Volume 1, Issue 3
3rd Quarter, 2006

BINA48 VS. EXABIT CORPORATION (Fla. MD 2005): Defendant's Brief

page 3 of 8

2. Standing.

In order for Plaintiff to have standing and therefore a judiciable “case or controversy,” Plaintiff must satisfy three constitutional requirements:

(a) that it has suffered a particularized, concrete injury to a legally protected interest (injury in fact);

(b) the injury is fairly traceable to the challenged action (causation); and

(c) it is likely that the injury may be redressed by judicial action (redressability).

See Charles H. Wesley Educ. Found., Inc. v. Cox 408 F.3d 1349 (11th Cir. Ga. 2005) (emphasis added).[1]

The U.S. Supreme Court has stated that the injury cannot be “conjectural” or “hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992). It must be an “actual or imminent” injury of a “legally protected right.” Id. At 561. Moreover, that “[t]he party invoking federal jurisdiction bears the burden of establishing these elements.” Id.

In the instant case, Plaintiff has not “suffered” an injury and Plaintiff has not proven otherwise. Likewise, the computer BINA48 does not have a “legally protected interest.” Because Plaintiff cannot meet even the first prong of the three part test to establish standing, Plaintiff’s Motion should be denied.

Plaintiff may argue that it acquired standing by “incorporating” itself under Florida law in 2005. “Standing is to be ‘determined as of the time … the plaintiff’s complaint is filed,’ and is not altered by events unfolding during litigation.” Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d at 1352. In 2003, Plaintiff had filed a motion for preliminary injunction and a court of competent jurisdiction (California lower court) held that BINA48 lacked standing. Because BINA48 did not have standing at the time the action was commenced (2003), it cannot now claim thatit has acquired standing by virtue of subsequent events (i.e., by incorporating itself).[2]

3. Capacity To Sue Real Party In Interest.

Under Rule 17(b) of the Federal Rules of Civil Procedure, “the capacity of an individual, to sue or be sued shall be determined by the law of the individual’s domicile.” FED.R.CIV.P.17(b).

-The term individual does not include a computer/machine.

BINA48 is not an individual defined under Federal Rules and Plaintiff has not yet proven otherwise. BINA48 is the rightful property of Exabit Corporation and is not a “legal entity” entitled to protected status.

-The capacity of an individual to sue is “determined by law.”

Neither the California or Florida legislature, nor Federal law has granted a computer/machine legal basis for bringing the instant claim and Plaintiff has not proven otherwise.

If, however, BINA48 is claiming that it is a “corporation,” and if the BINA48-corporation is asserting that it is the entity bringing the instant lawsuit, then the pleadings are in error. See FED.R.CIV.P. 17(a) Real Party In Interest.

4. Subject Matter Jurisdiction

Plaintiff argues it may pursue a valid claim in the U.S. District Court for the Middle District of Florida based on either Diversity Jurisdiction or Federal Question Jurisdiction. Both arguments fail for the following reason:

(i) Diversity:

§ 1332. Diversity of citizenship; amount in controversy; costs.

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and cost, and is between -

(1) citizens of different states;

28 U.S.C. § 1332. (Emphasis added)

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1. The U.S. Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992), noted the following: Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756, 104 S.Ct.. at 3327; Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16, 92 S.Ct. 1361, 1368-1369, n. 16, 31 L.Ed.2d 636 (1972); [FN1] and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’ ” Whitmore, supra, 495 U.S., at 155, 110 S.Ct., at 1723 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). Second, there must be a casual connection between the injury and the conduct complained of – the injury has to be “fairly …trace[able] to the challenged action of the defendant, and not …th[e] result [of] the independent action of some third party not before the court.” *561 Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43, 96 S.Ct., at 1924, 1926.  Id. (Emphasis added) (back to top)

2. Defendant denies the fact that BINA48 is capable of incorporating itself, and that it is, in fact, a corporation under Florida law and requests strict proof thereof. For purposes of this hearing, Defendant will not challenge Plaintiff’s contention and reserves the right to address this issue at a later opportunity. (back to top)

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