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26-Sep-2002    Motion-to-Quash-D    Case BC271433    Judge James R. Dunn
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Defendant Prytulak's "Motion-to-Quash-D" gets filed on 26-Sep-2002, as evidenced by the stamp at right.  This paper represents a compromise in a battle in which the LASC refuses to evaluate its own jurisdiction while Prytulak continues to challenge that jurisdiction.  Recent skirmishes in that battle:
  1. The Court demanded that Prytulak's submission request only vacating default but not quashing service.
  2. Prytulak complied to the extent of providing a title that gave vacating default top billing, but continued to request quashing service.
  3. Under pressure, the Court filed the Prytulak submission on the anticipation that the Court will be able to consider vacating default during the proceeding of 12-Nov-2002 (subsequently moved to 25-Nov-2002), but will continue to be able to ignore quashing service, and thus avoid staring into the face of its own lack of jurisdiction.

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Prytulak
Notice of Motion to Vacate Default or Default Judgment
joined with
Notice of Motion to Quash Service of Summons
for Lack of Personal Jurisdiction

Rambam vs Prytulak    Case BC 271433


Los Angeles Superior Court
September 25, 2002



In propria persona:

Lubomyr PRYTULAK
[Address]

Telephone: [Telephone]
Email: [Email]



SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES




Steven Rambam,

Plaintiff,

vs.

Lubomyr Prytulak,

Defendant. 

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Superior Court Case No. BC 271433

MOTION TO VACATE DEFAULT OR DEFAULT JUDGMENT
JOINED WITH
MOTION TO QUASH SERVICE OF SUMMONS
FOR LACK OF PERSONAL JURISDICTION

[Not a general appearance CCP §418.10]



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TABLE OF CONTENTS


  1. INTRODUCTION    

    1. Nature Of Action    
    2. Identification of Parties    
      • Plaintiff Steven Rambam    
      • Defendant Lubomyr Prytulak    
    3. Summary of Facts Re Default    
    4. Summary Of Facts Re Jurisdiction    
    5. Summary Of Argument    

  2. EXTENSION OF THE DEFENDANT'S TIME TO QUASH    

    1. Distance Presented Barriers to an Effective Reply    
    2. Plaintiff Failure to Reclassify Resulted in the Loss of Defendant's Option of Redeeming His Defective Motion to Quash    
    3. Plaintiff Sowed Confusion by Allowing a Three-Month Overlap in Cases Sharing a Cause of Action    
    4. The Date of Default Entry Was Shifted One Month    
    5. The Court Lost Defendant's 29-Aug-2002 Motion to Vacate Default and Quash Service    

  3. BECAUSE THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANT Prytulak, THE COURT SHOULD SET ASIDE ANY DEFAULT OR DEFAULT JUDGMENT AND QUASH SERVICE OF PROCESS    

    1. The court lacks personal jurisdiction over Defendant Prytulak    

      1. General Jurisdiction Is Absent In This Case    
      2. Specific Jurisdiction Is Absent In This Case    

        1. Prytulak has had no purposeful contact with California and has not purposefully availed himself of the benefits of the forum state    
        2. The Claim does not arise from Prytulak’s forum-related activities    
        3. Exercise of jurisdiction would not be reasonable in this case    

  4. CONCLUSION    

  5. MOTION DATE    

  6. TABLE OF AUTHORITIES    

  7. PROOF OF SERVICE    

  8. PRYTULAK DECLARATION    

  9. EXHIBITS A-F

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I.   INTRODUCTION

Defendant LUBOMYR PRYTULAK submits this memorandum in support of his pending motion to vacate default or default judgment and to quash service of process.  Defendant’s motion, and all attendant papers and actions, are intended to serve as a special appearance pursuant to section 418.10 of the California Code of Civil Procedure (CCP).  Furthermore, Defendant neither consents nor submits to the jurisdiction of this Court, instead, contesting jurisdiction by way of this motion.

  1. Nature Of Action

    Plaintiff Rambam seeks damages from Defendant Prytulak for posting two allegedly defamatory documents on Defendant's web site, the Ukrainian Archive at www.ukar.org.  The documents, however, were posted so as to be readable by everyone in the world with Internet access, such that if anyone in California had ever happened to read them, such an occurrence would be merely fortuitous, and could not provide grounds for personal jurisdiction absent any other contacts between Prytulak and the forum state.

  2. Identification of Parties

  3. Summary Of Facts Re Default

    Defendant Prytulak requests the Court to vacate default or default judgment on two bases:

    • The Court lacks personal jurisdiction over Defendant Prytulak; therefore, any default or default judgment are void.

    • Errors and irregularities in Plaintiff conduct occasioned delay in Defendant responses, which made default entry possible.

  4. Summary Of Facts Re Jurisdiction

    Plaintiff Rambam alleges that Defendant Prytulak posted two defamatory documents on his web site, the Ukrainian Archive, at www.ukar.org.

    However, Defendant is a Canadian citizen living in Canada who has never engaged in any business in California or with Californians, and who since attending Stanford University as a graduate student in 1966-1969 has not again set foot in California (see declaration of Lubomyr Prytulak filed concurrently herewith, hereinafter referred to as "
    PRYDEC" at par. 1-6); and Defendant has never availed himself of the benefits or protections of California law (PRYDEC at par. 7); and Defendant's ukar.org web site is "passive," involving neither an interactive exchange of information with users, nor any intentional directing of its information at the residents of California, nor soliciting contact with residents of California (PRYDEC at par. 8) — for which reasons, the Court lacks personal jurisdiction over the Defendant, either general or specific.

  5. Summary Of Argument

    By way of this pending motion, Defendant asks this Court to set aside default or default judgment because the Court's lack of personal jurisdiction over the Defendant voids default, and also because default entry was obtained by Plaintiff sowing confusion.

    By way of this pending motion, Defendant also asks this Court to quash service of process on the grounds that this Court lacks power to exercise personal jurisdiction over Defendant.  Defendant is not a California resident and is not domiciled in California, has no contacts, no ties, no relationship with California, was not served within California, and has not consented to or appeared in the California action (Pennoyer v. Neff 95 U.S. 714, 733 (1877)).  Therefore, there is no constitutionally sufficient basis for this Court to assert personal jurisdiction over Defendant.  Accordingly, this Court must quash service of process and set aside any existing default or default judgment as void (CCP §473(d); CCP §418.10(d)).  04][05


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II.   EXTENSION OF THE DEFENDANT'S TIME TO QUASH

The sole purpose of the present section is to demonstrate that there does exist "good cause" for the court to extend Defendant's time to quash service of summons, as is permitted for a motion to quash:

CCP §418.10.  (a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:
     (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

That "good cause" exists for the extension of time to quash service of summons is supported by at least the following four considerations.

  1. Distance Presented Barriers to an Effective Reply

    Defendant asks the Court to consider that it was always his intention to challenge jurisdiction by means of a motion to quash, and that he attempted to do so, but was hampered by the great distance between Los Angeles and Vancouver, and by the attendant local inaccessibility of resource materials and personnel knowledgeable in California law and procedure, and as well by misperceptions of events in Los Angeles invited by the fragmentary information making its way northward.  Particularly damaging was the Court's seeming unresponsiveness to Defendant epistolary requests for guidance.  For example, one may assume that a motion without accompanying fee delivered to the court by hand would lead to the Court requesting payment, whereas the same motion without fee delivered by mail led to no reply from the Court, as did not a series of written requests to disclose defects in Defendant submissions so that they could be corrected.  The minimum that it may be safe to conclude is that the California justice system is not designed to be either accessible or transparent from foreign lands, and which recommends caution in extending jurisdiction over great distances.

    Although it would be unprofitable to attempt a comprehensive cataloguing of the obstacles that stood in the way of Defendant's placing his jurisdictional challenge before the court, the three irregularities described below support the proposition that pitfalls were placed in Defendant's path which obstructed his progress and heightened his confusion.

  2. Plaintiff Failure to Reclassify Resulted in the Loss of Defendant's Option of Redeeming His Defective Motion to Quash

    Plaintiff originally commenced his action under limited jurisdiction in Case 02E00326 (see
    Exhibit C).  In reply, Defendant submitted a motion to quash (almost identical to the one later submitted in Case BC271433, which is Exhibit E), which was acknowledged in the Case Summary on the Los Angeles Superior Court web site on 04/08/2002 as CORRESPONDENCE FROM LUBOMYR PRYTULAK FILED (see Exhibit C), encouraging Defendant to believe that defects in his motion were not being brought to his attention for correction because the Court opted for evaluating challenge to jurisdiction under its own motion.

    Upon Plaintiff's wishing to expand the amount claimed from $25 thousand to $1.55 million, his proper course would have been to file a motion for reclassification, which would have required payment of a reclassification fee, as specified in CCP §403.010-403.090.  Specifically:

    CCP §403.020.  (a) If a plaintiff [...] files an amended complaint or other amended initial pleading that changes the jurisdictional classification from limited to unlimited, the party at the time of filing the pleading shall pay the reclassification fee provided in  05][06  Section 403.060, and the clerk shall promptly reclassify the case.

    If Plaintiff had proceeded properly by means of a motion to reclassify, then the commencement of the reclassified action would have been the same as that of the original action filed, Case 02E00326, and the Defendant's motion to quash in Case 02E00326 would have been saved (thus keeping open the possibility of its defects being corrected, and in any case keeping open the possibility that the Court had been prompted to evaluate jurisdiction under its own motion):

    CCP §403.070.  (a) An action or proceeding that is reclassified shall be deemed to have been commenced at the time the complaint or petition was initially filed, not at the time of reclassification.
         (b) The court shall have and exercise over the reclassified action or proceeding the same authority as if the action or proceeding had been originally commenced as reclassified, all prior proceedings being saved.

  3. Plaintiff Sowed Confusion by Allowing a Three-Month Overlap in Cases Sharing a Cause of Action

    Exacerbating Plaintiff's failure to reclassify was his allowing the original Case 02E00326 to remain pending even after Case BC271433 had commenced, the two overlapping for an interval approaching three months (which can be gleaned from an examination of Exhibits C and D):

    09-Jan-2002  02E00326 filed
    04-Apr-2002  BC271433 filed
    24-Jun-2002  02E00326 dismissed

    Defendant instantly perceived this overlap as impermissible from its exposing the Defendant to double jeopardy, and by its exposing the court to the possibility of embarrassment from handing down inconsistent judgments.  Defendant conjectured that as an overlap was clearly impermissible, the appearance of overlap must be illusory, and so that a reclassification must in fact have taken place, with BC271433 being an amended continuation of 02E00326, and with Defendant's original motion to quash having been saved, such that it need not be resubmitted, which conclusion inevitably resulted in delay being added to the resubmitted motion's other defects.

    So serious may be the Plaintiff error of engaging in two suits overlapping both in the cause of action and in time, that it conceivably could nullify all BC271433 proceedings on the ground that the filing of the BC271433 complaint was impermissible.  An attempt to redeem Case BC271433 by shifting its deemed commencement to the date on which Case 02E00326 was dismissed (24-Jun-2002) would necessitate an almost three-month shifting of all deadlines, and would bring the recognition of the unacceptability of retroactively superimposing shifted deadlines upon litigants who could not have been conscious of the shifted deadlines at the time.

    Plaintiff failing to deal adequately with the earlier Case 02E00326 prior to commencing Case BC271433 is underlined by Plaintiff to this day neglecting to comply with Court Rules 7.3(d-f).  That is, the two Rambam vs Prytulak Cases 02E00326 and BC271433 are clearly "related" according to the definitions in Court Rule 7.3(f), and not just for one or some of the reasons 7.3(f)(1)(a-d) but for all four reasons, and given that Cases 02E00326 and BC271433 are so related, Court Rule 7.3(f)(2) requires Plaintiff to "file and serve upon all parties of record a Notice of Related Case(s)," which Plaintiff has never done, and certainly not within the 15-day interval which Court Rule 7.3(f)(2)(a) allows.

    As the only motions that Prytulak presently submits to the Court are the motion to vacate default and the motion to quash, the possibility that the filing of the BC271433 claim was invalid is raised here not to support any separate motion, but only for the sake of demonstrating that in the absence of an unambiguous filing, all deadlines that might have  06][07  been relied upon may understandably have been perceived by Defendant as questionable, and may have occasioned a pardonable delay.

  4. The Date of Default Entry Was Shifted One Month

    Although it is not needed, one further piece of evidence that irregularities in Case BC271433 invite confusion concerning case chronology is that the Court's minute order (dated 15-Aug-2002) twice (once on p. 1 and once on p. 2) locates default entry on 24-May-2002, and offers as one justification for default entry that the Defendant motion to quash (submitted, but unfiled because defective) arrived five days too late — on 29-May-2002 (see
    Exhibit F).  In fact, however, default was entered exactly one month later than represented — that is, on 24-Jun-2002 — such that Defendant's defective motion to quash (Exhibit E) arrived almost a month before default entry (as is evident in Exhibit D), and thus in good time for defects to be noted and corrected.

  5. The Court Lost Defendant's 29-Aug-2002 Motion to Vacate Default and Quash Service

    On the morning of 25-Sep-2002, the Court informed Defendant Prytulak by telephone that it had lost not only his Motion to Vacate Default and to Quash Service dated 29-Aug-2002 and delivered to the Court 30-Aug-2002, but also his American Express Worldwide Money Order, No. 107746731 covering the filing fee.  The instant motion is largely the same document as the lost one.  The time lost does not appear to be the fault of Defendant Prytulak.

For all the above reasons, Defendant asks the Court to allow the filing of the present motion to vacate default or default judgment and motion to quash.


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III.   BECAUSE THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANT Prytulak, THE COURT SHOULD SET ASIDE DEFAULT OR DEFAULT JUDGMENT AND QUASH SERVICE OF PROCESS

California courts are empowered to exercise personal jurisdiction on any basis consistent with the State or Federal Constitution (CCP §410.10).  In this regard, a court may exercise personal jurisdiction over a non-resident defendant only when the defendant has such minimum contacts with the forum state that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice" (Felix v. Bomoro Kommanditgesellschaft (1987) 196 Cal.App.3d 106, 111 [citing International Shoe Co. v. Washington 326 U.S. 310, 316 (1945)]; Helicopteros Nacionales de Columbia v. Hall 466 U.S. 408, 414 (1984).  Moreover, minimum contacts are measured on a case-by-case basis and the ultimate test is whether "California has a sufficient relationship with the [particular] defendant and litigation [as] to make it reasonable ("fair play")..." to require the defendant to defend the litigation in California (Weil & Brown, Cal.Prac.Guide: Civ.Pro.Before Trial, (The Rutter Group 1999) §3:202 at 3-41.2.  Additionally, any default or default judgment entered without jurisdiction over the defendant is necessarily void.

  1. The court lacks personal jurisdiction over Defendant Prytulak

    The personal jurisdiction analysis is broken down into two questions: [1] does "general" jurisdiction exist; and [2] absent "general" jurisdiction, does "specific" jurisdiction exist (see Brown v. Watson (1989) 207 Cal.App.3d 1306, 1312).  In other words:

    If a defendant has sufficient extensive 'contacts' with the forum state, it may be subject to suit there on all claims wherever they arise [i.e., general jurisdiction]....  [In] other cases, the jurisdictional sufficiency of the defendant's contacts depends on an assessment of the 'relationship among the defendants, the forum, and the litigation [i.e., specific jurisdiction]'.     (Sammons Enterprises, Inc. v. Superior Court (1988) 205 Cal.App.3d  07][08  1427, 1432)

    As explained below, neither "general" nor "specific" jurisdiction are present in this case.

    1. General Jurisdiction Is Absent In This Case

      General jurisdiction depends upon substantial, continuous, and systematic contacts between the defendant and the forum state.  Perkins v. Benguet Mining Consolidated Mining Co., (1952) 342 U.S. 437, 447-448; KLM v. Superior Court, (1951) 107 Cal.App.2d 495, 500; Sammons Enterprises, Inc. v. Superior Court, supra, 1434; Secrest Machine Corp. v. Superior Court (1983) 33 Cal.3d 664, 669.  In this case, Defendant Prytulak's contact with California is anything but substantial, continuous, or systematic (
      PRYDEC par. 1-7):

      1. Defendant is a Canadian citizen who resides in Canada.

      2. Defendant has never engaged in business in California, has never solicited business in California, has never maintained a place of business in California, has never held a California business license, has never travelled to California for business purposes, and does not have clients or agents or employees in California.

      3. Defendant has never designated a registered agent for service of process in California.

      4. Defendant has never recruited a California resident, directly or through an intermediary located in California, for employment in or out of California, nor has he ever contracted by Internet or mail or telephone or otherwise with a California resident, which contract was to be performed by either party in whole or in part in California.

      5. Defendant has never owned property in California.

      6. Defendant maintained a mailing address, telephone number, and bank account in California only while a graduate student at Stanford University during the interval 1966-1969, and only for non-business purposes.  Defendant has not set foot in California since 1969.

      7. Defendant has not availed myself of the benefits and protections of the laws of California, did not commit any act that would have placed him on notice that he was subject to the call of a California Court, and so could not reasonably anticipate being haled into court in California.

      In short, Defendant has never engaged in any business activities whatever in California, much less any activities that may be described as substantial, continuous, or systematic.  Hence, there is no basis for California to exercise general jurisdiction over Defendant Prytulak.  Since California has no real relationship with this Defendant, it is not reasonable to require Prytulak to defend pending litigation in California.

    2. Specific Jurisdiction Is Absent In This Case

      Specific jurisdiction depends upon a showing that the non-resident defendant purposefully established contacts with the forum state, that the plaintiff's cause of action arises out of the defendant's forum-related contacts, and the forum's exercise of personal jurisdiction comports with fair play and substantial justiceBurger King v. Rudzewicz, 471 U.S. 462, 472, 476-78 (1985); Cornelison v. Chaney, (1976) 16 Cal.3d 143, 148.  In other words:  08][09

      Where a non-resident defendant's activities in the forum are not so pervasive as to justify the exercise of general jurisdiction over him, then jurisdiction depends upon the quality and nature of his activity in the forum in relation to the particular cause of action....  Thus, as the relationship of the defendant with the state seeking to exercise jurisdiction over him grows more tenuous, the scope of jurisdiction also retracts and fairness is assured by limiting the circumstances under which the plaintiff can compel him to appear and defend.     (Brown v. Watson (1989) 207 Cal.App.3d 1306, 1312-1313)

      Thus, specific jurisdiction is determined under a three-part test: "(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable."     (JDO v. Superior Court, supra, 7-8, citing Panavision International., L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316, 1320.)

      The aforesaid requirements are absent in this case:

      1. Prytulak has had no purposeful contact with California and has not purposefully availed himself of the benefits of the forum state

        First, this case does not involve purposeful contact between Defendant and California.  A "purposeful" contact is one in which a particular defendant has deliberately directed his activities at the residents of the forum state or has deliberately availed himself of the benefits and protections of the laws of the forum state (Hanson v. Denckla, (1958) 357 U.S. 235, 253-254; See Also Sibley v. Superior Court, (1976) 16 Cal.3d 442, 447-448).  Stated in the converse, personal jurisdiction does not extend to a non-resident defendant by virtue of "random, fortuitous or attendant..." contacts over which the defendant had no control (Burger King v. Rudzewicz, 471 U.S. 462, 475-76, 485 (1985).  Furthermore, unilateral activity on the part of the plaintiff or others over whom the non-resident defendant has no control does not translate into a purposeful contact on the part of the defendant (Helicopteros Nacionales v. Hall, 466 U.S. 408, 416-417 (1984).

        As declared in
        PRYDEC par. 8, the Ukrainian Archive web site at www.ukar.org passively disseminates information over the Internet for the purpose of refuting the defamation of the Ukrainian people and of the Ukrainian nation, and does so without in any way targeting or soliciting California residents.  If the information on ukar.org does reach Californians, then it does so incidentally and peripherally to reaching people everywhere.  Assuming, arguendo, that any California resident contacted the subject web site, such contact would have been fortuitous.  Accordingly, Defendant Prytulak cannot be described as having purposeful contact with California.

        Courts have established guidelines in cyberspace cases where the plaintiff attempts to utilize the "effects test" (Calder v. Jones 465 U.S. 783 (1984)) to satisfy the "purposeful availment" requirement of specific jurisdiction:

        [T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.  This sliding scale is consistent with well developed personal jurisdiction principles.  At one end of the spectrum are situations where a defendant clearly does business over the Internet.  If the defendant enters into  09][10  contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper.  [Citation.]  At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions.  A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction.     (JDO v. Superior Court, supra, at 15)

        Here, Prytulak has at most offered information on a passive web site.  Assuming, arguendo, that the information reached California residents, such contacts would be insufficient to establish specific jurisdiction (Id; and see also Cybersell, Inc. v. Cybersell, Inc, 130 F.3d 414 (9th Cir. 1997).  In JDO v. Superior Court, supra, the Court of Appeal reversed the trial court's denial of a defendant's motion to vacate default judgment and quash service of process where the defendant had made allegedly defamatory statements (the subject of the lawsuit) on his Web site, used the U.S. mail to contact a California resident, previously resided in California, and contracted with a California Internet service provider (ISP) to host his Web site in question.  In the instant case, the forum contacts are even less substantial than those in JDO in that Prytulak's student-days contact with California is even more ancient, and in that Prytulak's ongoing contact with California has totally evaporated, and in that Prytulak presently resides on the other side of an international boundary.  Thus, this Court should follow the Appellate Court’s holding in JDO, set aside any default or default judgment, and quash service of process based on a lack of purposeful availment.

      2. The Claim does not arise from Prytulak’s forum-related activities

        Second, Plaintiff's cause of action does not relate to any local activities on the part of Defendant Prytulak.  Personal jurisdiction is restricted to situations wherein a particular cause of action relates to or "arises out of" the defendant's forum-related activities (JDO, supra, at 8 and Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 444-445 (1952).  In this case, Rambam alleges that Prytulak published defamatory material, but not that Rambam's alleged harm was caused by this material being directed to California residents.  Indeed, whether Prytulak's alleged publication happened to reach this particular forum is irrelevant to Rambam's claim.  Thus, it cannot be said that the Plaintiff's claim arises from or relates to Prytulak’s contact with this forum.

        Furthermore, the question of whether either of the two Internet Service Providers that have hosted the Ukrainian Archive have offices in California, or whether the computers on which the Ukrainian Archive resided were located in California, has not been raised, and would be irrelevant if raised:

        Defendants' conduct of contracting, via computer, with Internet service providers, which may be California corporations or which may maintain offices or databases in California, is insufficient to constitute "purposeful availment" and does not satisfy the first prong of the three-part test for specific jurisdiction.     (JDO v. Superior Court, supra, at 17)

      3. Exercise of jurisdiction would not be reasonable in this case

        Third, it is unreasonable, and thus constitutionally offensive, to impose personal jurisdiction in this case.  In ascertaining reasonableness in applying personal jurisdiction, Courts balance the following factors:  10][11

        The interest of the state in providing a forum for its residents or in regulating the business involved...; the relative availability of the evidence and the burden of defense and prosecution in one place rather than another...; the ease of access to an alternative forum...; the avoidance of multiplicity of suits and conflicting adjudications...; and the extent to which the cause of action arose out of defendant's local activities....     (Fisher Governor Co. v. Superior Court, (1959) 53 Cal.2d 222, 225-26)

        There exist no overriding policy considerations that compel California to assert jurisdiction over Prytulak, a Canadian citizen living in Canada.  This case has nothing to do with any activities that Defendant performed in California.  In point of fact, Prytulak has performed no activities in California, or with residents of California, that could give rise to the pending litigation.

        Additionally, because Prytulak is domiciled in Canada 1072 miles distant from Los Angeles as the crow flies, and 1291 miles distant as the car drives, and has no contact with, or reason to come to, Los Angeles, it would necessarily be a substantial burden on Prytulak to defend this action in California.  A calculation which demonstrates not only the burden on Prytulak, but as well a collective burden which contraindicates Court jurisdiction, is that for Plaintiff and Defendant to attend a single meeting in Los Angeles requires total round-trip travel of 6,564 crow-flying miles.

With the above factors in mind, it is evident that the balance weighs heavily against jurisdiction in California.  Therefore, and in the interests of fair play and substantial justice, this Court should not impose jurisdiction in this case.


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IV.   CONCLUSION

Defendant Prytulak did not purposefully establish "minimum contacts" with California, and did not avail himself of the benefits and protections of the laws of California.  Defendant Prytulak did not commit any act that would have placed him on notice that he was subject to the call of a California Court.  Accordingly, Defendant Prytulak could not reasonably anticipate being haled into court in California.  The Court's assumption of jurisdiction over the person of Defendant Prytulak would offend traditional notions of fair play and substantial justice that the California long-arm statute and the United States Constitution seek to protect.

Where the sole complaint is that allegedly defamatory material has been made available over the Internet to every state and country in the world, it cannot follow that personal jurisdiction is available in any state or country in which plaintiff chooses to sue.

For all of the above reasons, California does not have personal jurisdiction over Defendant Prytulak; therefore, Defendant’s motion to vacate default or default judgment and quash service should be granted.


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V.   MOTION DATE

The outer limit for designating the time of a motion to quash is 30 days from filing:

CCP §418.10 (b) The notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice.  The notice shall be served in the same manner, and at the same times, prescribed by subdivision (b) of Section 1005.

Given overnight delivery by FedEx, the inner limit, in turn, appears to be 21 plus 2 days from filing:  11][12

CCP §1005. (b) [...] all moving and supporting papers shall be served and filed at least 21 calendar days before the hearing.  [...]  However, if the notice is served by [...] overnight delivery, the required 21-day period of notice before the hearing shall be increased by two calendar days.

Given a filing date of either 25 or 26 September 2002, then 21-Oct-2002 will be the 25th or 26th day, respectively, which falls comfortably between the two limits.  Therefore, Defendant designates the date of motion as Monday 21-Oct-2002.





DATED: 25 September 2002
By:




Lubomyr Prytulak
Defendant



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TABLE OF AUTHORITIES


FEDERAL CASES
Calder v. Jones, 465 U.S. 783 (1984) 7

Cybersell, Inc. v. Cybersell, Inc, 130 F.3d 414 (9th Cir. 1997) 8

Hanson v. Denckla, 357 U.S. 235 (1958) 6

Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408 (1984) 4,7

Burger King v. Rudzewicz, 471 U.S. 462 (1985) 6,7

Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998) 6

Pennoyer v. Neff, 95 U.S. 714 (1877) 3

Perkins v. Benguet Mining Consolidated Mining Co., 342 U.S. 437 (1952) 5,9

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) 4

STATE CASES
Brown v. Watson (1989), 207 Cal. App. 3d 1306 4,6

Cornelison v. Chaney, (1976), 16 Cal. 3d 143 6

Felix v. Bomoro Kommanditgesellschaft (1987), 196 Cal. App. 3d 106 4

Fisher Governor Co. v. Superior Court, (1959), 53 Cal. 2d 222 9

Floveyor Int. Ltd v. Superior Court (1997), 59 Cal. App. 4th 789 4

Jewish Defense Organization Inc. v. Superior Court of Los Angeles (1999) http://caselaw.lp.findlaw.com/data2/californiastatecases/b129319.pdf

KLM v. Superior Court, (1951), 107 Cal. App. 2d 495 5

Sammons Enterprises, Inc. v. Superior Court (1988), 205 Cal. App. 3d 1427 5

Secrest Machine Corp. v. Superior Court (1983), 33 Cal. 3d 664 5

Sibley v. Superior Court, (1976), 16 Cal. 3d 442 6



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PROOF OF SERVICE

of the document titled

Prytulak Notice of Motion to Quash Service of Summons
for Lack of Jurisdiction
Rambam vs Prytulak    BC271433
Los Angeles Superior Court
September 25, 2002



A copy of the FedEx International Air Waybill is tendered as conclusive and indisputable proof of service of the above document:

This Waybill is a demonstration that FedEx corporation confirms that

  1. a shipment has been deposited with FedEx,

  2. the date of deposit of that shipment 25-Sep-2002,

  3. the sender's name and address is
    Lubomyr Prytulak
    [Address]

  4. the recipient's name and address is
    Gary Kurtz, Esq.
    20335 Ventura Boulevard, Suite 200
    Woodland Hills, California
    USA     91436

  5. and the tracking number is   8363 2765 3681

Furthermore, entering the above tracking number at the FedEx web site at

www.fedex.com/us/

provides the following further confirmatory information:

  1. the exact time that the shipment passed through each stage of its journey from its place of origin to its destination,

  2. the time to the nearest minute of arrival of the shipment at its destination,

  3. the printed name of the person signing for receipt of the shipment,

  4. the signature of the person signing for receipt of the shipment.

As the above method of delivery affords tighter verification than is available by "mail," CCP §1013a describing "proof of service by mail" is considered inapplicable, and CCP §1016.6 (d) is offered as justification for the instant Proof of Service:  14][15 

CCP §1016.6 (d)  The copy of the notice or other paper served by Express Mail or another means of delivery providing for overnight delivery pursuant to this chapter shall bear a notation of the date and place of deposit or be accompanied by an unsigned copy of the affidavit or certificate of deposit.

Also supportive of the instant Proof of Service is California Civil Code Maxim of Jurisprudence 3528, "The law respects form less than substance."



I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date:  September 25, 2002

Name:  Lubomyr Prytulak


Signature: 






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ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and address):          TELEPHONE NO.:

         Defendant without attorney is:
         Lubomyr Prytulak                             [Telephone]
         [Address]

FOR COURT USE ONLY
NAME OF COURT:

         Los Angeles Superior Court
         111 North Hill Street
         Los Angeles, California          USA      90012


     PLAINTIFF/PETITIONER:   Steven Rambam

   DEFENDANT/RESPONDENT:   Lubomyr Prytulak

DECLARATION CASE NUMBER
BC271433


I, Lubomyr Prytulak, the defendant named in Case No. BC271433, declare the following:

  1. I am a Canadian citizen who resides in Canada at the address appearing at the top of this page.

  2. I have never engaged in business in California, have never solicited business in California, have never maintained a place of business in California, have never held a California business license, have never travelled to California for business purposes, and do not have clients or agents or employees in California.

  3. I have never designated a registered agent for service of process in California.

  4. I have never recruited a California resident, directly or through an intermediary located in California, for employment in or out of California, nor have I ever contracted by Internet or mail or otherwise with a California resident, which contract was to be performed by either party in whole or in part in California.

  5. I have never owned property in California.

  6. I maintained a mailing address, telephone number, and bank account in California only while a graduate student at Stanford University during the interval 1966-1969, and only for non-business purposes.  I have not set foot in California since 1969.

  7. I have not availed myself of the benefits and protections of the laws of California, did not commit any act that would have placed me on notice that I was subject to the call of a California Court, and so could not reasonably anticipate being haled into court in California.

  8. My web site, the Ukrainian Archive at www.ukar.org, passively disseminates information over the Internet for the purpose of refuting the defamation of the Ukrainian people and the Ukrainian nation, and does so without in any way targetting California.  If the  17][18  information on my web site does reach Californians, then it does so incidentally and peripherally to reaching people everywhere.

  9. The Pallorium Inc., home page at http://www.pallorium.com as of 28-Aug-2002, showing a New York address, and two New York telephone numbers, appended to the present motion as Exhibit A.

  10. VeriSign WhoIs search results of 28-Aug-2002, showing registration for pallorium.com, and again indicating only one New York address, and one New York telephone number, for Pallorium, Inc., and Steven Rambam.  Appended to the present motion as Exhibit B.

  11. The Los Angeles Superior Court web site Case Summary of 31-Jul-2002 for Rambam vs Prytulak, Case 02E00326.  Appended to the present motion as Exhibit C.

  12. The Los Angeles Superior Court web site Case Summary of 28-Aug-2002 for Rambam vs Prytulak, Case BC271433.  Appended to the present motion as Exhibit D.

  13. Prytulak Motion to Quash Case BC271433, dated 27-May-2002 and delivered to the Court 29-May-2002, but unfiled because of defects.  Appended to the present motion as Exhibit E.

  14. Los Angeles Superior Court "minute order" dated 15-Aug-2002 and delivered 19-Aug-2002.  Appended to the present motion as Exhibit F.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date: September 25, 2002

Lubomyr PRYTULAK                

Respondent/Defendant


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