Free Answering Brief in Opposition - District Court of Delaware - Delaware

_ ` Case 1 :04-cv-01486-JJF Document 8 Filed O3/O4/2005 Page 1 of 4
TN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Robert H. Kalk pro se
833 North Van Buren Street
Wilmington, DE 19806
240-38 1-52 89
Plaintw
vs. Civil Number: 04-1486
Fairfield Language Technologies et al
l35 W. Market St.
Harrisonburg VA 22801
540-432-6166
Eugene Stoltzfus
3893 Mountain Valley Rd
Keezletown, VA 22832-2100 rg
540-269-2005
Kathryn S. Fairfield
165 S. Main Street JPL
Harrisonburg, VA 22801 1
540-434-0059 :2: T
TT
Defendants 4,,;
F` "` Q .
Opposition to Defendants Renewed Motion to Dismiss
Renewed Request for Hearing on the Merits of Motion
Now the Plainti]@ having received and read the Defendant’s Latest Motion to Dismiss,
respectfully states as follows:
l Council for the Defendant is attempting to minimize the serio asness of Defendant Kathryn
F airfield ’s perjures statements and the subornattbn thereof Said statements were contained
in Kathryn Fairfield’s Affidavit wherein she made the false claim that Fairfield Language
Technologies does not solicit business in Delaware. Defendant, through Counsel in the most
recent Motion, has admitted to having purposefully availed themselves of conducting activity
ht the forum, which, in the instant case, would be Delaware. The Def`endant’s attomey has
provided evidence in the form of a copy ofthe website for USCity.Net. And Defendant
Fairfield has admitted, through her attorney, that the company paid $149 for inclusion in a
Opposition to Motion - Kalk vs. Fairlield
Paget of3 - Filed 3l4t2005

A Case 1:04-cv-01486-JJF Document 8 Filed O3/O4/2005 Page 2 of 4
directory for "all fifty states. The Def`endant’s solicitation of business in these fifty states is far
from "passive" when they actively contract for link placement in state directories. For
Defendant to assert now that they did not solicit business in one of those fifty states is, not
only evidence or perjury, but it insults the intelligence of the Court and all that shall be
perusing the public record upon publication. While the Court opined in 2004 WL 2346137
(D.Del.)) that "Mere accessibility of a website, though, is not a matter of much moment" the
Court went on to say that "It is interactivity and the conducting of business over the Intemet
that carries Jurisdictional consequences? And;
2 The Defendants are attempting to mislead the Court through a confused and narrow
disintegration ofthe truth. What the Defendants do not want the Court to see is the so-called
Non—Competition and Property Rights Agreement (attached) that imposes the will of Fairfield
Language Technologies upon employees and former employees as they may be situated
anywhere in the world, including Delaware. Their highly selective amplification and
contextualization of salient case law includes 2004 WL 2346137 (D.Del.)). The Defendant’s
Counsel hits repeatedly upon the self-serving points but ignores the statutory provisions cited
by the Court in that case and specifically the part about causing tortuous injury in the State by
an act or omission in this State. The Defendant placed phone calls and wrote letters to Auralog
in Paris, France as well as Phoenix, Arizona to express their displeasure about various issues.
In one or more of those out-of-state communications Defendant Fairfield threatened litigation
with Auralog over the Employment of the Plaintiff, The Plaintiff was then, and currently
remains, resident in Wilmington, Delaware. With reference to the above cited case and
statutory provision, the Court Opinion included the following statement and quotation: “The
above provisions have been construed "liberally so as to provide jurisdiction to the maximum
extent possible" in order "to provide residents a means of redress against those not subject to
personal service within the state." Boone v. Q; Partek Ab, 724 A2d 1150 1156-57 (Del.Suger.
1997Q.
4 This action was properivjiled under Diversity of Cthzenship. The Plaintiff is resident in
Delaware and was in Delaware at the time the Defendants hateful and malicious conduct
caused harm to the Plaintiff. The Defendants are either resident or registered in Virginia.
Whereas, the Plaintw prays this honorable Court will,
l Schedule a Hearing to examine the False and Misleading Statements contained in the Defendants
Motion and Accompanying Brief
2 Grant a reasonable period of Discovery prior to the Hearing.
3 Deny the Defendants Motion to Dismiss.
4 Grant a Declaratory Judgment Stating that the attached "Non-Competition Agreement" is null and
void.
Opposition to Motion - Kalk vs. Fairiielcl
Page 2 ¤t 3 - Filed 1U4t2005

y . Case 1 :04-cv-01486-JJF Document 8 Filed O3/O4/2005 Page 3 of 4
Submitted March 4, 2005 by
.- »- -— ~
0``· Robert H. K k, pro se
Certificate 0f Service
I, Robert H. Kalk, hereby certify that on this 4m day of March, 2005, I caused two (2) true and correct
copies of the forgoing to be served upon the Attomey listed below for the Defendants, in the above
captioned matter, via First Class, U.S. Mail.
Judith M. Kinney
1201 North Market Street, Suite 1500
Wilmington, DE. 19801
Robert .K — 03-04-2005
Opposition to Motion - Kaik va Fairfield
Page 3 of 3 - Filed 3l4I2005

_ Case 1 :04-cv-014586-JJ F D0cume,gr_iR§,_DG Filed O3/O4/2005 Page 4 BME 5
‘ 1e/oexzooa 13: 52 @@829954
Rosett one
Language Learning - Success
NON-COMPETITION AND PROPERTY RIGHTS AGREEMENT
THIS AGREEMENT is made this L day of at-ol! ,200 joy and betvreen________________ i"Employee")
and Fairfield Language Technologies, a Virginia corporation ("Employer').
WHEREAi.,thrr execution of this Agreement by Employee is a material inducement to the Employees continued
employment. .
NOW, Tl- EE REFDRE. for valuable consideratio n.the sufficiency of which is hereby acknowledged, Employer and Employee
agree as follows:
1. Term. This Agreement will be ettective as ofthe date signed and shall continue for a period of t2 months after the date
of termination (the 'Termination Date") of Employees employment with Employer {the "Agreement Term").
2. Covenant Not To Compete. Employee covenants and agrees that during the Agreement Term Employee will not, directly
or indirectly. engage or be interested in (as owner, partner, member, shareholder. director, officer, employee, agent, security
holder, creditor; consultant or otherwise) any business, tirm, person, partnership, limited liability company, corporation or
any other seraity which is in competition with Employer in the language learning industry.
3. Agreement Not to Solicit. Employee agrees that, during the Agreement Term. Employee will not hire, nor encourage any
other person or entity to hire, any person who was employed by Employer on the Termination Date, nor sollcit,entice.per-
suacle or in-three, directly or indirectly, any person or entity doing business with Employer at any time preceding the 1
Termination nate to terminate such relationship.
4.Rem edy for Elreach. Should a court of competent jurisdiction find the time or scope for non-competitive activity by
- Employee unduly restrictive, Employee agrees in that event the court shall determine what is reasonable and Employee
shall abide hg.- that determination as though the same were originally Incorporated herein. Should Employee breach this
agreement Er nployee agrees to indemnify Employer for all damages incurred to enforce lt. including attorney fees.The
right of either party to require strict performance bythe other shall not be affected by any previous waivec forbearance,or
course of dee ing. .
5.Validity of Covenants. Employee agrees that the covenants contained in this Agreement are reasonably necessary to
protect the legitimate interests of Employer; are reasonable with respectto time and scope,and do not interfere with the
interests of th >r public. Employee further agrees that the descriptions of the covenants contained In this Agreement are
sufficiently acaurate and definite to lnforrn Employee ofthe scope of the covenants.
6. Property Rights. Employee hereby assigns to Fairfield exclusive right. title and interest to all ideas or inventions which
originate with Employee in whole or in part during the period of empioymennwhether written or not, and whether or not
patentable or rwligiole for protection under copyright law. Employee agrees to assist Fairfield. at Falri·ieid's own expense,to
obtain tradern rrks and execute all documents. Howeven nothing in this paragraph shall apply to ideas or inventions ii}
developed on che Employees own time, (2i without the use of trade Secrets (confidential information that confers a com-
petitive advan ¤ age and is not generally known outside the company) or com pany supplies, equipment, facilities, or prop-
erty, and (3) which is not based on any worit performed for Fairfield or relate to Fairtields business or actual or demonstra- y
biy anticipated research or development. -
7. Controlling tam. `lhls Agreement shall be construed according to the laws of the Commonwealth of Virginia.
8. Severability. irach provision of this Agreement shall be considered separable. lf for any reason any provision is deter-
mined to be int·aild_. such invalidity shall not impair or otherwise affect the validity of the other provisions of this
Agreement. Mrrreovecthe parties agree to replace the invalid provision with a substitute provision that will satisfy the
intent of the parties. _
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and shall bind and lnure to the
benefit of Employer and Employee.
1 Orlilfulver. The Frriiure of Employer to insl$¢ upon strict adherence to any term of this Agreement on any occasion shall HDI
be considered rt waiver thereof or deprive Employer of the right thereafter to insist upon strict adherence to that term or
any other term of this Agreement. .
WlTNESS the Edloltgsignature. -
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