- The Court?s Preliminary Injunction prohibits Rojas from publishing, distributing or disseminating Brink?s trade secrets, including ?methods of circumventing the lock out codes on Brink?s control panels.?
- Rojas has recently posted on his website, located at formatting linka software program titled ?Tech Help.? The Tech Help program contains instructions which clearly describe how to circumvent the lock out protection on Brink?s Home Security control panels. Plaintiff has prepared a Declaration of David Yorkey, Brink?s Senior Manager of Product Technology, describing his recent review and analysis of the Tech Help program, and setting forth screen shots from that program. By separate motion, Plaintiff has requested leave Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 1 of 9
4599823 - 2 - to file the Declaration separately in an ex parte submission under seal. (As set forth in that motion, because the Yorkey declaration identifies the trade secret information disclosed by Rojas, a public filing of the declaration, or sharing of it with Rojas, would in Brink?s opinion defeat the purpose of this motion.)
- Rojas clearly knowingly and intentionally posted these materials in violation of the Preliminary Injunction. As previous filings in this Court by both Brink?s and Rojas have made clear, Rojas takes a hostile and antagonistic attitude toward this Court and the legal process. In various statements, some posted on Internet news groups, some sent by e-mail to Brink?s and the court, and some directly filed with the Court, Rojas has displayed a rebellious attitude, hostile to the American legal system.
- As set forth in Plaintiff?s Motion for Temporary Restraining Order (Docket #15), Rojas has sent multiple e-mails to Plaintiff?s counsel stating or indicating that he intended to ignore, defy and/or taunt Brink?s, its counsel and the Court and judicial process. In one of his e-mails, dated June 30, 2007, he stated that he intended to publish Brink?s trade secret information and make it available to all alarm dealers, together with ?step by step instructions? on how to circumvent Brink?s lock out codes on its control panels. Brink?s filed its Motion for Temporary Restraining Order in response to this threat. Rojas then appeared by telephone in a hearing on the Motion for Temporary Restraining Order and, at that hearing, essentially retracted his threats, stated that he did not intend to disseminate Brink?s trade secrets, and stated that he would consent to an Order of this court prohibiting him from doing such. The Court then entered its Temporary Restraining Order (Docket #16), which was later amended to become a Preliminary Injunction (Docket #22).
- In August 2007, Plaintiff was approached by a third party who stated that he was a business acquaintance of Rojas and hoped to facilitate a settlement of this matter. Brink?s participated in settlement discussions with Rojas through this intermediary, and was Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 2 of 9
4599823 - 3 - told at one point by the intermediary that a settlement agreement had been reached. However, the intermediary later reported that Rojas had changed his mind and would not agree to the settlement. During the approximately five weeks when the settlement discussions were going on, Brink?s did not receive e-mails from Rojas, and in addition, various Internet news groups (where Rojas had in the past posted many messages concerning Brink?s and this case) showed no such activity. However, shortly before the intermediary reported to Brink?s that Rojas was backing out of the settlement agreement, Brink?s began receiving a flurry of new e-mail messages, all in the hostile style of Rojas? e-mails, although the e-mails all came through anonymizing portals and bore various signatures, most of which, like ?Noman Nescio? and ?Non sciveteni? are well known synonyms for ?Anonymous? or ?No Name.? It is apparent that Rojas authored and sent these e-mails.
- Last week, Rojas further escalated the matter by posting various messages on the Internet news group alt.security.alarms, some in his own name and some sent through anonymizing portals using anonymous names. Among other things, a new message strand entitled ?Brink?s BHS 2000D Hack? was created on alt.security.alarms on October 3,
2007 at 1:17 p.m. through a posting by ?Anonymous.? In the initial post, ?Anonymous? responded to a November 24, 2004 post by someone seeking information regarding use of a Brink?s BHS-2000D control panel. (A printout of this message strand is attached hereto as Exhibit A.) ?Anonymous? responded that the November 2004 poster only needed a programmer ?that will change the values on the chip.? A few minutes after the initial posting by ?Anonymous,? ?Jim Rojas? responded by clarifying the parts number of the Brink?s chip. Rojas, ?Anonymous? [or ?Anonymous Sender?] and two other posters, ?George Orwell? and ?Noman Nescio,? engaged in exchanges over the next few hours in which they together provided information on circumventing the lock-out codes on the Brink?s Home Security system. It is apparent that this posting was initiated, written, and orchestrated by Rojas in Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 3 of 9
4599823 - 4 - order to harm Brink?s, by disseminating instructions on circumventing lock-out codes on Brink?s control panels in violation of this Court?s Preliminary Injunction.
- In addition to the orchestrated message board dialogue with anonymous versions of himself, Rojas more directly violated the Preliminary Injunction by creating and posting to his website a software program that contained explicit directions on how to circumvent the Brink?s lock out codes. Rojas publicized this program (using his own name) on the ?Brink?s BHS 2000D Hack ? message strand on the alt.security.alarms. message board posting on October 5. As a result of that posting, Brink?s reviewed the program and determined, as set forth in the Declaration of David Yorkey, that that program contained explicit instructions on circumventing Brink?s lock out codes in violation of the Preliminary Injunction.
- In short, it is apparent that Rojas is intentionally violating the Court?s Preliminary Injunction. Everything about his recent activities is consistent with malicious, intentional defiance of the rights of Brink?s and the Court?s Preliminary Injunction. Rojas stayed silent when he was considering a settlement with Brink?s. When, for whatever reason, he decided not to settle, he began yet another flurry of hostile e-mails and postings. In his various postings, both to the alt.security.alarms news group and to his own website, he followed through on the threat he made in June to reveal Brink?s trade secret information. His apparent use of aliases and anonymizing services only highlights his knowledge that the actions he has taken are illegal.1 These actions directly violate and defy this Court?s Preliminary
1 It is not entirely clear whether Rojas is truly attempting to hide his identity or just engaging in childish gamesmanship by using the aliases and anonymizing services. In one recent message board strand, titled ?Brinks Home Security Evergreen Clauses,? populated by messages between Rojas, ?George Orwell? and ?Harry Houdini,? one poster advised Rojas: ?Speaking of ?bottom feeders,? perhaps you should to back to posting as yourself ?before you become confused again.? See alt.security.alarms, at
formatting link
Home Security Evergreen Clauses.? Whether he is attempting to hide his actions or simply amuse himself in connection with his violation of the Court?s order, it is clear that Rojas is thumbing his nose at the judicial system. Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 4 of 94599823 - 5 - Injunction. Moreover, in view of the fact that Rojas personally told the Court on July 10, 2007 that he would not follow through on his threats and that he would comply with the Court Order, it is clear that Rojas can not be trusted.
- As further evidence of Rojas? intention to deliberately violate the Preliminary Injunction, on October 2, 2007, he posted a message to the alt.security.alarms newsgroup that stated, in part: I'll start by adding everything I know about Brinks security in my tech help program, which is MY INTELLECTUAL PROPERTY. Feel free to file injunctions against my intellectual property. Please, I can really use the extra money. Maybe then I can afford to hire a lawyer to get a class action lawsuit going. Then, I will create a website in some third world country that is not bound by any of Mr Sablemans assumptions or motions. I was thinking BRINKS-SUCKS.COM. I'll get back to you on that. (Copy attached as Exhibit B; emphasis added.) And on October 7, 2007, he sent an email to various recipients in which he stated: I did ask Brinks numerous times to prove that I stole any equipment, programmers, etc. I even asked them to produce one of their customers that I supposedly assisted to switchover to another monitoring station, or who I assisted to unlock their panel. But they really don't care to hear about that. At this point in time, I really don't care either way. I wasted enough time filing pointless motions to the court. It all falls on deaf ears anyway. So instead, I will continue to use the only avenue I have to level the playing field...THE INTERNET. (Copy attached as Exhibit C; emphasis added.) These messages evidence an intent to violate Brink?s rights by disseminating Brink?s trade secrets over the Internet, and using the Internet to evade the power of United States courts.
- For these reasons, Brink?s requests that Rojas be immediately held in contempt, that the Court take appropriate action to prevent further violations of its Preliminary Injunction by Rojas, and that the Court appropriately punish Rojas for his violations so far, and compensate Brink?s for the damage caused by Rojas? violations. Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 5 of 9
4599823 - 6 - Court?s Personal Jurisdiction Over Rojas
- This Court clearly has jurisdiction over Rojas and should not delay full and effective contempt proceedings against him. Brink?s recent brief regarding personal jurisdiction, Docket # 31, fully explains the legal basis for this Court?s jurisdiction over Rojas. Moreover, personal jurisdiction, unlike subject matter jurisdiction, can be waived, and in this case, Rojas, by voluntarily appearing herein, has clearly waived any objections he might otherwise have to personal jurisdiction.
- Rojas studiously avoided appearing in this Court for the first three months of this action. However, after Brink?s filed its Motion for Default Judgment,(Docket #13), and the Court sought a response from Rojas (Docket #14), Rojas then appeared in the case, submitting filings through which he sought to avoid having a default judgment entered against him. While his filings were not conventional, they clearly constituted an appearance under the law. See Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278, 281 (5th Cir.
1987) (finding waiver of a defect in personal jurisdiction and noting "a party need not necessarily file an answer in federal court to put in an appearance for purposes of Rule 12(h): 'An appearance may also arise by implication from a defendant's seeking, taking, or agreeing to some step or proceeding in the cause beneficial to himself or detrimental to plaintiff other than one contesting only the jurisdiction or by reason of some act or proceeding recognizing the case as in court.'"); MCW, Inc. v. Badbusinessbureau.com, L.L.C., No.:
3:02-CV-2727-G, 2004 WL
833595 at *4-5 (N.D. Tex. April 19, 2004) (denying motion to dismiss for lack of personal jurisdiction under Rule 12(h)(1) because defendants waived the defense by not raising it in their first Rule 12(b) motion); O'Brien v. R.J. O'Brien & Assoc., Inc., 998 F.2d 1394 (7th Cir. 1993) (waiver of challenge to personal jurisdiction by not raising the issue in defendant's motion to vacate an entry of default). Rojas cannot have it both ways, first by appearing in the case and seeking to avoid the default judgment, and second by asserting in the face of imminent adverse Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 6 of 9
4599823 - 7 - action against him that he is not subject to the Court?s jurisdiction. Once he appears, as he did in June 2007, he is fully in the case, and fully subject to all orders and judgments of the Court. Indeed, there can be no doubt as to the validity of the Preliminary Injunction against Rojas, because Rojas, in the telephone hearing on the original Temporary Restraining Order, explicitly told the Court that he would not object to the Order, and would comply with it. See Temporary Restraining Order, Docket #16 (?the Defendant poses no objection to the relief sought?). Again, one who has consented to a Court Order cannot later contest its jurisdictional effect.
- In short, there is no question as to this Court?s personal jurisdiction over Rojas for all purposes, and especially for purposes of full enforcement of its Preliminary Injunction. Relief Requested
- Plaintiff requests that the Court either find Rojas in contempt based upon the evidence set forth herein, or promptly set a telephonic hearing to address this motion.
- If and when the Court finds Rojas in contempt, Plaintiff requests that the Court: a. Instruct the United States Marshall to immediately seize all computers and communication devices located on Rojas? premises at 8002 Cornwall Lane, Tampa, Florida 33615-4604, in order to prevent further violations of the Preliminary Injunction. In light of Rojas? record of defiance and untrustworthiness, a seizure of the instrumentalities of his violations is necessary to prevent further harm. Cf., United States v. Mitnick, 145 F.3d 1342 (9th Cir 1998) (affirming conditions of supervisory release which restricted connected computer hacker?s access to computers).2
2 If the computers are seized, Brink?s should be permitted to have an independent expert preserve the contents of the computers, by taking mirror images of their hard drives, so that such evidence is fully Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 7 of 9
4599823 - 8 - b. Instruct the United States Marshall to serve a copy of its Order on Rojas? Internet service provider, Ecommerce Corporation, d/b/a 1X Web Hosting,
247 Mitch Lane, Hopkinsville, Kentucky 42240, instructing it (1) not to facilitate any violations of the Preliminary Injunction by Rojas, and specifically to not assist Rojas in any manner in disseminating instructions regarding circumvention of Brink?s lock out-codes, or any other content that would violate the Preliminary Injunction, and (2) to hold in escrow all revenue due Rojas pending a final determination by this Court of these contempt proceedings and any fines imposed therein. c. Award Brink?s a compensatory fine of at least $10,000, or such other amount as the Court deems appropriate in the circumstances, to compensate Brink?s for its actual loss due to the violation, plus Brink?s reasonable expenses including attorney's fees in preparing for the contempt proceeding. See Sebastian v. Texas Dep't of Corrections, 558 F. Supp. 507 (S.D. Tex. 1983); Cook v. Ochsner Found. Hospital,
559 F.2d 270 (5th Cir. 1977). d. Impose an appropriate punishment on Rojas for his intentional violations of the Preliminary Injunction. preserved in the event that it becomes necessary in further proceedings to determine the full extent to which Rojas has violated the injunction and/or violated Brink?s rights as alleged in the Complaint. Based on Rojas? threats and conduct so far in this litigation, it is clear that there is a significant danger of destruction of evidence, and accordingly it is essential to preserve key evidence. Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 8 of 9
4599823 - 9 -
- Plaintiff requests that this motion be considered on an expedited emergency basis because of the irreparable harm involved in violation of the Court?s Preliminary Injunction and intentional dissemination of Brink?s trade secrets. Respectfully submitted, By: _____/s Mark Sableman________ Mark Sableman Dean L. Franklin Timothy D. Krieger THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO 63101 (314) 552-6000 (314) 552-7000 (fax) and Christina I. Sookdeo Texas Bar No. 24028001 Brink?s Home Security, Inc.
8880 Esters Boulevard Irving, TX 75063 (972) 871-3503 (972) 871-3366 (fax) Attorneys for Plaintiff Brink?s Home Security, Inc. Certificate of Service I hereby certify that this document will be served upon Defendant Jim Rojas by PDF email ( snipped-for-privacy@tech-man.com) on October 9, 2007. ______/s/ Mark Sableman____________ Case 3:07-cv-00437 Document 32 Filed 10/09/2007 Page 9 of 9