiff
1920 13th Street, Suite A
Boulder, Colorado 80302
Tel. 303-413-9332
Fax. 303-938-8400

VERIFICATION

The allegations set forth in the foregoing Verified Complaint are true and correct to the best of my knowledge and belief.

______________________
Matthew L. Seidl, Plaintiff

The foregoing document has been subscribed and affirmed or sworn to before me in the County of _______________ State of _________________, this _____ day of _______________, 1997.

[SEAL]

________________________
Notary Public