(Diversity Jurisdiction; Defamation; False Light Invasion Of Privacy; Intentional Infliction Of Emotional Distress and Harassment; Compensatory And Punitive Damages; Injunctive Relief)

1. Robert Novak, d/b/a Petswarehouse.com, brings this diversity action for defamation, harassment and false light invasion of privacy against Active Window Publications, Inc., Mark Rosenstein, Cynthia S. Powers, Dan Resler, Jared Weinberger, Thomas Barr, "John Doe", and "Mary Roe" jointly and severally, seeking compensatory and punitive damages and injunctive relief.

2. Robert Novak is bringing this action to protect his rights in the trademark Pets Warehouse and the internet business Petswarehouse.com against the defendant's libelous and defamatory statement as published and disseminated via the internet, more particularly the interactive website Actwin.com and the dilution of plaintiff's mark by said defamatory statements and actions.

3. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. ?1332, in that this case presents a controversy between citizens of different states in which the amount in controversy exceeds Seventy-Five Thousand Dollars ($75,000.00). Venue is proper in this judicial district pursuant to 28 U.S.C. Section 1391(a)(2) & (3). This Court has personal jurisdiction over the defendants under the New York State Long Arm Statute, Sections 302(a)(1) and 302(a)(3)(i) of the CPLR.

4. Plaintiff Robert Novak is an individual with his principal office and place of business at 1550 Sunrise Highway, Copiague, New York doing business as Petswarehouse.com, an Internet pets and pet supplier which among other items sells aquatic plants.

5. Upon information and belief, Defendant, Active Window Productions, Inc. is a domestic corporation organized under the laws of Massachusetts with its principal place of business in Cambridge, Massachusetts. The defendant corporation owns, operates, disseminates and publishes the website actwin.com, a fish and aquatic plant information service.

6. Upon information and belief, Defendant Mark Rosenstein resides in Massachusetts is the editor and/or officer of Active Window Publications, Inc. Operating the website fins, within actwin.com.

7. Upon information and belief, Defendant Cynthia S. Powers resides in Massachusetts and is the owner, officer and publisher of the Aquatic Plants Digest (APD) a subscriber based mailing list operated within to domain of Actwin.com/fish/aquatic-plants/index.php and uses the Internet screen name cyn@metronet.com .

8. Upon information and belief, Defendant Dan Resler resides in Richmond, Virginia and uses the Internet screen name resler@liberty.mas.vcu.edu .

9. Upon information and belief, Defendant Jared Weinberger resides in Durham, North Carolina and uses the Internet screen name jared@brainyday.com and owns and operates a website.

10. Upon information and belief, Defendant Thomas Barr resides in San Rafael, California and uses the Internet screen name of tcbiii@earthlink net.

11. Upon information and belief, Defendant Sean Carney resides in Weslaco, Texas and uses the Internet screen name scrimman@ hiline.net

12. Upon information and belief, at all times hereinafter mentioned, defendants "John Doe" and "Mary Roe" are subscribers to the Aquatic Plant Digest operating within Actwin's web site and have sent e-mail messages to Actwin.com containing negative and derogatory statements about the plaintiffs.

13. At all times relevant to the allegations of this Complaint, persons obtained access to the Internet through many different networks linked directly to the Internet, including but not limited to those networks operated by employers, schools, community organizations, libraries, and small commercial establishments.

14. At all times relevant to the allegations of this Complaint, over one hundred and fifty million computers in the United States were linked directly to the Internet.

15. At all times relevant to the allegations of this Complaint, persons accessed information on the Internet via newsgroups, bulletin boards, e-mail, and subscriber based news groups mail lists and chat rooms.

16. At all times relevant to the allegations of this Complaint, information posted in newsgroups, bulletin boards, subscribed mail lists and chat rooms was available to persons subscribing to such services as well as to persons accessing such services on an ad hoc basis.

17. At all times relevant to the allegations of this Complaint, the "World Wide Web" (hereinafter the "Web" ) consists of a vast number of documents stored in different computers all over the United States and the world containing information formatted according to Web publishing standards.

18. At all times relevant to the allegations of this Complaint, the information on the Web was located at millions of separate " Web sites " that displayed content provided by particular persons or organizations.

19. At all times relevant to the allegations of this Complaint, Web sites usually contain a " home page, " which displays basic information about the publisher of the Web site and the information that publisher offered.

20. At all times relevant to the allegations of this Complaint, each Web site and its originating computer were connected to the Internet by means of protocols that permitted each Web site to become part of a single body of information accessible by all Web visitors through search engines and search directories.

21. At all times relevant to the allegations of this Complaint, persons viewed a Web site through "browser" software, which allowed the persons to display, download, and print out information from the Web.

22. At all times relevant to the allegations of this Complaint, every Web site had an address by which it was accessed.

23. At all times relevant to the allegations of this Complaint, persons accessed a given Web site directly by typing the Web site name and going directly to that site.

24. At all times relevant to the allegations of this Complaint, persons who did not know the address or specific name of a given Web site, or who conducted generalized searches, accessed Web sites by means of a "search engine/directory," which found the Web sites by using a word or strings of words to locate those sites.

25. At all times relevant to the allegations of this Complaint, persons also " surfed " the Web by " linking" from one Web site to another, which they did by clicking on to " links, " which were segments of text or images in one Web site that referred to another Web site.

26. At all times relevant to the allegations of this Complaint, information accessible on the Internet through the various methods described in this Complaint was taken from the location at which the information originally was accessed and published to the world wide web.

27. At all times relevant to the allegations of this Complaint, information accessible on the Internet through the various methods described in this Complaint was downloaded and printed in "hard copy," i.e., on paper.

28. At all times relevant to the allegations of this Complaint, persons communicated via the Internet directly to one or more other persons by transmitting messages to such other persons through electronic mail, also known as " e-mail. "

29. At all times relevant to the allegations of this Complaint, more than one hundred and fifty million persons had access to the Internet, and used that access.

30. On May 15, 2001 defendant Dan Resler sent an e-mail message to defendant Active Window Publications, Inc. at it's website Aquatic-Plants(~actwin.com knowing that that message would be posted to the news groups website to be seen by anyone coming to that website and knowing that his statements would be e-mailed to all subscribers of that plant digest and further harassed plaintiff knowing that other search engines/indexes, news groups would automatically pick up, index and disseminate that message to numerous websites, news groups and chat rooms. Defendant Resler's e-mail made the following statements:

"Thinking of buying plants from Pet Warehouse? Don't. What is crappy is their service! And they're maybe even A bit dishonest."

31. Defendant Resler's e-mail was responded to by over thirty (30) individual e-mails sent to Aquatic-Plants@actwin.com during the period from May 15, 2001 through May 23, 2001 accusing the plaintiff of:

"as a source for purchasing plants, they do not have a good reputation" (Defendant Jared Weinberger-May 21, 2001)

"But you don't have to take my word as the last word on their horrible service. Feeling lucky? Go ahead - try them out yourselves. After all, it's only your time and money, right?" (Defendant Dan Resler-May 18, 2001)

"They claim to fill 90% of the orders. Well I can tell everyone it's more like 20%. Or less. If at all." (Defendant Thomas BarrMay 17, 2001)

"G[E]iven the continual flow of negative comments about PetSwarehouse that I've read for nearly two years on this list, I've decided to add a warning (and figure this is better than simply removing them." (Defendant WeinbergerMay 18, 2001)

"Remember petSWEARhouse, buy their plants and you'll be swearing!" (May 22, 2001)

"I believe they call that deceptive advertising. Or bait-and-switch. Take your pick." (Defendant Sean Carney-May 16, 2001)

32. Each of the thirty (30) plus defamatory e-mails were received by defendants Rosenstein and Powers and posted/published on their web site at actwin.com, subject to being viewed by millions of Internet users. Their web site is subscribed to by an unknown number of aquatic plant hobbyists. These subscribers received a daily digest of all new messages and then e-mailed by said defendants Actwin.com to it's members/subscribers of their Aquatic Plants Digest.

33. The publication and circulation of the Statements/messages by defendants concerning the plaintiffs were false, factually and knowingly false and defamatory.

34. The Statements are libelous per se since they falsely accuse the plaintiff of bad business practice, fraud, dishonesty and bad customer service.

35. By reason of the publication and circulation of the Statements/messages, the plaintiff has been publicly disgraced and humiliated, and has been injured in its good name and reputation in the business community in which it's stores are located and throughout the entire county and internationally in which the publication and circulation of the Statements/messages occurred. The publication of the Statements/messages have placed the plaintiff, Robert Novak and the company that bears the mark Pets Warehouse in a false light in the public eye and constitutes an invasion of privacy.

36. Wherefore plaintiff Robert Novak demands judgment against defendants Mark Rosenstein, Cynthia S. Powers, Dan Resler, Jared Weinberger, Thomas Barr, Sean Carney and "John Doe" and "Mary Roe", jointly and severally and individually, in the amount of One Million ($1,000,000.00) Dollars.

37. Plaintiff Robert Novak restates the allegations of all the preceding paragraphs of this Complaint, and incorporates them herein.

38. The publication and circulation of the Statements/messages by the defendants Active Window Publications, Inc., Mark Rosenstein and Cynthia S. Powers concerning the plaintiff were false and defamatory.

39. The Statements/messages are libelous per se since they falsely accuse the plaintiff's company of fraudulent acts and accuse Pets Warehouse and the plaintiff of conducting a disreputable and dishonest on-line business.

40. By reason of the publication and circulation of the Statements/messages the plaintiff has been publicly disgraced and humiliated, and has been injured in his good name and reputation ion the community in which he resides and does business and throughout the entire country in which the publication and circulation of he Statements/messages occurred.

41. At the time defendant published the defamatory matter, namely the Statements/messages, defendant knew, or had reason to know, that the statements were false, or failed to take the proper steps to ascertain their accuracy and, instead, published the Statements/messages with reckless disregard of whether the Statements/messages were true or not.

42. In publishing and circulating the Statements/messages and refusing to allow the plaintiff to refute same, defendant acted with malice, and an intent to injure the plaintiffs' business and reputation.

43. The statements pertaining to plaintiffs' business practices and the quality of the goods sold by the plaintiff are false and were known, or defendants had reason to know, to be false by defendants when the statements/messages were published and circulated. As a result of the foregoing, plaintiff has sustained severe damage to his god name and reputation and to his business interests, in the excess of $5 Million Dollars, plus interest.

44. Plaintiff Robert Novak restates the allegations of all the preceding paragraphs of this Complaint, and incorporates them herein.

45. The acts and omissions of defendants, jointly and severally, in publishing false information about plaintiff Robert Novak with knowledge that the information was false, or with reckless disregard for whether it was false, constituted extreme and outrageous conduct.

46. As a direct and proximate result of the acts and omissions of defendants, jointly and severally, plaintiff, Robert Novak suffered severe emotional distress, including but not limited to headaches, nausea, nervousness, anxiety, embarrassment, humiliation, and mental distress.

51. Wherefore, plaintiff Robert Novak demands judgment against defendants, jointly and severally, in the form of damages in the amount of One Dollar ($1.00) in nominal damages, Ten Million Dollars ($10,000,000.00) in compensatory damages, and Five Million Dollars ($5,000,000.00) in punitive damages; and in the form of an award to plaintiff Robert Novak of his costs in this action and such further relief as justice requires.

WHEREFORE, Plaintiff demands judgment on Claim One, Claim Two and Claim Three as stated with such other and further relief as the Court deems just and proper, including an award to plaintiff of any and all reasonable attorneys fees, together with the costs and disbursements incurred in connection with this action.

Dated: Copiague, New York

May 30, 2001

Index Number: CV 01 3566

ROBERT NOVAK
1550 SUNRISE HIGHWAY
COPIAGUE, NEW YORK 11726

1-631-789-5400