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Case 1:07-cv-00060-GMS

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Case 1:07-cv-00060-GMS Case 2:06-cv-03901-GP

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : : : : : : : : : : :

ELAN SUISSE LTD., Plaintiff, v. ROBERT D. CHRIST, Defendant.

Civil Action No. 06-3901

MOTION TO DISMISS OR TRANSFER Defendant Robert D. Christ, through his undersigned attorneys, hereby moves to dismiss the above-captioned action pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) for lack of personal jurisdiction and for improper venue. In the alternative, defendant moves, pursuant to 28 U.S.C. §§ 1404(a) and 1406(a), to transfer this action to the U.S. District Court for the District of Delaware or the U.S. District Court for the Eastern District of Louisiana. The grounds for this motion are set forth fully in the Memorandum of Law filed herewith. REED SMITH LLP

By:

___/as 955______________________ Andrew J. Soven PA I.D. No. 76766 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 (215) 851-8100 Thad J. Bracegirdle 1201 Market Street, Suite 1500 Wilmington, DE 19801 (302) 778-7500 Attorneys for Defendant

Dated: September 11, 2006

PHLLIB-942534.1-AJSOVEN 9/11/06 2:48 PM

Case 1:07-cv-00060-GMS Case 2:06-cv-03901-GP

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : : : : : : : : : : :

ELAN SUISSE LTD., Plaintiff, v. ROBERT D. CHRIST, Defendant.

Civil Action No. 06-3901

ORDER WHEREAS, defendant Robert D. Christ having moved to dismiss the above-captioned action, and good cause having been shown; IT IS HEREBY ORDERED, this ________ day of _______________, 2006, that defendant's Motion to Dismiss is GRANTED and the above-captioned action is hereby DISMISSED.

J.

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : : : : : : : : : : :

ELAN SUISSE LTD., Plaintiff, v. ROBERT D. CHRIST, Defendant.

Civil Action No. 06-3901

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS OR TRANSFER For the reasons set forth below, defendant Robert D. Christ respectfully requests that the Court dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) for lack of personal jurisdiction and for improper venue. In the alternative, defendant also respectfully requests that the Court transfer this action to the U.S. District Court for the District of Delaware (the "Delaware Court") or the U.S. District Court for the Eastern District of Louisiana. STATEMENT OF FACTS A. The Delaware Action.

On April 27, 2006, defendant Robert D. Christ filed a complaint in the Delaware Court against Brett J. Cormick, Elan Suisse (Pty) Ltd. ("Elan Suisse"), Elan Suisse International Holdings (USA) LLC ("Elan Suisse USA") and others.1 As alleged in that action, styled Robert D. Christ v. Brett J. Cormick, et al., C.A. No. 06-275-GMS (the "Delaware Action"), Mr. Cormick, by means of a complex international shell game and a continuous series of deceptive
1 A true and correct copy of this complaint is attached hereto as Exhibit A.

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statements made between January and September 2004, defrauded Mr. Christ out of $250,000. Specifically, Mr. Cormick fraudulently induced Mr. Christ to furnish him with $250,000 as a purported "investment" in a holding company that, according to Mr. Cormick, would operate to promote and sell United States-based financial products and investment vehicles to South African investors. See Ex. A ¶¶ 15-16. Among other things, Mr. Cormick intentionally misrepresented to Mr. Christ that he had access to 8,000 brokers and financial advisors in South Africa and relationships with investors who intended immediately to invest more than $28 million in his purported venture. See id. In reliance upon these and other misrepresentations made by Mr. Cormick, Mr. Christ wired $250,000 to Mr. Cormick's personal bank account, purportedly as an initial capital infusion to help launch the venture. See Ex. A ¶¶ 17-19. In exchange for this "investment," Mr. Christ was to receive a 50% equity interest in two entities ­ (i) Elan Suisse, a South African corporation which would manage the venture's investment operations; and (ii) Elan Suisse USA, a Delaware limited liability company which would own certain intellectual property rights. See id. Contrary to Mr. Cormick's representations, however, the parties never executed a written agreement memorializing Mr. Christ's investment and Mr. Christ never received any shares of either Elan Suisse entity. See id. ¶ 20. In September 2004, when Mr. Cormick's alleged venture had yet to commence operations, Mr. Christ became skeptical and demanded an audit of Elan Suisse and Elan Suisse USA. See id. However, despite a subsequent agreement by Mr. Cormick to repay Mr. Christ's money, Mr. Christ has never received the $250,000 fraudulently solicited from him by Mr. Cormick. See id. As Mr. Christ learned later, his $250,000 was not used to fund the Elan Suisse entities, but instead was funneled by Mr. Cormick to Nicogel Ltd., a startup company located in the United Kingdom. See id. ¶ 37.

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In the Delaware Action, Mr. Christ asserted claims of promissory estoppel, breach of contract and fraud against Mr. Cormick. Mr. Christ also alleged a claim of civil conspiracy against Elan Suisse, Elan Suisse USA and Nicogel, as well as John Walters and Dianne Marshall, two principals of Nicogel who participated in Mr. Cormick's fraudulent scheme to misappropriate and divert Mr. Christ's funds. Finally, Mercari Financial Services (Pty) Ltd., a South African corporation of which Mr. Cormick was a director, also was named as a defendant to Mr. Christ's civil conspiracy claim by virtue of its knowing and intentional assistance of Mr. Cormick's fraudulent activities. On May 22, 2006, the defendants in the Delaware Action moved to dismiss that proceeding based on, among other grounds, the Delaware Court's alleged lack of personal jurisdiction and the purported hardship that the defendants ­ all of whom, with the exception of Elan Suisse USA, are domiciled overseas ­ would suffer from litigating in the United States. Briefing on the defendants' motion was completed on July 3, 2006 and the parties are awaiting oral argument before the Delaware Court. B. The Pennsylvania Action.

Following his discovery of Mr. Cormick's fraudulent scheme, Mr. Christ began to investigate the veracity of Mr. Cormick's claims concerning his personal credentials and the Elan Suisse business venture. See Christ Aff. (attached hereto as Ex. B) ¶ 5. As a result of that investigation, Mr. Christ learned that Mr. Cormick was a well-traveled and sophisticated con artist who had fabricated virtually all of his academic and professional experience and had defrauded numerous other individuals through similar "investment" schemes. See id. In order to notify the public of Mr. Cormick's misdeeds and prevent others from being misled as he had been, Mr. Christ began publishing his findings on a website, www.elansuisse.co.za, based on an Internet server located in South Africa. See id. ¶¶ 4, 6-7. Mr. Christ has never represented or -3-

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implied that his website is authorized by, affiliated with or operated on behalf of Elan Suisse or any other entity affiliated with Mr. Cormick. See id. ¶ 7. Nor does Mr. Christ conduct any commercial activity through the www.elansuisse.co.za site (see id.); even a cursory review of the website reveals that it is intended solely for the pubic dissemination of information.2 On June 23, 2006, despite its prior claim to the Delaware Court that it would be prejudiced by litigating in the United States, Elan Suisse filed a complaint against Mr. Christ in the Court of Common Pleas of Montgomery County, Pennsylvania (the "Pennsylvania Court").3 In that action, styled Elan Suisse Ltd. v. Robert D. Christ, No. 06-15540 (the "Pennsylvania Action"), Elan Suisse and Mr. Cormick (who verified the allegations of the complaint as a director of Elan Suisse) alleged that certain statements posted by Mr. Christ on the www.elansuisse.co.za website concerning Mr. Cormick and Elan Suisse were defamatory and constituted commercial disparagement. See Ex. C. ¶ 10. The Pennsylvania Action also alleged that Mr. Christ's use of the www.elansuisse.co.za domain name violated Sections 43(a)(1)(A) and 43(d)(1)(A) of the Lanham Act, 15 U.S.C. §§ 1125(a)(1)(A) and 1125(d)(1)(A). See id. ¶¶ 19-24. The complaint filed with the Pennsylvania Court alleges incorrectly that Mr. Christ is a resident of Pottstown, Pennsylvania. See Ex. C ¶ 2. On or about June 2, 2006, prior to the commencement of the Pennsylvania Action, Mr. Christ relocated from Pennsylvania to Abita Springs, Louisiana. See Ex. B ¶ 2. In connection with this move, Mr. Christ and his wife sold

2 The full content of Mr. Christ's website is attached as an exhibit to the pleadings filed with this

Court when the case was removed from the Court of Common Pleas of Montgomery County, Pennsylvania.
3 A true and correct copy of the complaint filed with the Pennsylvania Court is attached hereto as

Exhibit C.

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the house they had owned in Pottstown in a transaction which closed on or about July 15, 2006. See id. Accordingly, the Montgomery County Sheriff's attempts to serve Mr. Christ at his prior address in Pottstown were unsuccessful. See Ex. D. On or about August 14, 2006, Mr. Christ received a copy of the pleadings filed in the Pennsylvania Action by certified mail at his business, which also had been moved from Pottstown to Hammond, Louisiana on May 1, 2006. See Ex. B. ¶¶ 3, 8. In short, at the time the Pennsylvania Action was filed, Mr. Christ did not reside or operate a business in Pennsylvania. See id. ¶ 3. On September 1, 2006, as a result of Elan Suisse's allegation of federal claims arising under the Lanham Act, Mr. Christ removed the Pennsylvania Action to this Court. ARGUMENT I. THE COMPLAINT SHOULD BE DISMISSED BECAUSE THIS COURT LACKS PERSONAL JURISDICTION OVER MR. CHRIST. Federal Rule of Civil Procedure 4(e) permits a district court to assert personal jurisdiction over a nonresident to the extent allowed under the law of the state where the court sits. See Fed. R. Civ. P. 4(e). Furthermore, Pennsylvania "authorizes long-arm jurisdiction to the extent permitted by the due process clause" of the Constitution. Visual Securities, Inc. v. KTV, Inc., 102 F.Supp.2d 601, 602 (E.D. Pa. 2000); 42 Pa. C.S. § 5322(b). However, once a defendant raises the defense of lack of personal jurisdiction, the burden falls upon the plaintiff "to prove, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction." Carteret Savings Bank, F.A. v. Shusan, 954 F.2d 141, 146 (3d Cir. 1992); see also IMO Indus., Inc. v. Kiekert, AG, 15 F.3d 254, 257 (3d Cir. 1998); Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). To establish the propriety of personal jurisdiction, the plaintiff must present "a prima facie case for the exercise of personal jurisdiction by `establishing

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with reasonable particularity sufficient contacts between the defendant and the forum state.'" Mellon Bank, 960 F.2d at 1223 (internal citations omitted). The exercise of personal jurisdiction over a nonresident defendant is appropriate only if there exist sufficient "minimum contacts" between the defendant and the forum state such that the maintenance of the suit in that state does not "offend traditional notions of fair play and substantial justice." International Shoe Co. v. State of Washington, 396 U.S. 310, 316 (1945). Of prime concern is the "predictability and fairness of the court taking jurisdiction over the defendant." Giangola v. Walt Disney World Co., 753 F.Supp. 148, 155 (D.N.J. 1990). While there is no fixed standard for assessing the required contacts, predictability and fairness dictate that there must exist, at a minimum, "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citing International Shoe, 326 U.S. at 319). The requirement of "purposeful availment" ensures that a nonresident defendant will not be haled into a foreign court's jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984). General personal jurisdiction may be exercised only where a nonresident defendant maintains "continuous and systematic" contacts with the forum state and the plaintiff's claims do not arise out of those contacts with the forum state. Helicopteros Nacionales De Columbia, S.A. v. Hall, 466 U.S. 408, 416 (1984). Specific personal jurisdiction may be obtained where the plaintiff's cause of action "arises from the defendant's forum related activities, such that the defendant `should reasonably anticipate being haled into court there.'" Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 151 n.3 (3d Cir. 1996). Here, however,

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Elan Suisse cannot establish either general or specific personal jurisdiction in Pennsylvania over Mr. Christ. A. Mr. Christ Is Not Subject to General Personal Jurisdiction in Pennsylvania.

As discussed above, a court may exercise general personal jurisdiction over a nonresident defendant only when the defendant has "substantial ... continuous and systematic" contacts with the forum state. E.g., Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446-47 (1952). There can be no dispute that Mr. Christ no longer has any contact with Pennsylvania, let alone contact which is substantial, continuous and systematic. While Mr. Christ was a resident of Pennsylvania until June 2, 2006, he now resides full-time in Louisiana and did so at the time of the filing of the Pennsylvania Action and plaintiff's attempts to serve him with process. See Ex. B ¶ 2. Moreover, Mr. Christ has sold the property he and his wife previously owned in Pennsylvania and relocated his business to Louisiana. See id. ¶¶ 2-3. Accordingly, Mr. Christ no longer has any "continuous" contacts with Pennsylvania which would subject him to this Court's personal jurisdiction. Nor does Mr. Christ's operation of a website which can be accessed by Pennsylvania residents via the Internet give rise to general jurisdiction. See S. Morantz, Inc. v. Hang & Shine Ultrasonics, Inc., 79 F.Supp.2d 537, 539 (E.D. Pa. 1999) ("[A] mere presence on the World Wide Web does not establish the minimum contacts necessary to subject a [defendant] to personal jurisdiction on a worldwide basis."). This Court and others have held that where, as here, a defendant's website is "passive" ­ i.e., the defendant does not use the website for commercial purposes but simply posts information on the website which can be accessed by Internet users in foreign jurisdictions ­ the operation of that website does not provide sufficient contact with the forum state to support general personal jurisdiction. See, e.g., Desktop Technologies, Inc. v. Colorworks Reproduction & Design, Inc., 1999 U.S. Dist. LEXIS, at *7 -7-

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(E.D. Pa. Feb. 25, 1999) (passive websites that do "little more than make information available to those who are interested" do not provide grounds for personal jurisdiction); Mink v. AAAA Dev. L.L.C., 190 F.3d 333, 336-37 (5th Cir. 1999) (defendant's website was not sufficient basis for general personal jurisdiction when website did not have any form of interactivity that allowed customers to order or purchase products online); Santana Prods., Inc. v. Bobrick Washroom Equip., Inc., 14 F.Supp.2d 710, 714 (M.D. Pa. 1998) (passive website that provided information about defendant's business but through which no business was transacted was not sufficient basis for general jurisdiction). Mr. Christ's complete lack of contact with Pennsylvania ­ physically, over the Internet or otherwise ­ precludes any exercise of general personal jurisdiction by this Court. B. Mr. Christ Is Not Subject to Specific Personal Jurisdiction in Pennsylvania.

To establish specific personal jurisdiction over a nonresident defendant, a plaintiff must demonstrate that the defendant has constitutionally minimum contacts with the forum and that its claims arise from those contacts. See Morantz, 79 F.Supp.2d at 539. If such contacts exist, the Court also must determine whether the exercise of personal jurisdiction is reasonable and complies with "traditional notions of fair play and substantial justice." Id. (citing International Shoe, 326 U.S. at 316). Since Elan Suisse cannot even meet the threshold burden of demonstrating that Mr. Christ has minimum contacts with Pennsylvania giving rise to its claims, the Court need not undertake the Constitutional analysis under International Shoe. Elan Suisse's complaint alleges no facts relating to the exercise of personal jurisdiction over Mr. Christ other than stating erroneously that Mr. Christ is a resident of Pottstown, Pennsylvania. See Ex. C ¶ 2. Moreover, even if Mr. Christ still had any contacts with Pennsylvania, the complaint alleges no facts whatsoever from which the Court could conclude that Elan Suisse's claims arise from those -8-

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contacts. For example, the complaint neither identifies any locations from which Mr. Christ may have posted the allegedly defamatory statements on his website nor alleges the location of the server on which the website is registered ­ which, since the server is located in South Africa, does not support jurisdiction in any event. See Ex. B ¶ 7. The only facts alleged by Elan Suisse in support of its claims relate to the postings made on the www.elansuisse.co.za website. However, as is the case with general jurisdiction, the mere posting of information on a passive website by a defendant does not support specific personal jurisdiction arising from that act simply because the information in question can be viewed by a forum's residents via the Internet. See, e.g., Barrett v. Catacombs Press, 44 F.Supp.2d 717, 727 (E.D. Pa. 1999) ("Not only does the weight of the authority favor the rationale that a `passive' Web site is insufficient to trigger jurisdiction, but we believe that such decisions comport with the traditional concept of personal jurisdiction where merely fortuitous contact is insufficient."); Blackburn v. Walker Oriental Rug Galleries, Inc., 999 F.Supp. 636, 639-40 (E.D. Pa. 1998) (defendant's passive website with email link for users was insufficient to support personal jurisdiction); Bailey v. Turbine Design, Inc., 86 F.Supp.2d 790, 794-97 (W.D. Tenn. 2000) (posting of allegedly defamatory material on defendant's passive website was insufficient basis for exercise of specific jurisdiction since defendant did not purposely avail itself of forum state). While Elan Suisse has not purported to have served Mr. Christ pursuant to Pennsylvania's long-arm statute, 42 Pa. C.S.A. § 5322, that statute nonetheless likewise fails to establish personal jurisdiction over Mr. Christ. The Pennsylvania long-arm statute permits the exercise of specific personal jurisdiction over any person who, among other things: (1) transacts any business in Pennsylvania; (2) contracts to supply services or things in Pennsylvania; (3) causes harm or tortious injury by an act or omission in Pennsylvania; (4) causes harm or tortious

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injury in Pennsylvania by an act or omission outside the Commonwealth; or (5) has an interest in, uses or possesses real property in Pennsylvania. See 42 Pa. C.S.A. § 5322. As discussed above, Mr. Christ no longer transacts business in, contracts to supply services in or owns real property in Pennsylvania. See Ex. B ¶¶ 2-3. Additionally, the complaint identifies no allegedly tortious actions by Mr. Christ which took place in Pennsylvania. Finally, since Elan Suisse is a South African corporation with its principal place of business in South Africa (see Ex. C ¶ 1), Mr. Christ could not possibly have caused any alleged harm or tortious injury within Pennsylvania. In summary, the Pennsylvania long-arm statute provides no grounds upon which the Court can exercise personal jurisdiction over Mr. Christ. II. THIS ACTION SHOULD BE DISMISSED OR, ALTERNATIVELY, TRANSFERRED BECAUSE THIS COURT IS NOT THE PROPER VENUE FOR PLAINTIFF'S CLAIMS. 28 U.S.C. § 1391(b) provides that an action not founded solely on diversity jurisdiction may only be brought in: (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). Additionally, 28 U.S.C. § 1400(a) provides that actions "arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found." 28 U.S.C. § 1400(a). As demonstrated above, Mr. Christ no longer resides within this district and plaintiff's complaint fails to allege any facts indicating where the events giving rise to its claims occurred, let alone facts suggesting that a substantial part of the events occurred in Pennsylvania. In any event, it is unlikely that Elan Suisse could truthfully allege facts that would establish

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venue in this district, given that its claims arise from communications made over the Internet, routed through a server located in South Africa, and relating to a South African corporation. Accordingly, there is no basis under 28 U.S.C. § 1391(b) or 28 U.S.C. § 1400(a) for venue to lie in this Court and this action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(3). Alternatively, in the event the Court determines that dismissal of this action is not appropriate, it should transfer the action to either the U.S. District Court for the District of Delaware, where the parties already are engaged in related litigation, or the U.S. District Court for the Eastern District of Louisiana, where Mr. Christ currently resides. Transfer of this action would be warranted under either 28 U.S.C. § 1404(a), which authorizes a transfer "[f]or the convenience of the parties and witnesses" and "in the interest of justice," or 28 U.S.C. § 1406(a), which permits transfer of a case "laying venue in the wrong division or district." 28 U.S.C. §§ 1404(a), 1406(a). Under Section 1406(a), venue is "wrong" and transfer is appropriate where, as here, the district court is an improper venue under 28 U.S.C. § 1391 or any other applicable statute. See, e.g., Schaeffer v. Village of Ossining, 58 F.3d 48, 50 (2d Cir. 1995); Tel-Phonic Services, Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1141-42 (5th Cir. 1992); Hapaniewski v. City of Chicago, 883 F.2d 576, 579 (7th Cir. 1989), cert. denied, 493 U.S. 1071 (1990). Even when venue is proper, Section 1404(a) authorizes the Court to transfer an action in order to "prevent the waste `of time and energy and money' and `to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v. Barge FBL-585, 365 U.S. 19, 26 (1960)). Transfer also is appropriate where, as here, the defendant is not subject to personal jurisdiction in the plaintiff's original choice of venue. See, e.g., Carteret Savings Bank, F.A. v. Shushan, 919 F.2d

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225, 231-32 (3d Cir. 1990); Bakaj v. Levine, 733 F.Supp. 951, 954-55 (E.D. Pa. 1990); Shaw v. Boyd, 658 F.Supp. 89, 91-92 (E.D. Pa. 1987). Under either statute, both of which permit transfer of an action to "any other district or division where it may have been brought," 28 U.S.C. §§ 1404(a), 1406(a), this action should be transferred to Louisiana or Delaware. Transfer to the Eastern District of Louisiana indisputably is appropriate since that is the venue in which Mr. Christ resides and is subject to personal jurisdiction. Proceeding with this action in Louisiana therefore would be many times more convenient and less burdensome to Mr. Christ while, by comparison, litigating in Louisiana would subject Elan Suisse, a South African company, to no more prejudice or burden than litigating in Pennsylvania. Under similar circumstances, where a plaintiff did not reside in the original forum, courts have not hesitated to transfer actions to the venue of the defendant's residence. See, e.g., McEvily v. Sunbeam-Oster Co., Inc., 878 F.Supp. 337, 344 (D.R.I. 1994); Burstein v. Applied Extrusion Techs., Inc., 829 F.Supp. 106, 110 (D. Del. 1992); U.S. Fidelity & Guar. Co. v. Republic Drug Co., Inc., 800 F.Supp. 1076, 1081 (E.D.N.Y. 1992). The District of Delaware, where the parties4 already are engaged in related litigation, is an equally appropriate venue for transfer. Elan Suisse, in an obvious act of forum shopping, initiated this action in Pennsylvania even when it was fully aware of related claims pending against it in the District of Delaware, where it simply could have brought counterclaims against Mr. Christ. Rather than conserve the parties' and the courts' resources, however, Elan Suisse

4 While the plaintiff in this action is called "Elan Suisse Ltd." in the complaint, Mr. Christ

believes that the party has been misnamed and is, in fact, Elan Suisse (Pty) Ltd., which is a defendant to the Delaware Action. This conclusion is supported by the fact that Elan Suisse (Pty) Ltd., also a South African corporation (compare Ex. A ¶ 4 with Ex. C ¶ 1), was the entity used in Mr. Cormick's scheme to defraud Mr. Christ and is the subject of Mr. Christ's allegedly defamatory Internet postings.

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opted to file an unnecessary and duplicative action in Pennsylvania. Courts have recognized in similar circumstances that, when a prior-filed action is pending in another district between the same parties, transfer to that venue is proper (even if the defendant in the second action is not subject to personal jurisdiction as a defendant in the transferee forum) since the plaintiff had the right to raise its claim as a counterclaim in the first action. See A.J. Industries, Inc. v. United States Dist. Ct., C.D. of Cal., 503 F.2d 384, 386-89 (9th Cir. 1974); Leesona Corp. v. Duplan Corp., 317 F.Supp. 290, 293-94 (D.R.I. 1970). Moreover, "[t]ransfer of cases to a district in which a related action is pending is favored because it conserves judicial resources and avoids inconsistent results." 17 Moore's Federal Practice § 111.12[1][b], at 111-55 (citing Levitt v. Maryland Deposit Ins. Fund Corp., 643 F.Supp. 1485, 1493 (E.D.N.Y. 1986)). Elan Suisse already has wasted this Court's time and resources by filing this action in Pennsylvania and then failing to dismiss it voluntarily even after learning that venue is not proper here. Transfer of this action to the Delaware Court, where it can be consolidated with the pending Delaware Action involving the same parties and arising from the same factual background, would permit all parties to maximize resources and coordinate the resolution of their dispute in a single forum.

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CONCLUSION For the foregoing reasons, defendant Robert D. Christ respectfully requests that plaintiff's claims be dismissed in their entirety. Alternatively, defendant respectfully requests that the Court transfer this action to the U.S. District Court for the District of Delaware or the U.S. District Court for the Eastern District of Louisiana. REED SMITH LLP

By:

___/as 955________________________ Andrew J. Soven PA I.D. No. 76766 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 (215) 851-8100 Thad J. Bracegirdle 1201 Market Street, Suite 1500 Wilmington, DE 19801 (302) 778-7500 Attorneys for Defendant

Dated: September 11, 2006

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CERTIFICATE OF SERVICE I hereby certify that, on this 11th day of September, 2006, I caused to be served a true and correct copy of the foregoing Motion to Dismiss or Transfer and the supporting Memorandum of Law, by first class United States mail, postage prepaid, upon the following counsel:

Nicholas Casamento, Esquire Joseph A. Ratasiewicz, Esquire Front Street Lawyers, P.C. Flagship Corporate Center, Suite 320 2 West Baltimore Avenue Media, PA 19063

_/as 955_ Andrew J. Soven

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ELAN SUISSE LTD. Plaintiff vs. ROBERT D. CHRIST Defendant : : : : : : :

Civil Action No.06-3901

MEMORANDUM OF LAW IN RESPONSE TO DEFENDANT'S MOTION TO DISMISS STATEMENT OF FACTS In the case at bar, a Complaint in this matter was filed in the State Court on June 23, 2006 containing three (3) counts, one for Commercial Disparagement and two (2) for violations of the Lanham Act. A true and correct copy of this Complaint is attached hereto as Exhibit "A". Plaintiff, Elan Suisse LTD., (Elan Suisse) was incorporated during or about July 23, 2003 (see Exhibit "A" ¶3). The Plaintiff Company's product, developed by Brett Cormick, was an investment vehicle for investors to invest in U.S. Dollars (See Exhibit "A" ¶3). That around the beginning of February 2004, Defendant Christ became a thirtysix percent (36%) investor in Elan Suisse International Holdings (Elan Suisse USA), a separate corporation from Elan, which Christ was to operate Elan Suisse USA in order to attract investors in the United States. (See Exhibit "A" ¶5) Christ was not authorized by Elan Suisse to operate any website. (See Exhibit "A" ¶¶5-8) That sometime around September or October of 2005, Christ, despite having not been authorized to operate any website purporting to be related to any of the Elan Suisse

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companies, did so and set up the sites Elan Suisse.co.za. and Elan-Suisse.com. From that date through the present time, as set forth in the Complaint, Mr. Christ has operated said website and has posted defamatory statements against the Company, its chief promoter and founder, Brett Cormick and other various investors and employees. (See Exhibit "A" ¶10). When Mr. Christ filed his Delaware action on April 27, 2006,in his Complaint he specifically states that he is a resident of Pottstown, Pa.. In the Affidavit that he has attached to Defendant's Motion to Dismiss in the case at bar, he unequivocally states that he and his family did not move to Louisiana until June 2, 2006 and they did not close on their former home until July 15, 2006. Furthermore, from the time he started operating this website and prior to that, Mr. Christ owned a Company called Seatrepid which operated out of Pottstown, Pa.. Furthermore, Mr. Christ's Affidavit states that he did not move that Company until May 1, 2006. Plaintiff attempted to make personal service on or about June 27, 2006 but was unable to find Mr. Christ at his Pottstown, Pa. residence. This is the first time that Plaintiff became aware that Defendant may have moved from Pottstown, Pa. (See Exhibit "B") Thereafter, Plaintiff through information from the Post Office, learned that Defendant Christ had put a Change of Address with the Post Office for his new residence in Louisiana on June 7, 2006 to be effective June 9, 2006. (See Exhibit "C"). Thus, at least until the beginning of June 2006, was a resident of Pennsylvania and his postings to this website were from his home in Pennsylvania. (See Exhibit "D" consisting of Pg. 2 of 78 of downloaded material from Defendant Christ's website whereby he informs

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everyone of his Pottstown, Pa. address, phone and fax number and his e-mail address at Seatriped, his place of business). Furthermore, until July 15, 2006, Christ owned residential property in Pottstown, Pa.. I. ELAN SUISSE DOES HAVE SPECIFIC PERSONAL JURISIDICTION OVER DEFENDANT CHRIST IN PENNSYLVANIA

Pennsylvania's Long Arm Statute, 42 Pa. C.S.§5322 (a) (3) (b) entitled a Basis of personal jurisdiction over persons outside this Commonwealth provides in pertinent part: (a) GENERAL RULE.--A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:... (3) "Causing harm or tortuous injury by an act or omission in this Commonwealth" ; and (b) "EXERCISE OF FULL CONSTITUTUIONAL POWER NONRESIDENTS ­In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States". Pursuant to Fed. R. Civ. P. (4(e), federal "district courts have personal jurisdiction over non-resident defendants to the extent authorized under the law of the forum state in which the district court sits." Machulsky v. Hall et al, Fed. Supp. 2nd 531, 537 (2002). Thus, in Pennsylvania, its Long Arm Statute does permit personal jurisdiction as

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far as it can be permitted under the Fourteenth Amendment to the United States Constitution. Therefore, in contradiction to the Plaintiff's brief, the constitutional analysis under International Shoe is proper. International Shoe Co. v. Washington, 326 US 310 (1945). In Defendant's Motion to Dismiss, they are intimating that there is no proof that Mr. Christ was operating the website. This is a "Red Herring". In Exbibit "D" attached to Plaintiff's Complaint, Mr. Christ specifically informs people how to contact him with regard to his website and gives his address, phone number, fax number and even his email address for his business as being located in Pottstown, Pa.. Plaintiff is entitled to all reasonable inferences from his pleadings and the matters he is now bringing before the Court's attention. Thus, in either September or October 2005 through the beginning of June 2006, the Defendant was based in Pennsylvania, was residing in Pennsylvania and was posting defamatory materials while he was staying in Pennsylvania. Under Pennsylvania's Long Arm Statute, there would be jurisdiction because the Defendant was causing harm or tortuous injury by his acts in Pennsylvania. 42 Pa. C.S.A. 5322 (a)(3). Defendant Christ's suggestion that this case should be transferred to the Federal Court in Louisiana is absurd. Why would a Louisiana Court want to take jurisdiction over a case where all of the tortuous conduct emanated from Pennsylvania and the Defendant Christ resided there during said acts. II. THIS ACTION SHOULD NOT BE TRANSFERRED TO ANOTHER COURT AS THIS COURT DOES HAVE PROPER VENUE FOR PLAINTIFF'S CLAIMS

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Pursuant to 28 U.S.C.1391 (b) (2), "...a civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except at otherwise provided by law, be brought only in...(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.... As herein stated, and as further evidenced by Defendant's own admissions on the website, and as attached as Exhibit "D" to Plaintiff's Complaint, Defendant was communicating from his location in Pottstown, Pa.; and all, if not a substantial part, of Defendant's actions towards Plaintiff, were conducted from his Pottstown, Pa. location. Pursuant to Bates v. C & S Adjusters, Inc., 980 F. 2d 865 (2d Cir. 1992), the Courts analyzed a "substantial part" by determining the location where the events occurred, not by identifying whether a Defendant may have deliberate contact with the forum. It is unquestionable that the events giving rise to Plaintiff's Complaint, occurred from the Defendant's then residence in Pottstown, Pa.. Therefore, pursuant to 28 U.S.C. 1391(b)(2), venue is proper in the current District Court in which Plaintiff has sought relief. Furthermore, Defendant's reference to 28 U.S.C.1400 (a) is misguided. 28 U.S.C. 1400(a) is a permissive statute of jurisdiction and venue and is not a required statute for venue and jurisdiction. Likewise, Defendant's reference to 28 U.S.C. 1406(a) is similarly misguided as said subsection presumes that an action has been brought in the wrong division or district. As above indicated, §1391(b) clearly lays proper venue with the current District Court for the Eastern District of Pennsylvania. And, finally, Defendant's reference to 28 U.S.C. 1404(a) fails to take into consideration the fact that the parties in the State of Delaware District Court action, are not the same as the parties in Plaintiff's current action; and that, Defendant is fully aware that the Defendants in the Delaware action have an outstanding Motion for Dismissal

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pursuant to lack of jurisdiction as to individual parties therein. There is a strong likelihood that Defendants, or some of them, in the Delaware action will prevail upon their Motion such that the action by Defendant herein, will be dismissed in Delaware. It clearly would not serve the interest of justice nor would it be convenient for the Plaintiff in this action to be forced to litigate a matter in Delaware that will most likely be dismissed on jurisdictional grounds. To transfer said Plaintiff's case at this time would prejudice other parties in these Delaware matter and would not be in the interest of justice. For all of the above reasons, the tortuous acts of Defendant Christ were committed while he was residing in Pennsylvania and were committed in Pennsylvania as part of a "blackmail campaign" to force Plaintiff to settle a business dispute, cause him personal embarrassment and cause the Company economic damages and the individuals involved embarrassment by his attacks on their character. Jurisdiction is constitutional in Pennsylvania because at the time Mr. Christ committed these tortuous acts, he owned property here, resided here with his wife and he also operated a business here. As such, this case should not be transferred to Delaware.

Respectfully submitted: FRONT STREET LAWYERS, P.C. BY:______________________________________ NICHOLAS CASAMENTO, ESQUIRE BY:______________________________________ JOSEPH A. RATASIEWICZ, ESQUIRE

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ELAN SUISSE LTD. Plaintiff vs. ROBERT D. CHRIST Defendant : : : : : : :

Civil Action No.06-3901

CERTIFICATE OF SERVICE I, NICHOLAS CASAMEMTO, ESQUIRE, attorney for Plaintiff, hereby certifies that a copy of the within Memorandum of Law in Response to Defendant's Motion to Dismiss was served on counsel for Defendant by U.S. 1st Class Mail Postage Prepaid at: Andrew J. Soven, Esquire 2500 One Liberty Place 1650 Market Street Philadelphia, Pa. 19103 Attorney for Defendant Thad J. Bracegirdle,Esquire 1201 Market Street, Suite 1500 Wilmington, DE 19801 Attorney for Defendant

Respectfully submitted: FRONT STREET LAWYERS, P.C. BY:_______________________________________ NICHOLAS CASAMENTO, ESQUIRE Attorney for Plaintiff

BY:_________________________________________ JOSEPH A. RATASIEWICZ, ESQUIRE Attorney for Plaintiff Date: September 25, 2006

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"A"

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FRONT STREET LAWYERS, P.C. BY: NICHOLAS CASAMENTO, ESQUIRE Attorney I.D. #37931 JOSEPH A. RATASIEWICZ, ESQUIRE Attorney I.D.#47453 Flagship Corporate Center, Suite 320 2 West Baltimore Avenue Media, Pa. 19063 610-891-0180 _________________________________________________Attorneys for Plaintiff

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA ELAN SUISSE Ltd. Plaintiff vs. ROBERT D. CHRIST Defendant : : : : : NO. 06-3901 CIVIL ACTION ­LAW JURY TRIAL DEMANDED

COMPLAINT Plaintiff, Elan Suisse Ltd., ("Plaintiff") by and through its attorney, Nicholas Casamento, Esquire, hereby brings this action against Robert D. Christ and in support thereof, alleges the following: 1. Plaintiff, Elan Suisse Ltd. ("Elan"), is a corporation formed and organized

under the laws of the Republic of South Africa and at all times relevant to the events described herein, Brett Cormick, was a Director and Officer of Elan Suisse. 2. Defendant herein is Robert D. Christ, ("Christ") an individual who resides

at 2333 Jones Road, Pottstown, Pa. 19465. 3. During or about July 2003, Elan was incorporated for the purpose of

developing and attracting international investors to a product developed by Cormick that proposed a safe investment vehicle for investors to invest in US dollars.

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4. Elan. 5.

The investment products developed became one of the trade secrets of

Approximately in the beginning of February 2004, Christ (Defendant)

became a thirty-six percent (36%) investor in Elan Suisse International Holdings. (A separate corporation from Elan). 6. That after investing Two Hundred Fifty Thousand Dollars ($250,000.00)

into the Elan Suisse International Holdings ("Holdings"), Christ had a thirty-six percent (36%) equity ownership and was also authorized to represent that entity which had been incorporated in the State of Delaware. 7. Christ was to operate "Holdings" in the U.S. in order to attract investors

there and did so in 2004. 8. 9. Christ was not authorized by Elan to operate any Website. That on or about September of 2004, Christ, without authority from Elan,

set up the Website "elansuisse.co.za.", using the Elan Suisse name in direct conflict with "elan suisse.com" (a registered domain name). 10. From September of 2004 and through the present time, Christ has posted

defamatory statements on his Website regarding Elan Suisse, associated companies, their investors and employees, which consist of but are not limited to the following as set forth in Christ's Website postings attached hereto as Exhibit "A". · "Elan Suisse Capital unclear as to which of these shell companies this moniter is attached" · "John Walters sentencing hearing transcript on fraud charges" · "The theft of this money to someone I trusted fueled ..."

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· "Cormick is and has been for several years ­ with impunity" running a large international investment scam based in the UK and the Republics of Zimbabwe and South Africa." · "I am unable to establish where Cormick lives" · "On the Alan Dean Affair whereby Cormick was arrested by New Scotland Yard in 1997 on suspicion of fraud" · "This is a classic bate and switch scam" · "I believe this operation is a boiler room type operation" · "Through a collapsible daisy chain of shell companies...that is the Elan Suisse setup" · An apparently new Elan Suisse entity just popped up! It's called Nicogel" ·"What about Elan Suisse RSA? I believe that the RSA operation is a front to legitimize the whole business operation in Zimbabwe" · "Neither Elan Suisse nor Cormick are what they are represented to be" · "CEO Elan Capital SA [See above this is a shell company]" ·"To the shock of finding out I have been scammed by someone I trusted". (Posted May 31, 2006) 11. The statements and innuendos contained in Christ's Website

"elansuisse.co.za." are deliberately false, malicious and misleading and were made for the sole purpose of trying to force a settlement and/or return of the money that Christ had invested in the Elan Suisse Holdings Co. in Delaware.

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12.

Christ's inappropriate, defamatory and disparaging statements against

Elan Suisse and its key officers and directors, have caused Elan to lose investors and make it difficult to attract any investors. (See the attached Affidavit of Brett Cormick, Peter John Kipps, Apostolos Zographos and Anthony John Carter, attached hereto respectively as Exhibits "B", "C","D"and "E"). COUNT I Commercial Disparagement 13. Plaintiff repeats and re-alleges each and every allegation contained in

paragraphs one (1) through twelve (12) with the same force and effect as if set forth fully herein. 14. Christ intentionally and negligently disseminated false, malicious and

misleading statements on his internet Website and through e-mail communications to Plaintiff's investors, potential investors and customers by posting on his Website completely false, malicious and misleading information about the Plaintiff Company, its key operating Officers, company employees, and others associated with Plaintiff. 15. Christ was aware that these statements were false and knew or reasonably

should have known that the statements would likely result in harm to Plaintiff's business and result in detering other potential investors and current investors from dealing further with Plaintiff Company. 16. Christ's false statements played a material and substantial part in deterring

Plaintiff's potential investors and current investors to not invest in the Company or to limit their investments with the Company and even cause losses to current investors.

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17.

As a direct and proximate result of the aforesaid conduct, Plaintiff has

been damaged in an amount that will be proven at trial and is expected to be in excess of Fifty Thousand Dollars ($50,000.00). 18. That Defendant Christ's continued use of the Website wherein he has and

continues to post false, misleading, defamatory, malicious and damaging statements has and will continue to cause irreparable harm to Plaintiff and the reputation of its officers, potential investors, current investors and employees to which immediate equitable relief is necessary. WHEREFORE, Plaintiff Elan Suisse, prays that this Honorable Court (i) enjoin Robert D. Christ from making the aforesaid defamatory and disparaging statements with respect to Elan Suisse and any employees, investors or anyone who was or has been associated with the Elan Suisse Group. And furthermore, that Mr. Christ immediately cease and desist from operating any Website using the protected name Elan Suisse or any Website with any similar, misleading or confusing designation which would lead anyone to believe it was an official site of Elan Suisse; (ii) enter judgment for Elan Suisse and against Robert Christ and award all compensable damages, costs, prejudgment and post judgment interest, and attorney fees; and (iii) provide such other and further relief as this Court deems necessary and just. COUNT II VIOLATION OF §43(a)(1)(A)(B)OF THE LANHAM ACT 19. Plaintiff repeats and re-alleges each and every allegation contained in

paragraphs one (1) through eighteen (18) with the same force and effect as if set forth fully herein.

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20.

Section 43 (a)(1)(A) of the Lanham Act states follows: (a)

Civil Action. (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol or device, or any combination thereof., or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which... (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person...shall be liable in a civil action. 15 U.S.C. §1125(a) (1) (A). 21. Defendant has violated said Sections of the Lanham Act by his malicious,

false and misleading use in commerce of the "Elan Suisse" name as above described. WHEREFORE, Plaintiff Elan Suisse, prays that this Honorable Court (i) enjoin Robert D. Christ from making the aforesaid defamatory and disparaging statements with respect to Elan Suisse and any employees, investors or anyone who was or has been associated with the Elan Suisse Group. And furthermore, Christ be prohibited, directly or indirectly immediately cease and desist from operating any Website using the name Elan Suisse or any Website with any similar, misleading or confusing designation which would lead anyone to believe it was an official site of Elan Suisse; (ii) enter judgment for Elan Suisse and against Robert Christ and award it all compensable damages, costs, prejudgment and post judgment interest, and attorney fees; and (iii) provide such other and further relief as this Court deems necessary and just. COUNT III VIOLATION OF LANHAM ACT §43 (1)(d)(1) (A) (i) (ii) (I) (II)

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22.

Plaintiff repeats and re-alleges each and every allegation contained in

paragraphs one (1) through twenty-one (21) with the same force and effect as if set forth fully herein. 23. Section §43 (d) (1) (A) (i) (ii) (I) (II) of the Lanham Act states as follows: (d) Cyberpiracy prevention.

(1)(A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person... (i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and (ii) registers, traffics in, or uses as domain name that... (I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark; (II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark. 24. Defendant has violated said Sections by acting in bad faith by

intentionally registering and using the domain name of "Elan Suisse". WHEREFORE, Plaintiff Elan Suisse, prays that this Honorable Court (i) enjoin Robert D. Christ from making the aforesaid defamatory and disparaging statements with respect to Elan Suisse and any employees, investors or anyone who was or has been associated with the Elan Suisse Group. And furthermore, that Mr. Christ immediately cease and desist from operating any Website using the name Elan Suisse or any Website with any similar, misleading or confusing designation which would lead anyone to believe it was an official site of Elan Suisse; (ii) enter judgment in Elan Suisse favor and against Robert Christ and