This is a case of aggravated sexual assault of a minor. The case arises as a petition for writ of habeas corpus from a conviction in Texas. The facts describe a “ninja game” that involve suffocation.

RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

No. 4:12-CV-057-A


June 26, 2012, Decided
June 26, 2012, Filed

Opinion by US District Judge John Mcbryde:

In affirming the trial court’s judgment, the Second Court of Appeals of Texas set out the factual and procedural background of the case as follows:

A grand jury indicted Appellant for aggravated sexual assault of a minor. Appellant pleaded “not guilty,” and the case was tried to a jury.

M.L. was born in 1995, and he was eleven years old at the time of trial. His mother, Christine, testified that she met Appellant at work in 1998 and that they developed a romantic relationship while living together as roommates. Christine and Appellant had two children together, Z.H. in 1999 and K.H. in 2002. Christine testified that her relationship with Appellant was imperfect and that he eventually became physically abusive.

Christine testified that she moved to Boston with the children to get away from Appellant, but Appellant followed them to Boston two months later. She said that while they were living in Boston, M.L.’s teacher made a physical-abuse referral to Child Protective Services (“CPS”). Christine testified that CPS investigated and concluded that Appellant had physically abused M.L. Christine said that after living in Boston for about a year, she, Appellant, and the children moved to Arkansas, where Appellant’s family lived. She later left Appellant and returned to Texas with the children.

Christine testified that when M.L. was almost ten, she and M.L. were watching a television news program about a man who said he had been molested. She said that M.L. then told her that Appellant had blindfolded him, taken him to the bathroom, told him he was going to give him some candy, instructed him to open his mouth, and put Appellant’s penis into M.L.’s mouth. She testified that M.L. said that he did not tell her sooner because he was scared Appellant would kill him if he told anyone. Christine reported M.L.’s outcry to Irving police, whose investigation ultimately led to this case.

M.L. testified that when he was three years old and lived in Texas (he could not remember what city) with Christine and Appellant, Appellant would sometimes watch him when Christine was at work. He testified that Appellant would play “the ninja game,” in which Appellant would put a plastic grocery bag over M.L.’s head and prevent M.L. from breathing. He said that if he got dizzy and fell down, Appellant would tie the bag shut at M.L.’s neck. M.L. said they played the ninja game “a lot.”

M.L. also testified that Appellant would sometimes choke him with one or both hands. He testified that Appellant told M.L. he would kill him if he told Christine about the ninja game.

The convicted person now argues that some of this evidence was unfairly prejudicial:

Appellant argues that the trial court abused its discretion by admitting evidence concerning the extraneous offenses against M.L., specifically, the “ninja game,” the choking and belt-hanging incidents, and the injury to M.L.’s head.


M.L.’s horrific testimony about the “ninja game” and being hung by the neck with a belt had the tendency to confuse or distract the jury from the main issue, whether Appellant sexually assaulted M.L., and there was a danger that the jury would give the physical abuse testimony undue weight.

This argument was made in the State courts and denied, now again, habeas petition denied:

A federal habeas court will disturb state court evidentiary rulings on habeas review only if they render the trial fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991); Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993); Scott v. Maggio, 695 F.2d 916, 922 (5th Cir. 1983). Under Texas Code of Criminal Procedure article 38.37, § 2, evidence of extraneous evidence is more often admissible in cases involving sexual assaults of children, notwithstanding Texas’s normal rules of evidence. Kessler v. Dretke, 137 Fed. Appx. 710, 2005 WL 1515483, at *1 (5th Cir. 2005), cert. denied, 546 U.S. 1105, 126 S. Ct. 1050, 163 L. Ed. 2d 880 (2006). The admission of such evidence does not violate due process if the state “makes a strong showing that the defendant committed the offense and if the extraneous offense is rationally connected with the offense charged.” Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007). The evidence of petitioner’s physical abuse of M.L. was properly admitted because it bears a rational relationship to the charged offense. Moreover, there is no evidence that admission of the extraneous offense evidence rendered the entire trial fundamentally unfair or that but for the admission of the evidence the result of petitioner’s trial would have been different. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).

Therefore this petition is denied.


As mentioned previously, “ninja rocks“, are a tool of automobile burglars that is used to break car windows. Wikipedia explains that “they can quickly and almost silently fracture the glass windows on most cars”. In the following 2012 case opinion on a petition for writ of habeas corpus from an incarcerated person in California, the defendant possessed “ninja rocks”. The writ was denied.

CHESTER BROWN, Petitioner,
KATHY PROSPER, Warden, Respondent.

No. C 09-04870 SBA (PR)


June 20, 2012, Decided
July 24, 2012, Filed

Opinion by US District Judge Saundra Brown Armstrong:

An Alameda County jury convicted Petitioner of two counts of first degree burglary and three counts of receiving stolen property

The statement of facts quoted from the California Court of Appeal:

Pleasanton Police Officer Mike Murazzo responded to the Bishops’ call, and stopped defendant’s Buick at 7:05 a.m. on Longview Drive near the intersection with Foothill Drive. Murazzo positively identified defendant in court. When he was stopped, defendant was wearing a long black leather jacket with a pair of scissors protruding from a pocket. Defendant’s pockets also contained vice-grip pliers and two screwdrivers. On the front seat of defendant’s car were “ninja rocks,” broken pieces of spark plug porcelain used by auto burglars to break car windows with a minimum amount of noise.

This is a petition for writ of habeas corpus for a convicted attempted murder in California. Petitioner was sentenced “to state prison for life with the possibility of parole, plus 25 years to life plus a consecutive five years”. Petition for habeas is denied. This crime was a gang-related shooting. One gang member, “Hankie”, is described wearing a hooded sweatshirt and bandana: “ninja style”.

ninja style hoodie bandana

WILLIAM T. TUCKER, Petitioner,
MATTHEW CATE, Secretary, Respondents.

Civil No. 10-CV-2272-BGS


Decided June 12, 2012 by U.S. Magistrate Judge Bernard G. Skomal:

Quotes the facts from the California Court of Appeal, Fourth District, Division One:

At around 7:46 p.m. on October 3, 2005, the shooting victim in this case, Jerry Wright Jr. (Wright), was sitting on the stairs near his apartment in the Bay Vista Apartment complex on Logan Avenue in San Diego. The Lincoln Park street gang claimed Lincoln Park—the area where the Bay Vista Apartments are located in southeastern San Diego [footnote omitted] as their territory, and many members of that gang lived in that apartment complex. Although the Lincoln Park and O’Farrell gang were both affiliated with the Bloods, they had been rivals for over a decade. Although Wright did not claim membership in any street gang, his brother had been a member of the O’Farrell Park gang. [footnote omitted] Tucker is a documented member of the Lincoln Park gang, and his gang moniker was “Finny Boy.”


“Hankie”—identified at trial as Scott by Scott’s girlfriend—who was falling and stumbling, and making noise because he hit a gate. Scott was wearing a black hooded sweatshirt and a green bandanna over the lower portion of his fact, “Ninja style” with just the eyes showing. Scott, whom Wright had also seen on prior occasions, was one of the males Wright had seen in the group earlier that evening. Scott was stooped over behind Tucker and making “trembling” noises. He had shot himself in the upper buttocks and down through his front left leg in the groin area.

This is an amazing case about fair use in copyright that involves the continually groundbreaking television cartoon “South Park”. The specific “South Park” episode in question “Canada On Strike” (Original Air Date: 04.02.2008) is available for full viewing at South Park Studios. The plot of the episode is satire of the 2007-2008 WGA strike and parody of some notable viral internet YouTube superstars.

Available on YouTube are the other videos referenced by the court: Plaintiff’s “WWITB“, “the Numa Numa Guy“, “the Sneezing Panda” and “the Afro Ninja.”

BROWNMARK FILMS, LLC, Plaintiff-Appellant,
COMEDY PARTNERS, et al., Defendants-Appellees.

No. 11-2620


682 F.3d 687

January 17, 2012, Argued
June 7, 2012, Decided


For BROWNMARK FILMS, LLC, Plaintiff – Appellant: Garet K. Galster, Attorney, RYAN KROMHOLZ & MANION, Milwaukee, WI; Caz McChrystal, Attorney, UNIVERSITY OF WISCONSIN, School of Business & Economics, Stevens Point, WI.



Before: Chief Judge Easterbrook, and Circuit Judges Cudahy and Hamilton

Opinion by: Judge Cudahy:

This is a case about how a court may dispose of a copyright infringement action based on the fair use affirmative defense while avoiding the burdens of discovery and trial. This case also poses the interesting question of whether the incorporation-by-reference doctrine applies to audio-visual works.

South Park is a popular animated television show intended for mature audiences. The show centers on the adventures of foul-mouthed fourth graders in the small town of South Park, Colorado. It is notorious for its distinct animation style and scatological humor. The show frequently provides commentary on current events and pop-culture through parody and satire. Previous episodes have dealt with the Florida Recount, the aftermath of hurricane Katrina and the phenomenon of celebrity sex tapes.

This case involves one episode entitled “Canada On Strike,” which satirized the 2007-2008 Writers’ Guild of America strike, inexplicably popular viral videos and the difficulty of monetizing Internet fame. In the episode, the nation of Canada goes on strike, demanding a share of the “Internet money” they believe is being generated by viral videos and other online content. The South Park Elementary school boys—Cartman, Stan, Kyle and Butters—decide to create a viral video in order to accrue enough “Internet money” to buy off the striking Canadians. The boys create a video, “What What (In The Butt),” (WWITB) in which Butters sings a paean to anal sex. Within the show, the video is a huge hit, but the boys are only able to earn “theoretical dollars.”

This video is a parody of a real world viral video of the same name, featuring an adult male singing and dancing in tight pants. The two versions of WWITB are very similar. The South Park version recreates a large portion of the original version, using the same angles, framing, dance moves and visual elements. However, the South Park version stars Butters, a naïve nine-year old, in a variety of costumes drawing attention to his innocence: at various points he is dressed as a teddy bear, an astronaut and a daisy.

Brownmark Films, LLC (Brownmark), the copyright holder for the original WWITB video, filed suit against South Park Digital Studios (SPDS) and others for copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. Brownmark’s complaint referenced both versions of WWITB, but it did not attach either work to the complaint. SPDS responded claiming the South Park version was clearly fair use under § 107, attached the two works and moved for dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Brownmark did not address the substance of SPDS’s fair use defense, but instead argued that the court could not consider fair use on a 12(b)(6) motion to dismiss. The district court concluded that “[o]ne only needs to take a fleeting glance at the South Park episode” to determine that its use of the WWITB video is meant “to lampoon the recent craze in our society of watching video clips on the internet . . . of rather low artistic sophistication and quality”—in other words, fair use. The court granted SPDS’s motion to dismiss based on the fair use affirmative defense.

Brownmark appeals, arguing that an unpleaded affirmative defense of fair use is an improper basis for granting a motion to dismiss under Rule 12(b)(6), and that in any event, SPDS’s WWITB video is not a fair use of the original WWITB video. We hold that the district court could properly decide fair use on SPDS’s motion, and we affirm the district court’s finding of fair use.


we agree with the district court that this is an obvious case of fair use. When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a trial. When the two works in this case are viewed side-by-side, the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos.


Central to determining the purpose and character of a work is whether the new work merely supersedes the original work, or instead adds something new with a further purpose or of a different character. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994). The underlying purpose and character SPDS’s work was to comment on and critique the social phenomenon that is the “viral video.” Brownmark’s video exemplifies the “viral video.” Through one of the South Park characters—the innocent and naïve Butters—SPDS imitates viral video creation while lampooning one particularly well-known example of such a video. Moreover, the episode places Butters’ WWITB video alongside other YouTube hits including, among others, the Numa Numa Guy, the Sneezing Panda and the Afro Ninja. This kind of parodic use has obvious transformative value, which under § 107 is fair use. See § 107 (preamble); Campbell, 510 U.S. at 579 (“[P]arody, like other comment or criticism, may claim fair use under § 107.”).


SPDS’s use of the original WWITB was not insubstantial. Certainly, SPDS used the “heart” of the work; the work’s overall design and distinctive visual elements. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 565, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985). But in the context of parody, “[c]opying does not become excessive in relation to parodic purpose merely because the portion taken was the original’s heart.” Campbell, 510 U.S. at 588. Parody therefore “presents a difficult case.” Id. Indeed, it may even seem as an anomaly under fair use that parody, a favored use, must use a substantial amount of qualitative and quantitative elements to create the intended allusion; there are few alternatives. But when parody achieves its intended aim, the amount taken becomes reasonable when the parody does not serve as a market substitute for the work. See id. (“[H]ow much more is reasonable will depend . . . on the extent to which the [work’s] overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original.”). The South Park WWITB is clearly a parody and has not supplanted the original WWITB.

It follows from the third factor that SPDS’s parody cannot have an actionable effect on the potential market for or value of the original WWITB video under the fourth factor. As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicating that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video.

We agree with the district court’s well-reasoned and delightful opinion. For these reasons, the judgment of the district court is Affirmed.

That district court opinion by Judge Stadtmueller begins:

Federal lawsuits seldom touch on such riveting subjects and regard so many colorful parties as the present matter. The plaintiff, Brownmark Films, LLC (“Brown mark”), is the purported co-owner of a copyright in a music video entitled “What What (In the Butt)” (“WWITB”), a nearly four minute ditty regarding the derrière of the singer of the underlying work. (Am. Compl. ¶¶ 11-13). The music video begins with an array of bizarre imagery—from a burning cross to a floating pink zeppelin— and only gets stranger from there. The heart of the video features an adult African American male ensconced in a bright red, half-buttoned, silk shirt, dancing, grinning creepily at the camera, and repeatedly singing the same cryptic phrases: “I said, what what, in the butt” and “you want to do it in my butt, in my butt.” Meanwhile, the defendants are the entities involved in the production of “South Park,” an animated sitcom that centers on the happenings of four foul-mouthed fourth 994*994 graders in a small mountain town in Colorado. Id. ¶¶ 6-10. In the nearly fifteen years South Park has aired on Comedy Central, the four central characters have, amongst other adventures, battled space aliens,[1] hunted Osama Bin Ladin in the wake of 9/11 ala Elmer Fudd and Bugs Bunny,[2] and have, more recently, resolved the nation’s economic woes by charging the nation’s consumer debts on one of the character’s credit card.[3]

Brownmark and the makers of South Park find themselves litigating against each other in federal court as a result of an April 2, 2008 episode of the television program. (Am. Compl. ¶ 14). Specifically, Brownmark’s amended complaint seeks damages and injunctive relief for copyright infringement under the Copyright Act, 17 U.S.C. § 101 et seq., against the defendants because of a South Park episode entitled “Canada on Strike.” (Docket # 6). In that episode, one of the characters—the naive “Butters Stotch”—is coaxed by his fellow classmates to record an internet video in the hopes of “making money on the Internet.” The video— which lasts for fifty eight seconds of the approximately twenty-five minute episode—replicates parts of the WWITB video, with the nine-year old Butters singing the central lines of the original video, while dressed as a teddy bear, an astronaut, and even as a daisy. In the episode, Butters’ video, much like the original WWITB video, goes “viral,” with millions watching the clip. However, after their attempts to collect “internet money” prove fruitless, the South Park fourth graders learn that their video, much like other inane viral YouTube clips, have very little value to those who create the work.

This decision is on defendant’s motion to dismiss for summary judgment under Rule 12(b)(6). The motion is denied. The facts refer to a ninja-like mask worn by an FBI drug task force executing a search warrant.


Civil Action No. 11-790


Decided May 22, 2012 by U.S. District Judge Nora Barry Fischer.

The Statement of Facts (citations to the record removed):

A drug task force supervised by Defendant Springmeyer forcibly entered Plaintiffs’ home to execute an arrest warrant for Sondra Hunter, a suspect who was entirely unrelated to Plaintiffs. Plaintiffs claim that Defendants knew or had reason to know that Hunter did not reside at the home, as she had moved out of the house several months before the Plaintiffs leased the same residence on June 5, 2010. Living in the home at the time of the incident were Gary A. Adams, his wife Denise Adams, and their minor daughter, Bryna Adams. Tailon Adams, Shaquel Adams Riley, and Ms. Riley’s minor children, Savon Riley, Shane Adams, Surron Adams, Stefon Adams, Terrel Jackson, and Serenity West, also resided in the home at that time. When the incident occurred, Plaintiffs ranged in ages from three to fifty-eight. [Footnote#6: According to the caption of the Amended Complaint, seven of the thirteen plaintiffs are minors.] The Amended Complaint also states that Plaintiffs are “law abiding citizens of the United States, who have no record of criminal activity.”

At approximately 5:30 a.m. on March 3, 2011, Plaintiff Gary Adams was awakened by screams from the first floor of his home. When he descended the stairs from the second floor to the first floor, he observed a battering ram “violently” knock down the front door, and Defendants “stormed into the house pointing assault rifles at [him] and plaintiff Denise Adams and Shane Adams[,] who were on the first floor” at the time. Defendants then aimed red laser targeting beams at Plaintiff Gary Adams’s head, which “plac[ed] [him] in immediate fear that he was about to be shot in the head.” Plaintiffs did not know that Defendants were law enforcement officers and instead believed that Defendants were “criminals breaking into their home in a ‘home invasion.'”

Plaintiffs claim that approximately eleven individuals, presumably John Does 1-11, entered the home through both the front and back doors. Defendants were “dressed in tactical ninja[-]like uniforms” [Footnote#8: At argument, Counsel for Plaintiffs further described these uniforms as having hoods that obscured the identities of the individuals participating in the raid.] and shouted profanities at Plaintiffs, including “get the fuck down on the ground” and “shut the fuck up.” While Defendants pointed assault rifles at Plaintiffs, Defendants gathered Plaintiffs on the first floor of the house but refused to answer any questions regarding why they had broken into their home. Defendants then escorted Plaintiffs outside to the sidewalk even though Plaintiffs were dressed only in their bedtime clothing or underwear. [Foonote#9: Only Plaintiff Shaquel Adams Riley, who was in her “her twenties . . . [or] [m]aybe early thirties” at the time of the home invasion, was forced to stand outside in her underwear.] It was “freezing cold” outside at the time of this incident. In the course of the home invasion, Defendants also searched all of the rooms in Plaintiffs’ home.

“At some point [during the raid],” Defendant Springmeyer identified herself as the supervising agent and explained that Defendants had entered Plaintiffs’ home to execute an arrest warrant on Hunter. Plaintiffs state that “[a]t all times relevant hereto, [D]efendant Springmeyer participated in[,] directed, approved, and/or with knowledge of its unconstitutionality acquiesced in the conduct and actions, of other law enforcement officials, including ones acting as federal agents and/or ones acting under color of state law.”

Plaintiff Gary Adams told Springmeyer that they were not associated with Hunter and that she lived in their home before they rented it. Furthermore, Plaintiffs claim that “[D]efendants knew or had reason to believe that [Plaintiffs] were the actual residents at the address appearing on any arrest warrant and likewise knew or had reason to believe that [P]laintiffs had no association whatsoever with the alleged suspect [Hunter].” Plaintiffs state that they “openly occupied and resided” in their home, which “was easily verifiable by anyone interested in determining who resided in such property.”

As a consequence of this incident, Plaintiffs plan to vacate their home, as “their continued presence therein serves as a constant reminder of the events” that occurred. [Footnote#10: As of the time of the hearing on Defendant Springmeyer’s Motion to Dismiss, which occurred on March 26, 2012, Plaintiffs had not yet vacated their home. Counsel for Plaintiffs stated that one Plaintiff “may have left and relocated for a period of time” and may or may not have returned to the residence.

In deciding that adequate facts had been alleged to state a claim the opinion again refers to:

“tactical ninja-like uniforms” that obscured their identities. Plaintiffs only learned of Springmeyer’s identity because she introduced herself and stated that she supervised the raid. Given the nature and circumstances of this incident, it would be difficult for Plaintiffs to plead the facts in their Amended Complaint with any more specificity. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (stating, “The Third Circuit has held that a civil rights complaint is adequate where it states the conduct, time, place, and persons responsible”) (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980)).


it is evident from Plaintiffs’ Amended Complaint that Defendant Springmeyer, along with the eleven John Doe Defendants, was responsible for the excessive force that was allegedly used against Plaintiffs. Again, based on the nature and circumstances of the home invasion and the “tactical ninja[-]like uniforms” worn by Defendants during the raid that obscured their identities, it would be unreasonable to require Plaintiffs to plead these facts with further specificity at this time.

Affiliate web sales subjects defendant to personal jurisdiction and venue in retailers’ state.

MuscleDriver USA, LLC, Plaintiff,
Robert Chandler Smith and Web Ninjas, LLC, Defendants.

C/A No. 0:11-1777-MBS-PJG


2012 U.S. Dist. LEXIS 69446

May 17, 2012, Decided

Opinion by Chief United States District Judge Margaret B. Seymour:

On July 22, 2011, Plaintiff MuscleDriver USA, LLC, filed an action against Defendants Robert Chandler Smith (“Smith”) and Web Ninjas, LLC (“Web Ninjas”). On September 19, 2011, default was entered against Web Ninjas. Because Smith is represented pro se, this action was referred to United States Magistrate Judge Paige J. Gossett for pretrial handling pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C.

On October 11, 2011, Smith filed a motion to dismiss for lack of personal jurisdiction and for improper venue, or, in the alternative, to transfer the action to the Western District of Texas. On April 17, 2012, the Magistrate Judge issued a Report and Recommendation recommending that Smith’s motion be denied. … The court adopts the Report and Recommendation and incorporates it herein by reference.

According to that April 17 report by Magistrate Judge Paige J. Gossett, this case is about:

The Plaintiff, MuscleDriver USA, LLC (“MuscleDriver”) filed this action against Defendant Robert Chandler Smith (“Smith”), who is self-represented, and Defendant Web Ninjas, LLC (“Web Ninjas”), alleging false designation of origin and unfair competition in violation of the Lanham Act, § 43(a), 15 U.S.C. § 1125(a), as well as state law claims for unfair trade practices under S.C. Code Ann. §§ 39-5-10, et seq., common law unfair competition, and injunction.


This case arises out of an internet business relationship gone bad. At some point prior to 2009, Smith, who attests that he has never been to South Carolina, created and began operating a website at the domain (Smith Decl. ¶¶ 3, 20, ECF No. 14-2 at 1, 2.) Smith states that on the website, “I drafted and posted reviews of various weightlifting shoes. The site also contained ‘affiliate’ links to the sellers of the reviewed shoes through the sellers’ affiliate programs.” (Id. at ¶ 21, ECF No. 14-2 at 2.) Under affiliate programs, a party seeking to become an affiliate generally signs up with a retailer online, is given a tracking code, and collects a commission from the retailer on “click-through” sales that flow from the affiliate site. (Id. at ¶ 22, ECF No. 14-2 at 2.) In November 2009, Smith contacted MuscleDriver by e-mail, and the parties exchanged information about the MuscleDriver affiliate program. (ECF No. 18-1 at 8, 9.) Thereafter, Smith states that “I entered into an affiliate agreement with plaintiff . . . by signing up online then by agreeing to [MuscleDriver]’s Affiliate Terms and Conditions by clicking a check-box at the bottom of the page.” (Smith Decl. ¶ 23, ECF No. 14-2 at 3.) Although MuscleDriver’s location and address is identified on its website that Smith visited to establish the affiliate agreement, Smith states that he “only learned that [MuscleDriver] was in South Carolina after receiving his first commission check,” which was mailed from the MuscleDriver headquarters. (Id. at ¶ 25, ECF No. 14-2 at 3.) He had periodic communications with MuscleDriver and received monthly commission checks. (Id. at ¶ 11, ECF No. 14-2 at 2.) In 2010, Smith initiated a second, separate wholesale agreement with MuscleDriver in which he received commissions for advertising and selling MuscleDriver products from a different website, In March 2011, a dispute arose between the parties over a product review posted on, and MuscleDriver terminated its relationship with Smith. (Id. at ¶¶ 28-30, ECF No. 14-2 at 3.) In response to the termination and communications about the dispute, Smith removed some content from, but continued to post other content related to MuscleDriver and its products on the site, as well as the disputed review. (Id. at ¶ 32, ECF No. 14-2 at 4.) He also then formed Web Ninjas, LLC on March 16, 2011. (Id. at ¶ 33, ECF No. 14-2 at 4.) Five months later, on August 15, 2011, Smith took offline. (Id. at ¶ 34, ECF No. 14-2 at 4.) During the eighteen-month relationship between the parties, Smith’s websites generated more than $100,000 in sales of MuscleDriver’s products, all for products that shipped from MuscleDriver’s facility in South Carolina. Some of the sales through Smith’s websites were to customers in South Carolina. (Hess Decl. ¶¶ 5, 7-8, ECF No. 18-1 at 4; Invoices, ECF No. 18-1 at 15-26.) MuscleDriver majority owner and president Brad Hess further attests that all of its witnesses and documents related to this case are in South Carolina. (Hess Decl. ¶¶ 14-16, ECF No. 18-1 at 5-6.)

The bank repossessed collateral including a Kawasaki Ninja motorcycle but under Wisconsin law the debtor retained some property rights prior to sale, so now in Bankruptcy proceedings the debtor’s estate has rights to that property. The banks failure to return the property was a willful violation and the bank was held in contempt.

In re: Jason R. Herbst, Debtor.

(Chapter 13) Case No. 12-11044


469 B.R. 299

April 11, 2012, Decided

Opinion by US Bankruptcy Judge Robert D. Martin:

Jason Herbst (the debtor) filed a Chapter 13 petition on February 29, 2012, and a Motion for Contempt and for Return of Property on March 6, 2012. He alleges that Talmer Bank & Trust (the bank) violated the automatic stay by refusing to return equipment that the bank repossessed prepetition.

The repossessed equipment was the subject to security agreements that provided as a remedy for default, the bank “may repossess the Property so long as the repossession does not involve a breach of the peace. [The bank] may sell, lease, or otherwise dispose of the Property as provided by law.” The debtor defaulted, and in March 2011, the bank filed a complaint for replevin in Lafayette County. A default judgment was entered against the debtor on May 16, 2011, which states:

“…Plaintiff is entitled to possess and sell the following collateral:

Machinery, vehicles, fixtures, farm machinery and equipment, shop equipment, office and record keeping equipment, parts and tools

Farm products, crops, feed, seed, fertilizer, medicines and supplies.

All government program payments.

2004 Kawasaki Ninja 250R VIN: JKADXMF164DA06034

2005 Chevrolet truck VIN: 1GCJK33215F920432

Plaintiff may sell said collateral as provided in the Security Agreements subject to this action and apply the net sale proceeds to the above stated sum adjudged due and owing from Defendant to Plaintiff…

Plaintiff shall be entitled to issuance of a Writ of Replevin upon request of plaintiff.”

Under a Writ of Replevin, the bank repossessed five items of equipment on December 8, 2011, and placed them at an auction house. There is no evidence that a sale or other disposition has yet occurred. Nor is there evidence that a contract for disposition was formed. The bank has refused to release the replevied equipment. The debtor seeks to have the bank adjudged to be in contempt for violation of the § 362(a) stay. He also seeks actual and punitive damages (including costs and attorney fees), and the return of the collateral to the debtor.


Wisconsin law indicates that the debtor retains a right of redemption as long as a sale or contract for sale has not occurred


The bank may have believed that it was legally entitled to retain possession of the collateral in light of the judgment, but a violation of the stay is “willful” even if the actor believes himself justified. Since the bank knew of the bankruptcy filing and still retained possession of the collateral, it willfully violated the stay. Therefore, the bank is in contempt until it returns the collateral.

A schizophrenic prisoner was sent to disciplinary segregation and claims violation of due process. Court disagrees. Ninja is in reference to the style of shoes provided to prisoners in segregation – “ninja-style soft shoes”


Civil No. 10-1002 (DWF/LIB)


2012 U.S. Dist. LEXIS 39029

Decided February 14, 2012

Opinion by US Magistrate Judge Leo I. Brisbois:

Facts Relating to Plaintiff

Plaintiff suffers from paranoid schizophrenia and schizoaffective disorder. (Amended Compl. [Docket No. 15], p. 2.) Initially, Plaintiff was incarcerated in MCF-St. Cloud in December 2008. (Id). Plaintiff has been incarcerated at MCF-Oak Park Heights (MCF-OPH) and MCF-Stillwater since January 2009. (McComb Aff. [Docket No. 41], Ex. A). While at MCF-OPH and MCF-Stillwater, Plaintiff spent time in the administrative control unit. Id.

Throughout his time incarcerated, Plaintiff has received a number of disciplinary violations. (Green Aff. [Docket No. 80], Ex. D). From December 2008 to the filing of Plaintiff complaint on March 29, 2010, Plaintiff has been involved in 19 separate disciplinary incidents. Id. These violations have resulted in lengthy stays in disciplinary segregation for the Plaintiff. Id. One violation that occurred on November 23, 2009 required Plaintiff to spend 240 days in disciplinary segregation. Id. Other punishments, however, have been shorter. Plaintiff only received five days in administrative segregation for one of his violations. Id. [Footnote1: Plaintiff’s major disciplinary violations have also added approximately 370 days to his incarceration. (Green Aff.)]

Regarding due process claims:

the Court finds that this case mirrors the claim in Johnson v. Beard, 2008 U.S. Dist. LEXIS 113616, 2008 WL 2594034 (M.D. Pa. June 27, 2008). In that case, the prisoner raised an identical claim to that of the Plaintiff’s now before this Court. Specifically, the prisoner in Johnson alleged that “Defendants violated his due process rights by placing him in punitive segregation lock-down for at least 1090 days as punishment for the symptoms of his mental illness.” Johnson, 2008 U.S. Dist. LEXIS 113616, 2008 WL 2594034, at * 6. However, the Court found that placing a prisoner in punitive segregation, even if he suffered from a mental illness, did not constitute an atypical and significant hardship creating a liberty interest protected by the due process clause. 2008 U.S. Dist. LEXIS 113616, [WL] at * 7. In the instant case, like in Johnson, the Plaintiff contends that his placement in punitive segregation for 19 months was punishment for having a mental illness. But, such placement does not create a protected liberty interest.

Plaintiff has not presented any admissible evidence that his time spent in punitive segregation was so restrictive that it was atypical and significant in relation to the ordinary incidents of prison life. [Footnote4: Plaintiff contends that the restrictions of punitive segregation are more onerous than those of administrative segregation and prisoners in punitive segregation are allowed $20 dollars to purchase items from the canteen, only receive “county jail-like ‘pajama’ clothes,” receive “ninja-style soft shoes,” must use communal underwear and socks, are not allowed photographs, newspapers, and magazines, and cannot receive visits. (Pl’s Mem. in Opp’n, p. 18). However, these limitations do not give constitute a significant and atypical hardship. See Emil v. Crawford, 125 Fed.Appx. 112, 112-13 (9th Cir. 2005) (finding that the denial of canteen privileges does not trigger due process rights); Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997) (holding that administrative segregation for six months with vermin; human waste; flooded toilet; unbearable heat; cold food; dirty clothing, linens, and bedding; longer periods in cell; no outside recreation; no educational or religious services; and less food was not so atypical as to impose significant hardship); Ind v. Colorado Dept. of Corrs., 2011 U.S. Dist. LEXIS 151833, 2012 WL 161418 (D. Colo. Jan. 19, 2012)(restrictions on books and magazines does not violate a constitutional right); Gordon v. Downs, 175 Fed.Appx. 798, 798-99 (9th Cir. 2006)(affirming district court’s finding that suspending visitation rights without a disciplinary hearing did not create an “atypical and significant hardship in relation to the ordinary incidents of prison life”); Ware v. Morrison, 276 F.3d 385, 387 (8th Cir. 2002) (“loss of visitation privileges is within the ordinary incidents of confinement and cannot be considered an atypical and significant hardship”).]

Plaintiff has, therefore, not created a genuine issue of material fact that he has a protected liberty interest to not be placed in segregated confinement for disciplinary infractions which would give rise to a right to due process before being placed in segregation. On this claim, the Court recommends that the Defendants’ summary judgment motion be granted.

The Magistrate Judge recommendations were adopted by District Judge Donovan Frank on 3/22/2012

Police warrants on protest groups before the Republican National Convention – implicates the rights to associate and protest and rights of search and seizure. The warrants were for bomb-making materials, but at one plaintiff’s address they found ninja foot spikes. This is the decision on motions for summary judgments.

ROBERT FLETCHER, individually and in his official capacity as Ramsey County Sheriff, INSPECTOR SAMEC, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COMMANDER RICH CLARK, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COMMANDER SOMMERHAUSE, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COUNTY OF RAMSEY, a Minnesota municipal entity CERTAIN UNKNOWN AND UNNAMED SAINT PAUL POLICE OFFICERS, CITY OF SAINT PAUL, CERTAIN UNKNOWN AND UNNAMED CITY OF MINNEAPOLIS POLICE OFFICERS, and CITY OF MINNEAPOLIS, a Minnesota municipal entity, Defendants.

Civil No. 08-5093 (JRT/LIB)


2011 U.S. Dist. LEXIS 34638

Decided March 31, 2011

Opinion by US District Judge John R. Tunheim:

Defendants Robert Fletcher, Tony Samec, Dale Sommerhause, and Rich Clark (“defendants”) executed search warrants at various locations in August 2008 in relation to alleged illegal activity undertaken by members of a group known as the Republican National Convention Welcoming Committee (“RNCWC”). Defendants seized a large quantity of documents and other items, some of which allegedly belongs to plaintiffs Scott Demuth, Alexander Lundberg, Celia Kutz, Nathan Clough, Vincent Collura, and Andrew Fahlstrom (“plaintiffs”).

Plaintiffs are alleged co-owners of various materials seized by police officers during a raid of several buildings in 2008, prior to the Republican National Convention (“RNC”). Kutz, Fahlstrom, and Clough were members of a collective known as the RNCWC which raised funds to rent space to congregate, share ideas, and organize various protest activities related to the RNC. The RNCWC provided space and tables to allow the distribution of their own literature, as well as the literature of other groups and activists. The RNCWC intended to shut down the RNC to prevent it from occurring, and to prevent delegates from arriving at the RNC’s location.

The documents include statements such as “EVERYTHING YOU NEED TO KNOW TO BE SMART AND DANGEROUS DURING THE RNC BEFORE YOU ASK,” and explicit instructions for making a Molotov cocktail.

On August 29, 2008, Inspector Tony Samec, Commander Dale Sommerhause, and Commander Rich Clark of the RCSO applied for and received a warrant to search for assembled and unassembled bombs and materials to construct bombs, documents, and other materials at the Convergence Center. The application and resulting warrant described a variety of weapons and materials the affiants believed would be found there, including “[a]ssembled improvised incendiary devices . . . [i]gnitable liquids . . . [s]moke bombs . . . [and] [m]anuals, books and/or instructions for the construction of Molotov cocktails, bombs and other direct action techniques[.]”

One of the addresses searched:

D. 3500 South Harriet Avenue

On August 30, 2008, at 8:00 am, officers executed a search warrant at 3500 South Harriet Avenue. (Incident Report 3500 S. Harriet Ave., Samec Aff. Ex. A, Docket No. 56.) Officers located several weapons, including “ninja foot spikes,” a slingshot, and documents relating to the RNC. (Id. at 4-5.) Plaintiff Vincent Collura alleges that after entering the house, police ordered him to lie on the floor, where he was handcuffed and searched, then was unbound and taken outside approximately a half-hour later.

Collura testified that he resided at the residence at the time of the search, and shared a bedroom with Max Specktor. Collura also asserts ownership of a two-page address and phone list, from which he was transferring phone numbers into a new cell phone, that was seized by officers effectuating the warrant. Collura testified that the raid had a chilling effect on his desire to participate in the planned protests of the RNC for fear of further interactions with the police. (Collura Dep. 54:5-7, Apr. 30, 2010, Angolkar Aff. Ex. P.)

A whole bunch of legal analysis – concluding:

Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that:

1. Defendants’ Motion for Summary Judgment [Docket No. 53] is GRANTED in part and DENIED in part;

a. The motion is GRANTED as to plaintiffs’ claims for conspiracy, failure to prevent, and claims under Monell;

b. The motion is GRANTED as to claims against any unknown officers. The “certain unknown and unnamed Saint Paul Police Officers, including officers John Doe and Jane Roes 1 thru 100” and “certain unnamed and unknown City of Minneapolis Police Officers, including officers John Doe and Jane Does 1 thru 100,” are DISMISSED with prejudice.

c. The motion is DENIED in all other respects.

2. Plaintiffs’ Motion for Partial Summary Judgment [Docket No. 51] is DENIED.

DATED: March 31, 2011

at Minneapolis, Minnesota.

/s/ John R. Tunheim

In this case a writ for habeas relief is granted based on faulty jury instructions. The reference to “ninja” is from the testimony of a seven year old. The court explains that this testimony “certainly could have [been] discredited” by the jury.


No. 07-56756, No. 08-55524


425 Fed. Appx. 617

Filed March 31, 2011

Before Circuit Judges: Fletcher, Berzon and Callahan. Judge Callahan dissented. The majority opinion explains:

key witness for the prosecution was Latrina Walker, Sherrors’s 24-year-old mentally-disabled sister, who testified that she had been drinking and smoking marijuana the evening of the murder. Additionally, Walker’s mother and aunt both testified that she was untruthful and unreliable. In light of these reasons to doubt her accuracy as a witness, the jury well could have chosen not to believe Walker’s account. FN6

FN6- A third witness, who was five years old at the time of the murder and seven at trial, testified that not only did he see blood on Sherrors’s shirt and shoes the night Foth was killed, but that he saw Foth dismembered by men with ninja swords. The jury certainly could have discredited him entirely as well.

No direct evidence linked Sherrors to Foth’s murder.


The dissent suggests that the instructional error was cured by the trial court’s instructions on the particular elements of the crimes charged and the beyond a reasonable doubt standard. See Dissent at 4. But these general instructions simply “could not overcome the misdirection of a specific instruction that permitted the jury to find an element of the crime without considering all the evidence.” Rubio-Villareal, 967 F.2d at 300.


the district court’s conditional grant of Sherrors’s petition for the writ of habeas corpus is AFFIRMED.