More scam email directed to lawyers

The most recent spam to hit my mailbox:

Notice to Appear,

You have to appear in the Court on the August 28.

You are kindly asked to prepare and bring the documents relating to the case to Court on the specified date.

Note: The case will be heard by the judge in your absence if you do not come.

You can review complete details of the Court Notice in the attachment.

Yours faithfully,

Seth Moon,

Clerk of Court.

There are several problems here

  1. I don’t know of any clerk named Seth Moon in Mississippi
  2. The email didn’t originate from anyone in Mississippi
  3. The email doesn’t contain any court specific information
  4. The email doesn’t contain any case specific information
  5. Clerks in Mississippi do not use the scammer’s preferred closing of “Yours faithfully”
  6. Hearings don’t just pop out of thin air
  7. The email contains an attachment in zip file

Why is the .zip file of any significance?  Files that use the .zip extension are favored by hackers for a number of reasons according to computer technology expert Leo Notenboom in his blog entry “Why Spammers Love ZIP Files and How You Need to Stay Safe”.

Never open an attachment from anyone unless you are expecting the email and if you see a .zip file, double check with the sender to make sure they actually sent the file.

Will the AshleyMadison.com data dump lead to divorces in Mississippi?

AshleyMadison

AshleyMadison.com is a website designed for married people to find a person with which to have an affair. Their slogan is “Life is short.  Have an affair.”  The bottom of their site contains what appear to be little awards claiming “Trusted Security Award” and “100% Discrete Service.”  Not so.

By now you have probably heard about the AshleyMadison.com (AM) data dump.  This story began back on July 15 when online security expert Brian Krebs reported that a group of hackers named the Impact Team had compromised the databases and proprietary electronic information of AM, its parent company Avid Life media and related sites Cougar Life and Established Men.

A little over a month later on August 18 the data dump started showing up around the web.  Various sites have popped up where you can search the database by email address including this one.  According to Joseph Cox at Motherboard, the Impact Group as now dumped another set of data that is roughly twice the size of the first dump.

The two AM data dumps come on the heals of yet another data dump at adult hookup site AdultFriendFinder.com a few months back.  Cheaters beware.

So how long will it be before the first client walks into a lawyer’s office in Mississippi asking for a divorce based on the AshleyMadison or AdultFriendFinder data dumps?  If it hasn’t already happened, it won’t be long.

3 years to file for alienation of affection in MS, but when does the 3 years start?

As the above letter from a reditt user shows, there are a number of ways to seek revenge with a cheating spouse.  If you are in Mississippi, you can add the filing of an alienation of affection lawsuit against the paramour to the list.

Mississippi is one of only a handful of states that allows a legal claim for alienation of affection.To prevail, a plaintiff must show  the legal elements for the claim which are wrongful conduct of the defendant, loss of affection or consortium and a causal connection between the conduct and the loss.  Fitch v. Valentine, 959 So.2d 1012, 1015 (Miss. 2007).  In addition, the plaintiff must file the lawsuit within the statute of limitations.  “Thought alienation of affection is an intentional tort, it does not have a specifically prescribed statute of limitations.  Therefore, we apply the general three-year statute of limitation..” Fulkerson v. Odom, 53 So.3d 849, 851 (Miss. Ct. App. 2011).

Under Mississippi law, a claim of alienation of affection accrues when the alienation of affection or loss of affection is finally accomplished.  The accrual of the claim, then, occurs when the affections of the spouse involved in the extramarital relationship are alienated.  The affections of the spouse wronged by the affair are irrelevant to a determination of when the cause of action accrued.

Carter v. Reddix, et al, 115 So.3d 851, 857 (Miss. Ct. App. 2012)(internal citations omitted).  The discovery rule does not toll the three year statute of limitations. Fulkerson v. Odom, 53 So.3d 849 (Miss. Ct. App. 2011).

With those general principles in mind, the Mississippi Court of Appeals is set to her oral argument in the case of Shane Anderson v. James B. Ladner in cause no. 2014-CA-00730 on Wednesday at 10:30 a.m.

Webcast link.

Brief of Shane Anderson

Response of James B. Ladner

Reply of Shane Anderson

Anderson brought claims against Ladner for alienation of affection (AA), reckless infliction of emotional distress and punitive damages.  The statute of limitations for an intentional infliction of emotional distress claim is one year and a claim for punitive damages is not a stand alone claim, so lets focus on the AA claim.

At the trial court level, Ladner argued that the filing of the joint filed divorce triggered the running of the statute of limitations on the AA claim.  The trial court agreed and dismissed the case.

On appeal, Anderson primarily argues for a bright line rule that accrual of an alienation of affection case begins at the finalization of the divorce and that such a rule “would be more consistent with the irreconcilable differences divorce statute because the statute itself provides for an opportunity for reconciliation.”  Anderson’s Brief at p. 10.

Ladner counters that Anderson didn’t request a bright line rule before the trial court and that Anderson’s claim accrued at the time the complaint for divorce was filed.  Ladner also argues that Anderson is prohibited from arguing a different accrual date due to res judicata and collateral estoppel.

So when exactly does the three years start?  The positions advocated by both parties have positives and negative attributes.  A bright line rule provides clarity.  However, consider the situation where a married couple files for divorce, but subsequently reconcile in spite of an earlier alienation of affection by a third party.  Anderson’s position would be that an AA claim never accrued because there was no divorce.  Ladner’s position is in and of itself a form of bright line rule.  Any time a divorce was filed (regardless of whether the parties completed the divorce), the statute of limitations would begin to run on an AA claim.

Tune in tomorrow at 10:30 for the argument.

New email scam involving DHL going around

b58

My wife is a fan of all things involving the Minions.  When McDonalds paired with the makers of Despicable Me2 for Minion Happy Meal toys, I bought her the entire set from ebay rather than trying to kill ourselves via Happy Meals.  McDonalds again paired with the producers of the Minions movie so there is now yet another set of Minions headed out in Happy Meals to the delight of little children everywhere.  Once again, I ordered them from ebay.

I relay my Minion history to get to a point…..I am expecting a very important package of Minions in the mail.  This morning, rather than a package, I receive an email that appears to be from DHL.  Maybe the email is to inform me my Minions have been delayed or even worse, lost.

Scam1

Or, it has nothing to do with my Minions.  The email didn’t come from DHL.  I pulled up the email header info and looked for the originating IP address.  41.71.189.141  Guess where that is?  Nigeria.  If there was a way to block emails from an entire country, I would. Maybe you folks out there in internet land are different, but nothing productive comes to me by way of Nigerian email.

Scam2

Writ denied in alienation of affection case involving golfer John Daly

The United States Supreme Court refused to take up the alienation of affection case involving John Daly’s ex-wife and his alleged mistress.  The docket reflects that the petition for a writ of certiorari was denied today.

No. 14-1253
Title:
Anna Cladakis, Petitioner
v.
Sherrie Allison Miller
Docketed: April 17, 2015
Lower Ct: Court of Appeals of Mississippi
  Case Nos.: (2012-CA-01198-COA)
  Decision Date: June 17, 2014
  Rehearing Denied: October 14, 2014
Discretionary Court
  Decision Date: January 15, 2015
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Apr 15 2015 Petition for a writ of certiorari filed. (Response due May 18, 2015)
May 4 2015 Waiver of right of respondent Hooters of America, LLC to respond filed.
May 4 2015 Waiver of right of respondents Provident Advertising and Marketing, Inc., et al. to respond filed.
May 18 2015 Waiver of right of respondent Sherrie Allison Miller to respond filed.
Jun 2 2015 DISTRIBUTED for Conference of June 18, 2015.
Jun 22 2015 Petition DENIED.

I previously discussed the Cladakis case here.  It is time to either set this one for trial or settlement talks.  Either way, John Daly better start making some big bucks to finance the lawyers, settlement and/or verdict that are headed toward his fiancee, Ms. Cladakis.  As for now, Ms. Miller has Daly and the future Mrs. Daly by the Titleist.

Funny quotes this Week

I don’t usually pay attention to my husband much of the time.

Juror number 872 in the Aurora Theater trial explaining why she didn’t inform the trial judge about a tweet concerning the case she read from her husband.  Full story at Denver Post.

I had to smoke one, you know?

Rapper Rick Ross explaining what lead to his arrest for a traffic violation and possession of marijuana.  For some reason, he thought it would be a good idea to squirt something at the reporter covering the story as well.

For their own good, vegetarians should never be allowed near fine beers and ales. It will only make them loud and belligerent, and they lack the physical strength and aggressive nature to back up any drunken assertions.

Anthony Bourdain.  Eleven more great quotes from the man with a job I envy.

Trifecta of email scams sent to me today

Hello,

FedEx wishes you to confirm Package of $750,000.00 (Seven Hundred and Fifty Usd) from the CNN TV Online Lottery as registered with us in your name, for shipping to your residence. Do respond to dispatch with a confirmation of your address. Contact the dispatch

director:

Mr. Jim Coker

Email- fedexjimofficer@gmail.com

Tel: +27- 616-911-747

Note that the cost of delivery is $210 (one Hundred dollars)

your registration code of ( Shipment Code: awb-33xzs). please Contact with your information such as, Your Name, Your Address and Your Telephone Number:

Thank You For Your Time,

Carl Walters

Branch Manager.

Fedex Team Department

If there was such thing as a “CNN TV Online Lottery” don’t you think they would deliver the money to my door like Publishers Clearing House?  Or, maybe even require that I enter the lottery?  Or, use an email address from either CNN or FedEx?  Or, even use a FedEx tracking number rather than some “shipment code”?

Dear Friend,

I am Mr.Alim Mohammad, The head of file department of Bank of Africa (B.O.A) here in Burkina Faso / Ouagadougou. In my department we discover an abandoned sum of (US$18million US Dollars) in an account that belongs to one of our foreign customer who died along with his family in plane crash.

It is therefore upon this discovery that I now decided to make this business proposal to you and release the money to you as the next of kin or relation to the deceased for the safety and subsequent disbursement since nobody is coming for it. I agree that 40% of this money will be for you, while 60% would be for me. Then after the money is been transferred into your account, I will visit your country for an investment under your kind control.

You have to contact my Bank directly as the real next of kin of this deceased account with next of kin application form. You have to send me those your information below to enable me use it and get you next of kin  application form from bank, so that you will contact Bank for the transfer of this money into your account.

Your Full Name………………….

Your Home Address…………..

Your Age………………………..

Your Handset Number………..

Your Occupation……………….

I am waiting for your urgent respond to enable us proceed further for the transfer.

Contact me through my private email address: allim.moha1@gmail.com

Yours faithfully,

Mr.Alim Mohammad.

Friend?  I don’t know anyone named Alim.  Any opportunity from Africa by email is 100% guaranteed to be a scam.  While I am no expert on African banking law, I suspect there are some laws there that would give the money over to the government as opposed to someone from the US that has no proof of being the next of kin.  How many people in the US actually have a relative with $18M?  I certainly don’t.  I suspect you could add the net worth every relative in my family history for a couple generations and not total up $18M.  People with $18M disposable keep it in the Caymans or Cook Islands, not some bank in Africa that is subject to the winds of political change.  Once again, bank employees don’t use gmail accounts to transact business.

Greetings My Dear Friend,

Before I introduce myself, I wish to inform you that this letter is not a hoax mail and I urgent you to treat it serious. This letter must come to you as a big surprise, but I believe it is only a day that people meet and become great friends and business partners.

Please I want you to read this letter very carefully and I must apologize for barging this message into your mail box without any formal introduction due to the urgency and confidentiality of this business and I know that this message will come to you as a surprise. Please this is not a joke and I will not like you to joke with it ok, with due respect to your person and much sincerity of purpose, I make this contact with you as I believe that you can be of great assistance to me. My name is Mr.Alim Mohammed, from Burkina Faso, West Africa.

I work in African Development Bank (ADB) as telex manager, please see this as a confidential message and do not reveal it to another person and let me know whether you can be of assistance regarding my proposal below because it is top secret. I am about to retire from active Banking service to start a new life but I am skeptical to reveal this particular secret to a stranger.

You must assure me that everything will be handled confidentially because we are not going to suffer again in life. It has been 10 years now that most of the greedy African Politicians used our bank to launder money overseas through the help of their Political advisers. Most of the funds which they transferred out of the shores of Africa were gold and oil money that was supposed to have been used to develop the continent. Their Political advisers always inflated the amounts before transferring to foreign accounts, so I also used the opportunity to divert part of the funds hence I am aware that there is no official trace of how much was transferred as all the accounts used for such transfers were being closed after transfer.

I acted as the Bank Officer to most of the politicians and when I discovered that they were using me to succeed in their greedy act; I also cleaned some of their banking records from the Bank files and no one cared to ask me because the money was too much for them to control. They laundered over $5billion Dollars during the process.

Before I send this message to you, I have already diverted ($17.4million Dollars) to an escrow account belonging to no one in the bank. The bank is anxious now to know who the beneficiary to the funds is because they have made a lot of profits with the funds. It is more than Eight years now and most of the politicians are no longer using our bank to transfer funds overseas. The ($17.4million Dollars) has been laying waste in our bank and I don’t want to retire from the bank without transferring the funds to a foreign account to enable me share the proceeds with the receiver (a foreigner). The money will be shared 60% for me and 40% for you. There is no one coming to ask you about the funds because I secured everything.

I only want you to assist me by providing a reliable bank account where the funds can be transferred. You are not to face any difficulties or legal implications as I am going to handle the transfer personally. If you are capable of receiving the funds, do let me know immediately to enable me give you a detailed information on what to do. For me, I have not stolen the money from anyone because the other people that took the whole money did not face any problems. This is my chance to grab my own life opportunity but you must keep the details of the funds secret to avoid any leakages as no one in the bank knows about the my plans.

Please get back to me if you are interested and capable to handle this project, I shall intimate you on what to do when I hear from your confirmation and acceptance. If you are capable of being my trusted associate, do declare your consent to me.

I am looking forward to hear from you immediately for further information.

Thanks with my best regards.

Mr. Alim Mohammed

Telex Manager

African Development Bank (ADB)

Burkina Faso.

I feel so much better with his assurance that it isn’t a hoax.  Does it seem odd that in most every one of these email scams they have millions in an account that they created, but need your account info to transfer the money somewhere?  If created an account that now has $17.6M in it and you want to transfer it, just go open another account.

These scams prey upon the greed and to a lesser degree, stupidity of the recipients.  Most people hit the delete button without given them a second glance.  What the scammers bank on is the one person that sends them some money.  In poverty stricken Africa, it doesn’t take many US dollars for someone to live very nice for a long time.

Making a federal case out of it?

Very few cases make it to the United States Supreme Court.  According to stats from the Court, they receive “approximately 10,000 petitions for a writ of certiorari each year.  The Court grants and hears oral argument in about 75-80 cases.”  Your ordinary car wreck case where both parties are residents of the same state generally doesn’t have any federal questions.  Appeals end at the highest appeals court for the state where the case was tried.

The alienation of affection case involving pro golfer John Daly that I previously discussed here is making a stop by the US Supreme Court due to the defendant filing a petition for writ of certiorari.  The basis of the petition boils down to claiming the Mississippi courts have no jurisdiction over the defendant where:

  • The plaintiff and defendant are non-residents of Mississippi
  • The defendants contacts with Mississippi are insufficient to confer jurisdiction
  • Mississippi has “virtually no interest in entertaining this dispute between the Plaintiff and another nonresident to which no Mississippi substantive law is likely to apply”
  • The states of residency for the parties have abolished the tort of alienation of affection therefor allowing Mississippi courts to exercise jurisdiction here would corrupt the doctrine of state sovereignty.

Interesting arguments that raise federal issues.

The original opinion from the Mississippi Court of Appeals states:

While the state’s interest is not as strong in this case as it was in Knight since the marriage at issue is not a Mississippi marriage, we still conclude that Mississippi has “an especial interest” in this case. The Legislature, in modifying our state’s long-arm statute in 1980, expressed the public policy of the state to provide a forum for nonresidents to pursue compensation for torts committed in whole or in part in this state. See Camp, 462 So. 2d at 727; 1980 Miss. Law, Ch. 437. ¶33. The trial court recognized Miller’s strong interest in obtaining effective relief for the alienation-of-affection tort she alleges occurred within our borders. Miller lacks a viable alternative forum to adjudicate that claim, since both Tennessee and Florida have abolished alienation-of-affection as a cause of action. This fact increases Mississippi’s interest in adjudicating this claim.

While I support Mississippi’s reluctance to abolish alienation of affection cases for the benefit of Mississippi residents, I fail to see what business Mississippi has in providing a forum for out of state litigants in these matters or why Mississippi’s interests are increased in the matter due to the litigants being residents of states that have abolished alienation of affection.

My take – the Court of Appeals got it wrong, but statistically I do not expect the US Supreme Court to fix it.  Petition for writ of certiorari will be denied.  The case will head toward trial in Mississippi and may very well end up before the Mississippi appellate courts once again.  For now, alienation of affection cases are viable in Mississippi where:

  • the defendant is a Mississippi resident,
  • a non-resident defendant engages in acts (romantic rendezvous) in furtherance of the alienation of affection while physically present in Mississippi, or
  • a non-resident defendant directs contact (phone calls, gifts, emails, text messages, etc.) to a married person in Mississippi in furtherance of the alienation of affection.

Return to sender, reverse and render

Arguably the most famous person ever born in Tupelo, Mississippi had a little hit back in 1962 titled “Return to Sender”

I gave a letter to the postman,
He put it his sack.
Bright in early next morning,
He brought my letter back.

She wrote upon it:
Return to sender, address unknown.
No such number, no such zone.

Hopefully, Elvis wasn’t singing about sending love letters to a married person as was central to Nordness v. Faucheaux case handed down today by the Mississippi Supreme Court.

Phillip and Paige Faucheux were a military couple who moved frequently, but lived in Mississippi during the time relevant to the case.  While Phillip was a resident of Mississippi he began a relationship with Francesca Nordness, a resident of Louisiana.  According to the opinion:

Phillip and Francesca continued the affair while Phillip trained in south Louisiana. Phillip often would drive Francesca around in his Mazda pick-up truck with Louisiana license plates. Francesca never visited Phillip in Mississippi, and Phillip never told Francesca that he lived in Mississippi. Instead, he misled her into believing he actually lived in Memphis. His cell phone had a “901” area code—the area code for the Memphis area—and he sent her packages with a Memphis return address.

and

Francesca and Phillip continued to rendezvous at locations across the country, including Louisiana, Florida, North Carolina, Nevada, and Colorado—but never Mississippi. And although the two exchanged e-mails, phone calls, and text messages, Francesca never knowingly communicated with Phillip while he was in Mississippi. Phillip also sent Francesca several FedEx packages during this time, but according to Phillip’s uncontroverted testimony, he always used a Memphis return address.

Paige finally decided enough was enough and divorced Phillip.  Shortly thereafter, Paige brought suit in Mississippi against Francesca for alienation of affection and a number of related torts.  Francesca filed a motion to dismiss due to lack of personal jurisdiction claiming in essence “I wasn’t in Mississippi and didn’t do anything in Mississippi.”  The trial court denied the motion and the parties ended up before the Mississippi Supreme Court.

Several recent alienation of affection cases before the Court have centered on claims by defendants of insufficient contact with Mississippi to support personal jurisdiction.  To the best of my recollection, all of those challenges have failed until today.

In Miller v. Provident Adver. & Mktg., 2014 Miss. App. LEXIS 339, 24-25 (Miss. Ct. App. June 17, 2014) involving pro golfer John Daly, the Court of Appeals found:

[T]he alleged sexual activity between Cladakis and Daly within the state of Mississippi, which contributed to the breakup of Daly’s marriage with Miller, constituted a tort committed, at least in part, within this state. For whatever reason Cladakis and Daly chose Mississippi for the site of their liaisons, this Court finds that decision constituted a purposeful availment to activities within the state for purposes of personal jurisdiction.

In Knight v. Woodfield, 50 So. 3d 995 (Miss. 2011) the court found sufficient contacts where “Knight admitted he was aware that Dakka and Woodfield were married and that Dakka lived with Woodfield in Mississippi.”

In contrast to Miller and Knight, the Court in this case could find no purposeful contact by Francesca with the State of Mississippi.

The record includes no evidence that Francesca created sufficient purposeful minimum contacts with Mississippi by having an affair with a man she did not know lived in Mississippi. Her calls and text messages to Phillip’s Memphis telephone number do not establish minimum contacts in Mississippi. A nonresident defendant must knowingly and purposefully establish minimum contacts with the forum state—in this case, Mississippi—such that the nonresident reasonably can expect to be haled into court in that state.

Nordess, at paragraph 45.  The end result from the Court was to reverse and render.

*Short practice tip – If you plan on filing an alienation of affection case in Mississippi against a non-resident of Mississippi, find some knowing contact by the paramour with the State of Mississippi.  That contact could be:

  • directing emails, letters, texts messages or gifts to the married person in the State of Mississippi
  • knowledge by the paramour that the married person is a Mississippi resident
  • presence of the non-resident paramour in the State of Mississippi to engage in a sexual act with the married person or further the illicit affair

If you can’t prove these minimum contacts your lawsuit, like the King’s letter, will be returned to sender.

The worst pro se filing ever?

Last week on tax day made 15 years for me in the practice of law.  In that period of time I have crossed paths with some really good people and a considerably smaller group that were anything but.  Just when I thought I had viewed most every absurd thing that could be filed in a court, I saw this jewel that was filed in the US District Court for the Northern District of Georgia by an irate pro se plaintiff.  I did not bother to count the number of F-bombs in her “Notice to F*ck this Court and Everything It Stands For” but the number is substantial.

http://www.docdroid.net/y8kx/41-main.pdf.html

This woman will likely end up in jail or a mental institution in the very near future.

Here is a small piece of advice I give every client before deposition and that applies equally to anyone filing a document in Court…..Do not use profanity for any reason unless you are directly quoting to the Court what someone else said that is important to your case.

Unfortunately, something will likely top this pro se pleading before I make my next 15 years.

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