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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

ROBERT NOVAK, d/b/a/ Pets Warehouse.com, Plaintiff v. ACTIVE WINDOW PRODUCTIONS, INC.,et al., Defendants.

Case No: CV 013566

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AFFIDAVIT OF R. DANIEL RESLER, Ph D.

R. Daniel Resler, Ph. D. states as follows:

1. My name is R. Daniel Resler. I am now, and at all times referred to herein I was, an associate professor in the Department of Mathematical Sciences, Virginia Commonwealth University, located in Richmond Virginia.

2. I am making this Affidavit in connection with the lawsuit styled Robert Novak d/b/a Petswarehouse.com v. Active Window Productions, Inc. et al, Civil Action No. CV 013566, which is currently pending in the United States District Court for the Eastern District of New York. I am the defendant named "Dan Resler" in that action.

3. I am now, and at all times referred to herein I was, a resident of the Commonwealth of Virginia. I reside at 3433 Patterson Avenue in Richmond, Virginia.

4. I own no real property in New York. I have no business interests in New York. I have not contracted to supply any goods or services there. I derive no income from goods sold in New York or services rendered there.

5. I do not regularly do or solicit any business in the state of New York. I earn my livelihood as a college professor, teaching in Richmond, Virginia. I earn no income from business interests that are interstate or international in nature.

6. I occasionally travel to or through New York, but I have not traveled there for any purpose related to this litigation.

7. As a hobby, I maintain an aquarium. In conjunction with my interest in aquariums and aquatic plants, I participate in an electronic forum, the subject of which is aquatic plants. Participants to this electronic bulletin board exchange information on a variety of subjects relating to aquatic plants. (An index of the various discussions is located at the URL - http://www.actwin.com/fish/aquatic-plants/index.php).

8. Prior to April 10, 2001, I became aware of a web page at the URL www.petswarehouse.com which advertised the sale of, among other things, aquatic plants. I believe that I became aware of this site by searching the World Wide Web for sites related to aquatic plants.

9. On April 10, 2001, I used the petswarehouse.com web page to order some aquatic plants. The computer I used for this purpose is located in Richmond, Virginia. The ordering process allowed me to select the plants I wanted, prompted me to enter shipping destination information and credit card information for payment, and then presented me with an invoice before confirming my order. Nothing printed on the web page at the time my order was prepared indicated that there would be increased shipping costs for the plants I ordered. Additionally, the web page boasted that the company directly imported their plants, but that page did not indicate any other information about shipping. Although I was aware that the address on the web page was located in New York, the address of the business was not significant in my decision. I have also purchased aquatic plants from businesses in other locations, including from Arizona Aquatics in Arizona.

10. The invoice that was prepared for my review indicated that I would pay $7.50 for shipping for the plants. I confirmed the order and the company immediately emailed a copy of the invoice to me for my records. The document attached as Exhibit A to this Affidavit is the invoice I printed.

11. I waited several days for the plants to arrive and when they did not come, I began calling petswarehouse.com at the telephone number I found on their web page. I called several times before the plants were shipped. On two occasions, they promised me during the telephone call that the plants would be shipped on a certain date and then the plants were not delivered. The clerks I spoke with were rude and attempted to get me off of the phone as quickly as possible.

12. The plants arrived on May 15th. Included with the shipment was a copy of the computer-generated invoice that I had seen when I ordered the plants. However, the shipment costs of $7.50 was lined out in pen and ink and written in was a shipping charge of $18.50. This changed the total amount of my order from $37.45 to $48.45. When I saw this, I immediately called petswarehouse.com to complain about the increased charge and demand a refund of it. During that conversation, I pointed out to the customer service representative that the company's order page did not indicate that additional shipping charges might be applied. The company's representative acknowledged that the company knew of the problem. They refused to refund that amount and my credit card has been charged the higher price.

13. On May 15th, I posted a message to the aquatic plant bulletin board describing my experience with petswarehouse.com and advising others not to purchase from them. After that message, several other participants posted messages indicating similar experiences with the business. I responded to some of these messages. All of the messages I prepared and posted were prepared on computers in Richmond, Virginia.

14. I had no intention of directing any of my comments to anyone in New York. I knew, however, that persons interested in aquatic plants and participating in the forum might access the messages from any location and that persons searching the web might find my comments.

15. After this litigation was begun, in July of this year, I re-visited the petswarehouse.com web page. I noted that the page listing aquatic plants now indicates "(FOB - Additional Freight)" after each of the entries. That comment was not present when I made my order.

16. I also reviewed my transaction on the petswarehouse.com. The web site regenerated the invoice that I had seen. With the exception of the comment "(FOB - Additional Freight)" after each of the plant descriptions, the invoice generated appeared the same. Once again, the invoice displayed $7.50 as the amount for shipping. I printed off that invoice and it is attached to this Affidavit as Exhibit B.

17. At that same time, I began reviewing other reports that the petswarehouse.com web page would display to persons viewing the site. By changing the report number in the URL, I was able to display a report of my transaction, showing my name, address, phone number, email, and credit card information unencrypted. I printed a copy of this report for my records. It is attached to this Affidavit as Exhibit C.

18. In contradiction to the above, Petswarehouse.com assures credit card users that "It promises to protect your personal information. Any page at Petswarehouse.com that asks you for personal information is highly secure." Petswarehouse.com's store policy is attached as Exhibit D. (See ¶ 4, "Is It Safe To Use My Credit Card?")

I declare under penalty of perjury that the foregoing is true and correct. Executed on _____________, 2001.

R. Daniel Resler, Ph.D.

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Affiant