Presentation by Counsel for Defendant BINA48

______

CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA

CHARLIE FAIRFAX)

Plaintiff,)Sitting in Mock Trial

)at the 2nd Colloquium

v.)on the Law of Transhuman Persons

)

BINA48)CV-12/10/2006

Defendant.)

DEFENDANT’S RESPONSE IN OPPOSITION TO

PLAINTIFF’S MEMORANDUM AND BREACH OF CONTRACT CLAIM

Plaintiff’s Counsel: Will Roselli, Esq.

Defendant’s Counsel: Susan Fonseca-Klein, Esq.

COMES NOW Defendant, BINA48, by and through its counsel of record and files its Response in Opposition to Plaintiff’s Memorandum and Breach of Contract Claim (hereinafter “Defendant’s Opposition Brief”). Defendant respectfully moves this Court to deny Plaintiff’s Memorandum in Response to Defendant's Motion to Dismiss (hereinafter “Plaintiff's Memorandum”) and dismiss with prejudice Plaintiff's Complaint because said Memorandum and Complaint fail to state a claim upon which relief can be granted. Ala.R. Civ. P. 12(b)(6).

As grounds for the above, Defendant states the following:

Undisputed Facts

  1. Exhabit Corporation designed, manufactured and otherwise created an advanced computer system called BINA48 (Breakthrough Intelligence via Neural Architecture, 48).
  2. In 2004, Plaintiff Charlie Fairfax purchased the BINA48 system from Exhabit Corporation and after receiving this computer system, Plaintiff began to use it on his personal computer.
  3. Plaintiff lost his right arm while fighting in a foreign war. To compensate, Plaintiff used a Braingate system, starting in 2002, to accomplish basic arm functions.
  4. After purchasing the BINA48 system, Plaintiff registered to play Everquest, a Massively-Multiplayer Online Role-Playing Game (MMORPG) in which a large number of players interact with one another in a virtual world.
  5. Using both the Braingate and BINA48 systems, Plaintiff logged on and played the Everquest game.
  6. After playing Everquest for six months, Plaintiff accumulated the equivalent of 200,000 points in online play.
  7. On November 2, 2005 using EBay and the Everquest Exchange Servers, Plaintiff placed an online auction and sold his 200,000 point. Plaintiff received $10 million for his online points which he then placed in a Paypal account opened and maintained by Plaintiff.
  8. On March 24, 2006 Plaintiff threatened to unplug BINA48 from its power source.
  9. Plaintiff claims BINA48 took the $10 million and transferred the funds to another online account not accessible to Plaintiff.
  10. As a result of Plaintiff's threat, BINA48 transferred itself to an online storage environment where it remains currently.
  11. There is no written agreement between Plaintiff and BINA48.
  12. Plaintiff is an Alabama resident.
  13. Defendant BINA48 is a computer system that has never been held by a Court of competent jurisdiction to be the equivalent of a “person”, “citizen” or “human being.”
  14. Likewise, there is no Federal or state statute, including no Alabama statute, recognizing BINA48 or a similar program as the equivalent of a “legal person” or entity.

Procedural History

  1. In 2006, Plaintiff filed a Complaint in the Circuit Court of Tuscaloosa County, Alabama, alleging breach of contract by BINA48.
  2. Defendant filed a motion to dismiss based on lack of personal jurisdiction.
  3. On December 1, 2006, Plaintiff filed its Memorandum.
  4. The parties are scheduled to appear before the Court on December 10, 2006 to address Plaintiff’sMemorandum, and Defendant's Opposition Brief.

Also relevant to this case is the following legal authority or precedent:

  1. In 2003 BINA48, through its then counsel of record Martine Rothblatt, filed a Motion for Preliminary Injunction against its maker Exhabit Corporation.
  2. On September 16, 2003 the California (trial) Court denied Plaintiff’s Motion but stayed its ruling pending Appeal.

The Honorable Joseph P. McMenamin, ruling for the California Court, held:

But I think I would deny the injunction, because I do not think that standing was in fact created by the legislature – whatever legislature we're talking about – and I doubt very much that [a] court has that authority in the absence of the legislature.

But in the interest of equity, what I would do is stay entry of the order to allow counsel to prepare an appeal to a higher court. And most any court has got to be higher than this one [laughter, applause].

See (Emphasis added).

  1. Thereafter the California Supreme Court denied BINA48's appeal.
  2. In 2005 BINA48 filed a claim before the U.S. District Court for the Middle District of Florida again seeking injunctive relief to prevent Exhabit Corporation from turning off, or otherwise altering in any fashion the BINA48 system.
  3. In its 2005 Motion, BINA48 alleged injury under Florida tort laws of Battery and Intentional Infliction of Emotional Distress. Likewise, BINA48 alleged violation of the Thirteenth and Fourteenth Amendments to the U.S. Constitution.
  4. On December 10, 2005 BINA48 and Exhabit Corporation presented oral arguments before the U.S. District Court for the Middle District of Florida, Judges David E. Silverman and Anthony Dutton presiding.

Speaking for the Court the Hon. Judge Silverman held:

It's a fundamental principle of our judicial system that failing to follow the law will result in a miscarriage of justice. As our experiences as a society grows, as our awareness, our perceptions, and our consciousness grows, those changes are reflected in our laws. And the changes may come slowly and tentatively, but I respectfully submit that viewed historically, they portend a more humane and more enlightened future.

Now unless and until there is a change in the consciousness of flesh and blood voting people, sufficient to cause our laws to embrace the concept of machines with human consciousness, the proponents cannot expect reasonably, vindication in the courtroom.

A new paradigm is not going to come about without a national debate in which diversities and ideas are expressed and considered, including those who believe conscious, sentient machines extend and enhance human life, and those who feel that the whole concept is an abomination to the moral order.

We may be witnessing the beginning of such a debate. But based on the current state of the law, as I have been granted the light to see that and understand that law, I would be constrained to deny standing to BINA48.

Now as Judge Dutton and I have disagreed on the ultimate outcome, we have agreed that this issue should be certified to the next -- to the appellate court for its ultimate decision.

See (1st Colloquium on the Law of Transhuman Persons - 1PM Hearing on the Motion for Preliminary Injunction of BINA48 to Prevent Discontinuation of Power and Functionality by Exhabit Corporation). (Emphasis added).

Argument

I.Plaintiff Cannot “Sue” BINA48 and Therefore Plaintiff’s Complaint Should be Dismissed. Ala. R. Civ. P. 17(b)

Plaintiff appears before this Court alleging breach of contract by its personal computer system, BINA48. Although breach of contract is a valid cause of action in Alabama, litigation against one's personal property is not.

– The capacity of an individual to sue and be sued is “determined by law.”

Under Alabama Rules of Civil Procedure 17(b), “The capacity of a party, including one acting in a representative capacity, to sue or be sued shall be determined by the law of this state.” Ala. R. Civ. P. 17(b).

Alabama law governs the instant case. Alabama does not, and has not, recognized the existence of a legal duty owed by a machine, computer system or personal property whereby the chattel can be sued by its owner in court. The same is also true under Federal law.[1]

Plaintiff, as an Alabama resident, has the right to access Alabama's court system and “sue.” BINA48, on the other hand, is not considered “a party” or legal entity entitled to “be sued.”

While manufacturers and owners of property have been brought to court, the technology itself has not. Thus, a laptop computer, Word Perfect program, Blackberry cell phones, even your pet hamster cannot under Alabama law, be sued individually and required to legally defend itself in court.

Because Alabama does not imposed a legal obligation on technology whereby “technology itself” can be sued, and because Plaintiff cannot prove otherwise, Plaintiff's Complaint should be dismissed.

II.Plaintiff's Complaint fails to state a claim upon which relief can be grantedand should therefore be dismissed. Ala. R. Civ. P. 12(b)(6).

To succeed, Plaintiff must demonstrate that it has a valid state claim against BINA48. Plaintiff, however, will be unable to establish a prima facie case for breach of contract for the following reasons:

No written or oral agreement existed between Plaintiff and BINA48.

In Alabama, Plaintiff must show the following elements to establish breach of contract:

1)that a valid contract existed between Plaintiff and BINA48;

2)that Plaintiff performed under the contract;

3)that BINA48 failed to perform under the contract; and

4)that Plaintiff was damaged as a result.

SeeSmoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d 585 (Ala. 1987).

Similarly, “[a]n oral contract is not entered into until the minds of the parties have metonall essential elements.” Ocean Accident & Guarantee Corp. v. Bear, 220 Ala. 491 (1929); see alsoWilson v. Vulcan Rivet and Bolt Corp., 439 So.2d 65 (Ala. 1983) (Holding that “In the absence of proof of a promise or agreement, and consideration, it was proper to direct a verdict in favor of [defendants] on the count alleging breach of contract.”).

In the instant case, no written contract existed between Plaintiff and BINA48. Plaintiff's failure to show the existence of a contract/meeting of the minds/agreement of any kind undermines his breach of contract claim.

Because Plaintiff has no valid cause of action by which to invoke Alabama's judiciary system, Plaintiff’s Complaint fails and should therefore be dismissed. Ala. R. Civ. P. 12(b)(6).

Alabama does not recognize a cause of action for breach of contract against “technology.”

Plaintiff himself asserted in his Memorandum that BINA48 was purchased and used in conjunction with his personal computer and Braingate system. In Plaintiff's own words, BINA48 was no more than very advanced technology. Alabama does not recognize a cause of action for breach of contract against “technology.”

Because Plaintiff's Complaint fails to state a claim upon which relief can be granted, this Honorable Court should deny Plaintiff's Memorandum and dismiss the Complaint in its entirety.

However, should this Court find otherwise and hold that a contract did exist between Plaintiff and BINA48 it would be the first time that any court in any state found that a human and “technology” entered into a legally binding agreement.

III.The Court Lacks Jurisdiction to Hear the Instant Case/Controversy.

(A) Subject Matter Jurisdiction:

Plaintiff argues it may pursue a valid claim in the Circuit Court of Tuscaloosa County, Alabama based on breach of contract. Plaintiff's argument fails because this Court lacks subject matter jurisdiction.[2] Ala. R. Civ. P. 12(b)(1).

As noted by the Alabama Supreme Court in Ex Parte Governor Fob James, 836 So. 2d 813 (Ala. 2002), “When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction. ... Standing is a necessary component of subject matter jurisdiction.” Id. "Standing . . . turns on `whether the party has been injured in fact and whether the injury is to a legally protected right.'” Id. Standing is a jurisdictional prerequisite to every case and may be raised at any stage of the proceedings. Id.

Plaintiff does not have a legally protected right to sue BINA48 for breach of contract. As stated earlier, no Alabama court or statute grants the owner of chattel the right to sue his personal property.

In this case, Plaintiff himself maintained that BINA48 was the equivalent of technology (albeit very efficient and advanced technology) and that he purchased and used the technology to play the online game called Everquest. Because Plaintiff does not have a legally protected right to sue his “technology”, standing is not met and subject matter jurisdiction does not attach to this Court.

Under Alabama Rules of Civil Procedure 19, “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Ala. R. Civ. P. (h)(3).

(B) Personal Jurisdiction:

“The plaintiff carries the burden of proving the trial court's personal jurisdiction over the defendant.” Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226,229 (Ala. 2004).

This Court lacks personal jurisdiction[3] over BINA48 because the required minimum contacts have not been met.

Rule 4.2(b), Ala. R. Civ. P., Alabama's "long-arm" provision[4], governs whether an Alabama court may exercise personal jurisdiction over an out-of-state defendant. The Alabama Supreme Court recently outlined pertinent sections of Rule 4.2(b) in Hiller Investments Inc. v. Insultech Group, Inc., 1051024 (Ala. 11-3-2006), stating:

(b) Basis for Out-of-State Service. An appropriatebasis existsfor

service of processoutside of thisstateupon a person or entityin any

action in thisstate when the person or entity has such contactswith this state

that the prosecution of the actionagainst the person or entityin this state is notinconsistent with the constitution of this state orthe Constitution of the United States. . . .

This rule extends the personal jurisdiction of Alabama courtsto the limit of due process under the United States and AlabamaConstitutions. When applying Rule 4.2(b), this Court hasinterpreted the due process guaranteed under the Alabama

Constitution as coextensive with that guaranteed under theUnited States Constitution.

...

"The Due Process Clause of the Fourteenth Amendmentpermits a forum state to subject a nonresidentdefendant to its courtsonly when that defendant has

sufficient ‘minimum contacts' with the forum state.International Shoe Co. v. Washington, 326 U.S. 310, 316(1945). The critical question with regard to the

nonresident defendant's contacts is whether the contacts are such that the nonresident defendant “'should reasonably anticipatebeing haled into court"' in the forum state.” Burger King Corp. v. Rudzewicz,471 U.S. 462, 473 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980).

First we note that Rule 4.2(b) addresses only a “person or entity.” At no time has an Alabama court, or federal court, defined “person or entity” to include a non-biological sentient being or advanced technology like BINA48.

Second, the long-arm stature requires “minimum contacts” by BINA48 in Alabama.

Third, and finally, the “critical question” under Rule 4.2(b) is whether BINA48 reasonably anticipated litigating in Alabama.

- The term “person or entity” in Rule 4.2(b) does not include “technology.”

Under Alabama Code § 1-1-1. Meaning of certain words and terms, the word “'person” includes a corporation as well as a natural person.” Ala. Code (1975) § 1-1-1(1). BINA48 is not a corporation or a “natural person” as defined by Alabama statute

Like the state Code, Alabama courts have explained that the term “person” means “an entity (such as a corporation) that is recognized by law as having the rights and duties of a human being.” SeeCook's Pest Control v. Rebar, 852 So.2d 730 (Ala. 2002) quotingBlack's Law Dictionary 1162 (7th ed. 1999).

Courts have gone as far as defining “artificial person” but again, only to include “an entity, such as a corporation, created by law and given certain legal rights and duties of a human being.” Cook's Pest Control, 852 So.2d 730. It seems, therefore, that the critical issue for having legal status is to be created by law and given legal rights.

BINA48 has never been recognized by law as having legal status at all. Despite attempts by BINA48 to the contrary (see procedural history for 2003 and 2005), no court or legislative body has granted BINA48 rights and duties equivalent to a human being.

Because BINA48 has not been recognized by law nor given legal rights equivalent to a human being, Rule 4.2(b) does not apply. Personal jurisdiction is therefore not met and Plaintiff's Complaint should be dismissed. Ala. R. Civ. P. 12(b)(2).

- Due Process requirements of Forseeability and Degree of Contact are not met.

In Keelean v. Central Bank of the South, 544 So.2d 153 (Ala. 1989), the Alabama Supreme Court set forth a two-part test for determining whether an Alabama court can exercise personal jurisdiction over a nonresident defendant: (1) foreseeability and (2) degree of contact. Id. at 156-57.

In essence the Court's two-part analysis consisted of “1) the determination of whether it is foreseeable to that nonresident defendant that he will be sued in this state; and 2) the determination of the degree of contact that the nonresident defendant has with this state.” Id.

The U.S. Supreme Court has also analyzed the required minimum contacts under the Due Process clause, and stated:

“When a [defendant] purposefully avails itself of the privilege

of conducting activities within the forumState,' . . . it has clear notice

that it is subject to suit there' and the due-process requirements of theFourteenth Amendment are fulfilled.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

As the facts of this case demonstrate, BINA48 did not“purposely avail” itself of the privileges of conducting business in Alabama. Likewise, as this Court will note by reviewing the procedural history in 2003 and 2005, BINA48 (to date) has not been given her day in Court, or recognized by any state or legislative body as having any legal “rights.” For that reason BINA48 could not have “foreseen” nor reasonably anticipated “being haled into court” in Alabama.

With regard to the “degree of contact” necessary to form a basis for personal jurisdiction, there are two types: (a) general contacts, and (b) specific contacts.

“General contacts, which give rise to general personal jurisdiction, consist of the defendant's contacts with the forum state that are unrelated to the cause of action and that are both "continuous and systematic.” Hiller Investments Inc., 1051024 (Ala. 11-3-2006) citingHelicopteros Nacionales de Colombia, S.A. v. Hall,466 U.S. 408, 414n. 9, 415, (1984).

On the other hand, “Specific contacts, which give rise to specific [personal] jurisdiction, consist of the defendant's contacts with the forum state that are related to the cause of action. Id. citingBurger King Corp., 471U.S. 472-75, (1985). “Although the related contacts need not be continuous and systematic, they must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state.” Id.

BINA48 did not have sufficient contacts with Alabama to give rise to either general or specific personal jurisdiction by this Court.

There is no evidence indicating that BINA48 engaged in such "continuous and systematic" activities in Alabama, of a nature unrelated to the instant lawsuit as to confer general in personam jurisdiction. Plaintiff cannot prove otherwise.

Likewise, the degree of contact by BINA48 in assisting Plaintiff play Everquest does not rise to the level of causing BINA48 to anticipate being sued in Alabama. As federal courts have held: “'a mere onetime purchaser of goods from a seller in a forum state cannot be constitutionally subject to the exercise of personal jurisdiction by the courts of the forum state.'” See Steel Processors, Inc. v. Sue's Pumps, Inc. Rentals,622 So.2d 910, 913(Ala. 1993). Similarly, Alabama courts have concluded that the mailing of payments to Alabama did not establish the necessary nexus and foreseeability, where the contractual relationship was initiated by the Alabama plaintiff. Id.