Trademark Trial and Appeal Board Electronic Filing System. httgj/estta.usQto.gov
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`91210354
`
`Plaintiff
`
`Withers Energy Group, L.P.
`Defendant
`
`United LNG Holdings, LLC
`
`Yes
`
`Motion for Suspension in View of Civil Proceeding With Consent
`
`The parties are engaged in a civil action which may have a bearing on this proceeding. Accordingly, Withers
`Energy Group, L.P. hereby requests suspension of this proceeding pending a final determination of the civil
`action. Trademark Rule 2.117.
`
`Withers Energy Group, L.P. has secured the express consent of all other parties to this proceeding for the
`suspension and resetting of dates requested herein.
`
`Withers Energy Group, L.P. has provided an e-mail address herewith for itself and for the opposing party so
`that any order on this motion may be issued electronically by the Board.
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been sewed upon all parties, at their address
`record by Facsimile or email (by agreement only) on this date.
`Respectfully submitted,
`/Stephanie L. Holcombel
`Stephanie L. Holcombe
`TMMai|@porterhedges.com
`cvethan@vethan|aw.com, jco|vin@vethan|aw.com
`11/04/2013
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA568916
`ESTTA Tracking number:
`11/04/2013
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91210354
`Plaintiff
`Withers Energy Group, L.P.
`Defendant
`United LNG Holdings, LLC
`Yes
`
`Proceeding.
`Applicant
`
`Other Party
`
`Have the parties
`held their
`discovery
`conference as
`required under
`Trademark Rules
`2.120(a)(1) and
`(a)(2)?
`
`Motion for Suspension in View of Civil Proceeding With Consent
`
`The parties are engaged in a civil action which may have a bearing on this proceeding. Accordingly, Withers
`Energy Group, L.P. hereby requests suspension of this proceeding pending a final determination of the civil
`action. Trademark Rule 2.117.
`Withers Energy Group, L.P. has secured the express consent of all other parties to this proceeding for the
`suspension and resetting of dates requested herein.
`Withers Energy Group, L.P. has provided an e-mail address herewith for itself and for the opposing party so
`that any order on this motion may be issued electronically by the Board.
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by Facsimile or email (by agreement only) on this date.
`Respectfully submitted,
`/Stephanie L. Holcombe/
`Stephanie L. Holcombe
`TMMail@porterhedges.com
`cvethan@vethanlaw.com, jcolvin@vethanlaw.com
`11/04/2013
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re U.S. Trademark Application Serial No. 85/655,404 for the mark UNITED LNG, filed
`on June 19, 2012, published on April 16, 2013 and owned by United LNG Holdings, LLC
`
`Opposition No. 91210354
`
`§§
`
`§ §
`
`§
`§
`
`§ §
`
`§
`
`Withers Energy Group, L.P.,
`
`Opposer,
`
`vs.
`
`United LNG Holdings, LLC,
`
`Applicant.
`
`JOINT MOTION TO SUSPEND PROCEEDINGS
`
`Opposer Withers Energy Group, L.P. (“Withers”) and Applicant United LNG Holdings,
`
`LLC (“Applicant”) jointly file this Joint Motion to Suspend the Proceedings (the “Motion”), and
`
`in support thereof would respectfully show the Board as follows:
`
`I.
`
`FACTUAL BACKGROUND
`
`On June 19, 2012, Applicant filed its U.S. Trademark Application Serial No. 85/655,404
`
`for the trademark “UNITED LNG” (the “‘404 Application”), as evidenced by publication of the
`
`mark in the Official Gazette on April 16, 2013. The ‘404 Application recites “Import-export
`
`agencies in the field of liquid natural gas” in International Class 035 and was filed under 15
`
`U.S.C. § 1051(a), but was subsequently amended to its present basis, 15 U.S.C. § 1501(b).
`
`On April 23, 2013, Withers filed a Notice of Opposition No. 91210354 (the
`
`“Opposition”) with the Trademark Trial and Appeal Board (the “Board”), thereby giving rise to
`
`2013-11-1 Mtn to Suspend TTAB Action (3)
`
`1
`
`

`
`the proceedings that are the subject of this Motion. Withers claims that it owns the Mark
`
`“UNITED LNG” and that it has superior rights because its use of the mark pre-date the filing of
`
`the ‘404 Application. Applicant denied Withers’ claims and asserted various affirmative
`
`defenses and counterclaims against Opposer.
`
`During pendency of the Opposition, Applicant and the principal of Withers Energy have
`
`been involved in an action in Texas state court (occasionally referred to as the “state court
`
`action”), which involves the ownership and control of Applicant and other related entities.
`
`(Exhibit A: State Court Petition). Currently, the parties to the state court action have proposed
`
`mediation, and if successful, that mediation will resolve this instant action before the Trademark
`
`Trial and Appeals Board. However, regardless of the successes of mediation, any resolution of
`
`the state court action will directly affect the outcome of this instant action.
`
`II.
`
`PROCEDURAL POSTURE
`
`Discovery in this proceeding has only just begun. To date, the parties have only
`
`propounded and responded to written discovery; depositions by either party have yet to be taken
`
`or even noticed.
`
`There are still over two months remaining in the discovery period.
`
`Additionally, there are currently no dispositive motions on file. Finally, testimony period does
`
`not open until February 27, 2014 and ends on July 12, 2014. Accordingly, there is ample time
`
`remaining in this case, such that its suspension at this early stage will not be inefficient or
`
`prejudicial to either party or to the Board.
`
`III.
`
`ARGUMENT
`
`Section 510 of the Trademark Trial and Appeal Board Manual of Procedure (“TBMP”)
`
`expressly permits the suspension of proceedings currently pending in front of the Board pending
`
`the outcome of a civil action or another proceeding in front of the Board.
`
`(TBMP §§ 510.01,
`
`2013-11-1 Mtn to Suspend TTAB Action (3)
`
`2
`
`

`
`510.02(a); 37 CFR § 2.117(a)) Because the Board has “inherent power” to schedule the
`
`disposition of cases on its docket, it likewise has the power to stay proceedings.
`
`(TBMP §
`
`510.01) Thus, when parties to a case that is pending before the Board are “involved in a separate
`
`civil action which may have a bearing on the Board case, proceedings before the Board may be
`
`suspended until final determination of the civil action.” (TBMP § 510.02(a))
`
`The Board faced this precise issue in a case involving nearly identical facts to those
`
`present here.
`
`(See Argo & Co. v. Carpetsheen Mfg., Inc., 187 USPQ 366 (TTAB 1975).)
`
`In
`
`Argo, the issue to be determined in the civil suit was whether or not the applicant was the owner
`
`of the mark at issue in the opposition that was simultaneously pending before the Board. (Id. at
`
`*2) As such, the applicant sought to suspend the opposition pending the outcome of the civil suit
`
`on the basis that the civil suit would have a “direct bearing” on the issues involved in the
`
`opposition proceeding.
`
`(Id. at *1) The Board therefore granted the applicant’s motion and
`
`suspended the opposition pending disposition of the civil suit. (Id. at *5)
`
`Here, as in Argo, the parties believe the issue to be determined in the civil suit will likely
`
`have a direct bearing on the issues involved in this Opposition. Accordingly, the parties agree
`
`that resolution of the state court case will assist the resolution of this Opposition. Accordingly,
`
`to conserve the Board’s and parties’ resources,
`
`the Parties respectfully request
`
`that
`
`this
`
`Opposition be stayed until the Texas state court action has concluded.
`
`IV.
`
`CONCLUSION AND PRAYER
`
`For these reasons, the Parties respectfully request that the Board grant this Joint Motion
`
`to Suspend Proceedings and stay the proceedings pending the outcome of the state court action.
`
`2013-11-1 Mtn to Suspend TTAB Action (3)
`
`3
`
`

`
`Dated: November 4, 2013
`
`Dated: November 4, 2013
`
`Respectfully submitted,
`
`By: /s/ Jonathan M. Pierce
`Jonathan M. Pierce, Esq.
`jpierce@porterhedges.com
`Stephanie L. Holcombe, Esq.
`sholcombe@porterhedges.com
`PORTER HEDGES LLP
`1000 Main Street, Suite 3600
`Houston, Texas 77002
`Telephone (713) 226-6694
`Facsimile (713) 226-6294
`
`ATTORNEYS FOR OPPOSER
`
`Respectfully submitted,
`
`By: /s/ Joseph F. Colvin, Jr.
`Charles M.R. Vethan
`Joseph F. Colvin, Jr.
`THE VETHAN LAW FIRM, P.C.
`3501 Allen Parkway
`Houston, Texas 77019
`Telephone (713) 526-2222
`Facsimile (713) 526-2230
`
`ATTORNEYS FOR APPLICANT
`
`2013-11-1 Mtn to Suspend TTAB Action (3)
`
`4
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 4th day of November, 2013, a copy of the foregoing Joint
`
`Motion to Suspend Proceedings was served upon Applicant’s counsel of record via e-mail as
`
`follows:
`
`Charles M.R. Vethan
`cvethan@vethanlaw.com
`Joseph F. Colvin, Jr.
`jcolvin@vethanlaw.com
`THE VETHAN LAW FIRM, P.C.
`3501 Allen Parkway
`Houston, Texas 77019
`Telephone (713) 526-2222
`Facsimile (713) 526-2230
`
`_/s/ Stephanie L. Holcombe____________
`Stephanie L. Holcombe
`
`2013-11-1 Mtn to Suspend TTAB Action (3)
`
`5
`
`

`
`Case 4:13-cv—O1538 Document 1 Filed in TXSD on 05124113 Page 1 of 13
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`CIVIL ACTION NO.
`
`§ § §
`
`§ §
`
`§ §
`
`§ §
`
`§
`
`JOHN SPEER
`
`Plaintiff,
`
`VS.
`
`ERIK SAENZ
`
`Defendant.
`
`PLAINTIFF ’S VERIFIED ORIGINAL COMPLAINT AND APPLICATION
`FOR PRELIMINARY AND PERMANENT INJUNCTIONS
`
`Plaintiff John Speer (“Plaintiff and/or “Spec:-”) files this Verified Original Complaint
`
`and Application for Temporary and Permanent
`
`Injunction against Defendant Erik Saenz
`
`(“Defendant” and/or “Saenz”) and in support thereof would respectfully show unto the Court as
`
`follows:
`
`1.
`
`2.
`
`INTRODUCTION AND PARTIES
`
`Plaintiff is J01111 Speer, an individual residing in Harris County, Texas.
`
`Defendant Erik Saenz is an individual who resides in Harris County, Texas, and
`
`may be served at 5120 Woodway, Suite 5004, Houston, Texas 77056, or wherever he may be
`
`found.
`
`JURISDICTION
`
`3.
`
`This Court has jurisdiction over this lawsuit because it arises under 18 U.S.C.
`
`§ 2701, et. seq. (“Electronic Stored Cornnzunicatiotzs Act”) and 18 U.S.C. 2510, et. seq.
`
`(“Federal Wiretap Act”).
`
`2008054120 I 3U277.’i 5492'n‘0.2
`
`

`
`Case 4:13—cv—01538 Document 1 Filed in TXSD on 05l24l13 Page 2 of 13
`
`4.
`
`This Court has supplemental jurisdiction over Plaintiff’s state law claims under 28
`
`U.S.C. § 1367(a) because those claims arise out of the same transactions andfor occurrences as
`
`alieged in Plaintiffs Complaint, so as to form a part of the same case or controversy.
`
`VENUE
`
`5.
`
`Venue is proper in this District pursuant to 28 U.S.C. § 139l(b)(l) and 28 U.S.C.
`
`§ 1391(b)(2) because Defendant Saenz resides in this district and a substantial part of the events
`
`or omissions giving rise to the claims asserted herein occurred in this District.
`
`FACTS
`
`6.
`
`Plaintiff John Speer met Defendant Erik Saenz in or before March 2010 when
`
`Saenz began pitching prospective energy projects to John Speer and/or Withers Energy, in which
`
`John Speer has controlling interest.
`
`7.
`
`Between November and December 2011, Saenz became a full-time independent
`
`contractor for Withers Energy.
`
`8.
`
`In early February 2012, Withers Energy assigned Saenz to work on a liquefied
`
`natural gas project for Withers Energy (“United LNGproject”).
`
`9.
`
`On February 20, 2012, Headwater Business Solutions (“Headwater”), another
`
`third-party contractor of Withers Energy, registered the domain name www.unitedlng.com on
`
`behalf of and at the direction of Withers Energy.
`
`I-Ieadwater prepaid for 5 years of internet
`
`domain name fees and Withers subsequently reimbursed those fees as it was and is the proper
`
`owner of the website www.unitedlng.corn.
`
`10.
`
`Headwater used the domain name to obtain from Google an associated business
`
`email account. Headwater aiso assigned multiple “@unitedlng.corn” email addresses associated
`
`with that account to Withers Energy empioyees and contractors, including John Speer.
`
`2005054710 i302'r"IIl 54-9270.2
`
`

`
`Case 4:13—cv-01538 Document 1 Filed in TXSD on 05/24/13 Page 3 of 13
`
`11.
`
`Each individual could send and receive messages through his or her email address
`
`by accessing Google’s remote, third-party servermeither by logging into the server using a web
`
`browser, or by downloading the emails from the server to a computer using email software, such
`
`as Microsoft Outlook.
`
`John Speer sent and received messages through his computer by using
`
`Microsoft Outlook.
`
`12.
`
`At this point, Jeremy Liardon of i-Ieadwater was the only authorized administrator
`
`of the www.unitedlng.com domain name and the Google business email account.
`
`13.
`
`In March 2012, because of Mr. Liardon’s demanding scheduie, he was unable to
`
`spend time developing the website for www.united1ng.com for Withers Energy. Withers Energy
`
`decided to make Saenz the temporary administrator of the website so that he could develop and
`
`make changes to the website.
`
`14. Withers Energy instructed I-Ieadwater
`
`to assign, on a temporary basis,
`
`the
`
`registration of the www.united1ng.com domain name to Saenz for that purpose. However,
`
`administrative rights to the Google business email account were to remain with Headwater.
`
`15.
`
`It was at all
`
`times Withers Energy's instruction that
`
`the account would be
`
`reassigned back to Headwater as the primary IT consultant. Withers Energy never sold or
`
`otherwise permanently transferred administrative rights to Saenz.
`
`16.
`
`On Januaiy 4, 2013, Withers Energy instructed Saenz to return registration of the
`
`domain name and website administration rights back to Headwater.
`
`17.
`
`Over the course of the following month, Saenz oflered a litany of excuses as to
`
`why he could not comply with Withers Energy’s instructions.
`
`18.
`
`At some point, Saenz, surreptitiously and without authority, gained administrative
`
`rights to the Google business email account from Google.
`
`200805-17.20l3027‘H1S492'I0.2
`
`

`
`Case 4:13-CV—O1538 Document 1 Filed in TXSD on 05/24/13 Page 4 Of 13
`
`19.
`
`On January 30, 2013, Saenz resigned from Withers Energy. Upon his resignation
`
`from Withers Energy, Saenz failed to return to Withers Energy the www.unitedlng.com domain
`
`name and its associated email accounts.
`
`Instead, Saenz has and continues to rnisappropriate the
`
`domain and associated email accounts for his own economic benefit.
`
`20.
`
`On the evening of February 5, 2013, counsel
`
`for John Speer emailed an
`
`application for injunctive relief to Saenz and others, notifiring them that John Speer would be
`
`seeking a temporary restraining order with respect to other issues currently pending in state
`
`court, which are not relevant to the instant matter.
`
`21.
`
`Immediately upon receipt of counsel’s email, Saenz intentionally accessed,
`
`without authorization, the Google business email account. Saenz made changes to prevent John
`
`Speer’s authorized access to his emails, which were stored on the Google server as back~up
`
`copies of the emails downloaded on John Speer’s and others’ computers through Microsoft
`
`Outiook, and blocked John Speer’s receipt of all future emails. Each unauthorized retrieval of
`
`each of Speer’s emails stored in the Goggle business email account was a new and separate
`
`violation for which Defendant can be held both civilly and criminally liable.
`
`22.
`
`Since February 5, 2013, countless emails intended for receipt by John Speer at
`
`jspeer@unitedlng.com have been intercepted by Saenz using the Google business account,
`
`Google’s third-party server, Saenz’s personal coInputer(s), andlor automatic email re-routing
`
`software. Each interception was a new and separate violation for which Defendant can be held
`
`both civilly and criminally liable.
`
`23.
`
`On March 1, 2013, at a public evidentiary hearing in the state court suit, Saenz
`
`offered into evidence a copy of an email containing John Speer’s confidential
`
`financial
`
`information that had been sent by John Speer to a third—party financial institution. Saenz had
`
`2flD8D547.20l3D2'n‘7IiS492':‘D.2
`
`

`
`Case 4:l3—cv—01538 Document 1 Filed in TXSD on 05/24/13 Page 5 of 13
`
`obtained the copy of the email, without authorization, from Google’s server where it was stored
`
`as a back-up copy of the one sent from John Speer’s computer through Microsoft Outlook.
`
`24.
`
`At the same healing, Saenz presented an email that had been sent to Speer on or
`
`about February 22, 2013, at
`
`least
`
`two weeks after Saenz unlawfully blocked Speer from
`
`receiving his emails, conclusively establishing that Defendant had unlawfully intercepted emails
`
`that were intended for, but never received by Speer.
`
`FIRST CAUSE OF ACTION UNDER THE
`FEDERAL ELECTRONIC STORED COMMUNICATIONS ACT
`
`(18 U.S.C. § 2701, et seq.)
`
`25.
`
`Speer hereby incorporates paragraphs 1 through 24 into this cause of action as if
`
`fully restated and set forth herein.
`
`26.
`
`Defendant’s conduct described herein constitutes numerous violations of the
`
`Electronic Stored Communications Act for which Defendant is liable to Speer for the greater of:
`
`actual damages and any profits made by Defendant as a result of the violations, or $1,000 per
`
`violation}
`
`Attorneys’ Fees
`
`27.
`
`As a result of Defendant’s violations of 18 U.S.C. §2701, er. seq., Plaintiff
`
`retained the undersigned attorneys and hereby sues Defendant for the recovery of all reasonable
`
`and necessary attorneys‘ fees incurred herein as authorized by 18 U.S.C. § 2707(b)(3).
`
`Exemplag Damages
`
`28.
`
`Because the violations were willful or intentional, Speer is entitled to and hereby
`
`sues Defendant for the recovery of exemplary damages as authorized by 18 U.S.C. § 2707(c).
`
`'
`
`Each violation is also criminaiiy punishable by fine or imprisonment for not more than 5 years, or both, for a
`first offense. See 18 U.S.C. § 2701(b)(1)(A).
`
`20lJB0547.20I302?7Il5-69270.2
`
`

`
`Case 4:13-cv-01538 Document 1 Filed in TXSD on 05/24/13 Page 6 of 13
`
`SECOND CAUSE OF ACTION UNDER
`THE FEDERAL WIRETAP ACT
`
`(18 U.S.C. § 2510, et seq.)
`
`29.
`
`Speer hereby incorporates paragraphs 1 through 28 into this cause of action as if
`
`fully restated and set forth herein.
`
`30.
`
`Defendant’s conduct described herein constitutes numerous violations of the
`
`Federal Wiretap Act for which Defendant is liable to Speer for the greater of:
`
`the sum of actual
`
`damages suffered by Speer and any profits made by Defendant as a result of his violations; or
`
`statutory damages of whichever is the greater of $100 a day for each day of violation, or
`
`$10,000?
`
`31.
`
`Since Defendant has been in continuous violation of the Federal Wiretap Act each
`
`day since February 5, 2013, as of the date of the filing of this coruplaint, Speer’s damages are no
`
`less than $10,800 per violation and continue to accrue.
`
`Attorneys’ Fees
`
`32.
`
`As a result of Defendanfs violations of 18 U.S.C. § 2510, et. seq., Plaintiff
`
`retained the undersigned attorneys and hereby sues Defendant for the recovery of all reasonable
`
`and necessary attorneys’ fees incurred herein as authorized by 18 U.S.C. § 2520(b)(3).
`
`Exemplag Damages
`
`33.
`
`Because the violations were willful and intentional, Speer is entitled to and hereby
`
`sues Defendant for the recovery of exemplary damages as authorized by 18 U.S.C. § 2520(b)(2).
`
`2
`
`Each violation is also criminaliy punishable by fine or imprisonment of not more than 5 years, or both. See 18
`U.S.C. § 2511(1), (4).
`
`2003054720 i302'i"Il1 5492702
`
`

`
`Case 4:l3—cv—01538 Document 1 Filed in TXSD on 05/24/13 Page 7 of 13
`
`THIRD CAUSE OF ACTION UNDER
`THE TEXAS CRIMINAL WIRETAP ACT
`
`(Tex. Code Crim. Proc. art. 18.20 § 16(a); Tex. Penal Code § 16.02)
`
`34.
`
`Speer hereby incorporates paragraphs 1 through 33 into this cause of action as if
`
`fully restated and set forth herein.
`
`35.
`
`Defendant’s conduct described herein constitutes numerous violations of the
`
`Texas Criminal Wiretap Act for which Defendant is liable to Speer for the greater of: the sum of
`
`actual damages suffered by Speer and any profits made by Defendant as a result of his violations;
`
`or statutory damages of whichever is the greater of $100 a day for each day of violation, or
`
`$1,000 per violation.3
`
`36.
`
`Since Defendant has been in continuous violation of the Texas Criminal Wiretap
`
`Act each day since February 5, 2013, as of the date of the filing of this complaint, Speer’s
`
`damages are no less than $10,800 per violation and continue to accrue.
`
`1%’ Fees
`
`37.
`
`As a result of Defendant’s violations of the Texas Criminal Wiretap Act, Plaintiff
`
`retained the undersigned attorneys and hereby sues Defendant for the recovery of all reasonable
`
`and necessary attorneys’
`
`fees incurred herein as authorized by Texas Code of Criminal
`
`Procedure article 18.20 section 16(a)(3).
`
`Exemplary Damages
`
`38.
`
`Because the violations were willful and intentional, Speer hereby sues Defendant
`
`for the recovery of exemplary damages as authorized by Texas Code of Criminal Procedure
`
`article 13.20 § l6(a)(2).
`
`3
`
`Each vioiation is also criminally punishable as a second degree felony by a fine not to exceed $10,000.00 or
`imprisonment for not more than 20 years or less than 2 years, or both. See TEX, PENAL CODE § 16.020); id.
`§ 12.33
`
`1ll080S4'.'.20 1 3027711 5492702
`
`

`
`Case 4:13—cv—O1538 Document 1 Filed in TXSD on 05/24/13 Page 8 of 13
`
`FOURTH CAUSE OF ACTION
`
`(Intrusion upon Seclusion)
`
`39.
`
`Speer hereby incorporates paragraphs 1 through 38 into this cause of action as if
`
`fully restated and set forth herein.
`
`40.
`
`Defendant is liable to Speer for his conduct described herein for the common law
`
`tort of intrusion on seclusion.
`
`41.
`
`Defendant
`
`intentionally intruded upon Speer’s solitude, seclusion or private
`
`affairs.
`
`42.
`
`Defendant’s intrusion would be highly offensive to a reasonable person.
`
`43.
`
`44.
`
`Speer suffered injuries as a result of Defendant’s intrusion.
`
`As a result Plaintiff has suffered actual damages, including for, but not necessarily
`
`limited to, mental anguish and loss of earning capacity.
`
`FIFTH CAUSE OF ACTION
`
`(Public Disclosure of Private Facts}
`
`45.
`
`Speer hereby incorporates paragraphs 1 through 44 into this cause of action as if
`
`fully restated and set forth herein.
`
`46.
`
`Defendant is liable to Speer for his conduct described herein under the common
`
`law tort of public disclosure of private facts.
`
`4?‘.
`
`48.
`
`Defendant publicized information about Speer’s private life.
`
`The publication of Speer’s private information would be highly offensive to a
`
`reasonable person.
`
`49.
`
`The matter pubiicized is not of legitimate public concern.
`
`50.
`
`Speer suffered injuries as a result of Defenciant’s disclosure.
`
`2008054120l3D277ll5-49270.2
`
`

`
`Case 4:l3—CV—O1538 Document 1 Filed in TXSD on 05/24/13 Page 9 Of 13
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`51.
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`As a result Plaintiff has suffered actual damages, including for, but not necessarily
`
`limited to, mental anguish and loss of earning capacity.
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`DECLARATORY JUDGMENT
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`52.
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`Spec: hereby incorporates paragraphs 1 through 51 into this cause of action as if
`
`fully restated and set forth herein.
`
`53.
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`Speer seeks a declaratory judgment under Federal Rule of Civil Procedure 57, 28
`
`U.S.C. §§ 2201 and 2202, E8 U.S.C. § 2707(b)(l) and 18 U.S.C. 2520(b)(1) that Defendant’s
`
`conduct as described above violated the Electronic Stored Communications Act and the Federal
`
`Wiretap Act.
`
`REQUEST FOR PRELIMINARY INJUNCTION
`UNDER 18 U.s.c. § 2707(b)(1) and 18 U.S.C. § 2S20(b)(1)
`
`54.
`
`Speer hereby incorporates paragraphs 1 through 53 into this request for injunctive
`
`relief as if fully restated and set forth herein.
`
`55.
`
`Spec: will likely suffer irreparable injury if Defendant is not enjoined, while this
`
`suit is pending, from further access to and distribution of Plaintiffs emails stored on the Google
`
`server. The injury is actual and imminent. The injury cannot be rectified or by a final judgment
`
`following a trial.
`
`56.
`
`57.
`
`There is no adequate remedy at law.
`
`There is a substantial likelihood that Speer will succeed on the merits of this case.
`
`58.
`
`The injury Speer faces outweighs the injury that would be the injury, if any, that
`
`would be sustained by Defendant as a result of the injunctive relief Speer seeks.
`
`59.
`
`The injunctive relief Speer seeks would not adversely affect public policy or the
`
`public interest.
`
`2008054130 13027711 5492701
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`

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`Case 4:13—cv—01538 Document 1 Filed in TXSD on 05/24/13 Page 10 of 13
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`60.
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`Speer asks the Court to set his application for a temporary injunction for hearing,
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`and after the hearing, issue a preliminary injunction against Defendant, enjoining Saenz from
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`further access to, interception andfor distribution of: John Speer’s emails stored in the United
`
`LNG Google business email account; and ali emails sent
`
`to and from John Speer at
`
`jspeer@united1ng.co.rn in the future. Speer further requests that Saenz be ordered to irnniediately
`
`return all administrative rights to the Google business email account to Speer.
`
`REQUEST FOR PERMANENT INJUNCTION
`
`61.
`
`Speer asks the Court to set his application for permanent injunction for a full trial
`
`on the issues in this application and, after the trial, to issue a permanent injunction against
`
`Defendant Erik Saenz, enjoining Saenz from further access to, interception and/or distribution of:
`
`John Speer’s emails stored in the United LNG Google business email account; and all emails
`
`sent to and from John Speer at jspeer@unitedlng.corn in the future. Speer filrther requests that
`
`Saenz be ordered to immediately return all administrative rights to the Googie business email
`
`account to Speer.
`
`JURY TRIAL
`
`62.
`
`Plaintiff asserts his right under the Seventh Amendment to the U.S. Constitution
`
`and demands, in accordance with Federal Rule of Civil Procedure 38, a trial by jury on all issues.
`
`10lJ805¢S7,2013027‘l'n’15-19270.2
`
`10
`
`

`
`Case 4:13—cv—01538 Document 1 Filed in TXSD on 05124113 Page 11 of 13
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`PRAYER FOR RELIEF
`
`WHEREFORE, PREMISES CONSIDERED, Plaintiff John Speer requests that the Court:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`j.
`
`k.
`
`Set this request for a preliminary injunction for hearing, and after hearing, enter a
`preliminary injunction, enjoining Defendant Erik Saenz from further access to,
`interception andlor distribution of: John Speer’s emails stored in the United LNG
`Google business email account; and alt emails sent to and from John Speer at
`jspeer@unitedlng.com in the future. Speer further requests that Saenz be ordered
`to return all administrative rights to the Google business email account to Speer;
`
`Upon final trial, render a declaratory judgment that Defendant Saenz violated 18
`U.S.C. § 2701, et. seq., and 18 U.S.C. 2510, et. seq., and is therefore liable to
`Plaintiff John Speer;
`
`Upon final trial, award Plaintiff damages pursuant to 18 U.S.C. § 2701, el seq. in
`an amount equal to the greater of actual damages and any profits made by Saenz
`as a result of the violations as determined by the trier of fact, or $1,000 per
`violation;
`
`in
`Upon final trial, award Plaintiff damages pursuant to 18 U.S.C. § 2510, et. seq.
`an amount equal of the greater of actual damages and any profits made by Saenz
`as a result of the violations as determined by the trier of fact, or $100 per day for
`each day of violation or $10,000;
`
`Upon final trial, award Plaintiff damages pursuant to Tex. Code Crim. Proc. art.
`18.20 § 16(a)(l) and Tex. Penal Code § 16.02 in an amount equal to the greater of
`actual damages caused by Saenz as a result of the violations as determined by the
`trier of fact, or $100 a day for each day of violation or $1,000 per violation;
`
`Award Plaintiff damages to be determined by the trier of fact for Defendant’s
`intrusion upon seclusion;
`
`Award Plaintiff damages to be determine by the trier of fact for Defendant’s
`public disclosure of private facts;
`
`Award Plaintiff exemplary damages pursuant to 18 U.S.C. 2707(0), 18 U.S.C.
`25(b)(2) to be determined by the trier of fact;
`
`Award Plaintiff exemplary damages pursuant to Tex. Code of Crim. Proc, art.
`18.20 § 16(a)(1) to be determined by the trier of fact;
`
`Award Plaintiff reasonable and necessary attorneys fees pursuant
`270'/‘(b)(3) and 18 U.S.C. 2520(b)(3);
`
`to U.S.C.
`
`Award Plaintiff pre-judgment interest and post—judgment interest at the highest
`rates permitted by law;
`
`20080541201302':".T.I'l5492’i'0.2
`
`11
`
`

`
`Case 4:13-cv-01538 Document it Filed in TXSD on 05/24/13 Page 12 of 13
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`1.
`
`III.
`
`Award Plaintiff costs of suit; and
`
`Upon final trial, enter a permanent injunction, enjoining Defendant Erik Saenz
`from further access to, interception and/or distribution of: John Speer’s emails
`stored in the United LNG Google business email account; and all emails sent to
`and from John Speer at jspeer@unitedlng.com in the future.
`Speer further
`requests that Saenz be ordered to return all administrative rights to the Google
`business email account to Speer.
`
`11.
`
`Award Plaintiff all other relief the Court whether at law or in equity to which
`John Speer shows himself to be justly entitled.
`
`Respectfully submitted this 24”‘ day of May, 2013.
`
`Respectfully submitted,
`
`By:
`
`
`/57 Evan A. Moeller
`Evan A. Moeller
`
`State Bar No. 24051067
`SDTX Bar No. 664837
`
`Whitney N. Rawlinson
`State Bar No. 24068655
`SDTX Bar No. 1724668
`
`I-IIRSCH & WESTHEIMER, RC.
`Bank of America Center
`
`700 Louisiana, Suite 2550
`Houston, TX 77002-2772
`Telephone: 713.220.9163
`Facsimile: 713.223.93I9
`
`B-mail: emoeller@hirschwest.com
`
`ATTORNEYS FOR PLAINTIFF
`JOHN SPEER
`
`200805412013D277I1549270.2
`
`

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`Case 4:13—cv-01538 Document 1 Filed in TXSD on 05124113 Page 13 of 13
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`CIVIL ACTION NO.
`
`§ § §
`
`§ §
`
`§ §
`
`§ §
`
`§
`
`JOHN SPEER
`
`Plaintiff,
`
`VS.
`
`ERIK SAENZ
`
`Defendant.
`
`VERIFICATION
`
`Before me, the undersigned notary, on this day personally appeared John Speer, the
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`affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant
`
`testified:
`
`“My name is John Speer.
`
`1 have read the Verified Original Complaint and Application
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`for Preliminary and Permanent Injunctions. The facts stated in it are within my personal
`
`knowledge and are true and correct.”
`
`
`
`SWORN TO and SUBSCRIBED before me by john spear on 79* - 64%‘
`
`, 2013.
`
`Notary Publicéii and for the State of Texas
`
`
`
`2003054"? 20l30277r'l5Ii9270.2
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`

`
`Case 4:13—cv-01538 Document 1-1 Filed in TXSD on 0524113 Page 1 of 1
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`154* mm W)
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`CIVIL COVER SHEET
`
`111: ._FS 44 civii cover sheet and the infonnation contained hcrr.in_nt_:ithcr I’%pIat!c nor supglcrncnt tht: filjn and service ofplcadings or other papers as required by law, except as
`provided by lpi;al_ rules ofcourt. This form, upprovcd by the Judicial Con crcnce of the
`nilutl States in eptcmher I974, 18 required for the use of the. Clerk of Court for the
`purpose of imlmllng the civil docket sheet.
`{SEE IMYTRUCTIONS ON N£Ut’7‘P/IGE OF 'rHI.s'1=o.riM.}
`
`I. (a) PLAINTIFFS
`John Speer
`
`DEFENDANTS
`Erik Saenz
`
`tgarris County TX
`(b) County of Residence of First Listed Plaintiff Jx County of Residence of First Listed Defendant
`(EXCI:‘PT!N U.S. I’L.«l!N‘I'IFF (.'AS!§.‘n)
`rm us. PLAINTIFF (Lvi.l‘1'r'SONl.Y)
`IN LAND CONDEMNATION CASES, USE THE LOCATION OF
`'1‘)-IETRACTOF LANE) INVOLVED.
`
`NOTE:
`
`(c) Attorneys (Firm Name, Addrerr. and Teicpharre Numba.-.>)
`Evan A. Mueller and Whitney N. Rawllnson, Hirsch & Westheimer. PC.
`700 Louisiana, Suite 2550, Houston, TX 77002
`
`Auomcys rflknown)
`
`II. BASIS OF JURISDICTION (P!ar:car.- "X“ in One 80:: Only)
`
`rr I us. Govcmmcnt
`Plaintiff
`
`It 3
`
`Federal Question
`(U..S‘. Grwernrr:erirNaraParfy)
`
`Citizen of'l‘his State
`
`III. CITIZENSHIP OF PRINCIFAL PARTIES {Place an "X" in One Boxfi:rPIar'myf
`(For Divarsiol Cares Only)
`and One Roxfiur Dr-fi.-mlnntj
`r-tn-‘
`PT]-'
`our
`CI
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`DEF
`D 1
`
`Incorporated nr Principal Place
`of Business In This Slntc.
`
`45
`
`CI 2 U3. Government
`Dcfcudnt
`
`El 4 Diversity
`(frrdicmc Citizenship q[Par1t'e.r in Iran: H!)
`
`Citizen oI'Anoti1t:rSiotc
`
`Cl 2
`
`D 2
`
`lrtcurportttcd mm‘ Principl Place
`of Business In Another State
`
`Citizen or Subject ofa
`I-‘rsrci n Cotmt
`
`III 3
`
`El
`
`3
`
`Foreign Nation
`
`El
`
`['1
`
`5
`
`6
`
`CI 5
`
`E3 6
`
`
`
`
`
`
`
`
`
`
`
`IV NAT
`
`
`
`
`
`
`
`Ii
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`OF SUIT fl'i'ar:r:mr "X" m Om: Brut Gin
`
`-:-=:
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`.
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`..:
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`
`
`
`PERSONAL INJURY
`CI 625 Drug Rclatcd Scizure
`PERSONAL INJURY
`CI 422 Appeal 28 USC 158
`El 3?5 False Claims Act
`CI IIO Insurance
`ofl"rnpcrty2l USC 881
`Cl 365 Pursunal Injtuy -
`[fl 1'20 Mm-inc
`D 310 Airplane
`L‘! 423 Withdrawal
`£1 40!) State Reapportionment
`
`
`
`C1 315 Airplane Product
`Product Liability
`23 USC I57
`D 130 Miller Act
`CI 410 Antitrust
`Liability
`El 367 I-lcalih Cars.’
`D 140 Negotiable Instrument
`CI 430 Bank: and Banking
`
`D 150 Rrcovcry ot'Clver-pnynrcnt D 320 Assault, Libel Sr.
`Pitarntacculicitl
`.
`E] 450 Commerce
`
`8: Enforcentcnl oflutigmcnt
`Slanticr
`Personal Injury
`0 820 Copyrights
`Cl 4&0 Deportation
`D 330