BurksPetition

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Plaintiffs,

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CAUSE NO. _l Z - - _ - _ O _ 2 _ 1 _ 1 _ O

ALAN BURKS and JACKIE HLASTAN,

vs.

PLENTYOFFISH MEDIA, INC. d/b/a

PLENTYOFFISH.COM, And TRUE

BEGINNINGS, LLC d/b/a TRUE.COM

Defendant. JUDICIAL DISTRICT COURT---PLAINTIFFS' ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, ALAN BURKS and JACKIE HLASTAN (hereinafter "Plaintiffs"), and

file this Original Petition against Plentyoffish Media, Inc., d/b/a Plentyoffish.com (hereinafter

"Plentyoffish") and True Beginnings, LLC d/b/a True.com ("hereinafter "True").

Plaintiffs Original PetitionR:U\0288\61105\SubPldgs\State\Petition.docx

Page I

LEVEL III DISCOVERY CONTROL PLAN

1. Discovery is intended to be conducted under Level III pursuant to Texas Rule of Civil

Procedure 190.4. and Plaintiff hereby moves for this Court to enter a Level III discovery plan.

PARTIES

2. ALAN BURKS ("~Burks") is an individual residing in Dallas County, Texas.

3. JACKIE HLASTAN (,'Hlastantl) is an individual residing in Collin County, Texas.

4. Plentyoffish Media, Inc. ("Plentyoffish") is a Canadian corporation conducting

business in the United States and Dallas County, Texas.

5. True Beginnings, LLC, doing business under the name True.com ("True") is a Texas

limited liability company conducting business in Dallas County, Texas.



Plaintiff's Original PetitionR:\2\0288\6 J I051S11bPldgslState\Petition.docx

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SERVICE

6. Plentyoffish may be served by serving the citation and a copy of this Petition to

Plentyoffish at:

Plentyoffish Media, Inc.

c/o Markus Frind, CEO

2625 555 W Hastings St,

Vancouver, BC V6B 4N5

-or-

#1239, 565 Yukon St,

Burnaby, BC V6G 8N2, Canada

or at any other location where it may be legally served.

7. True may be served by serving the citation and a copy of this Petition to

True at:

True Beginnings, LLC

Through its Registered Agent Curtis R. Swinson

12222 Merit Drive, Suite 1000

Dallas, TX 75251

or at any other location where it may be legally served.

JURISDICTION AND VENUE

8. Plaintiffs seek damages and equitable relief for torts committed by True and

Plentyoffish (True and Plentyoffish hereinafter collectively "Defendants") in Dallas County,

Texas. Defendants' actions in Dallas County, Texas are the subject of this lawsuit. Further,

True's principal place of business is in Dallas County, Texas. Plaintiffs' damages are in excess of

the minimum jurisdictional limit of this court. Therefore, jurisdiction and venue are proper in

this court.



FACTS

9. Plaintiffs are the natural parents of Peter Burks ("Lt. Burks"), who was born in

Atlanta, Georgia. L1.Burks grew up in Dallas and graduated from Trinity Christian Academy in

Addison in 1999. He received a BA in international studies from Texas A&M in 2003.

10. During his time at Texas A&M, Lt. Burks served as the president of Pi Kappa Phi

fraternity and was a sportswriter for The Battalion. After graduating, he worked for the Dallas

Cowboys, the Dallas Desperadoes and FeDallas.

11. In April 2006, L1.Burks proudly answered the call to service by joining the U.S.

Army where he received honors in his training courses. His fellow soldiers considered him a

fearless leader and a person of integrity. Lt. Burks had the ability to light up any room with his

glowing personality and quick sense of humor, and lived life with a passion. L1.Burks served in

the Second Stryker Cavalry Regiment as a troop leader, and made a lasting, positive impression

in his short time with his platoon. He was awarded the Bronze Star for courage under fire.

Plaintiff's Original PetitionR:\2\0288\6110S\SubPldgs\Statc\Petition.doc"

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12. On November 14, 2007, while leading his men back to their base at the end of

patrol in Baghdad, a massive-Iranian-made bomb blew up Lt. Burks' vehicle. Standing upright in

the hatch to direct his unit, L1.Burks was struck in the head by shrapnel and was killed. Two of

his soldiers were also wounded. Plaintiffs inherited the ownership interest in their son's,

L1.Burks', name, voice, signature, photograph and likeness.

13. Attempting to exploit Lt. Burks' good looks and strong jaw image for their own

financial gain, Defendants used his photo on their dating websites in multiple advertisements.

One ad included a photograph of L1.Burks with a caption reading "Military Man Searching For

Love" "Females Join Now Freet"

14. Another ad used L1.Burks' likeness as a draw, and exhorts:



"Soldiers WANT

YOU!"

Join HERE Now!"

15. Defendants represent their dating sites are legitimate and safe places to meet real

people who are genuine, sincere and legitimate. Instead they resort to false advertising.

"True is the only online dating service and relationship site that

conducts criminal background screenings in the U.S. and Single

Certifications. "

16. True's website brags on the fact that:

True also claims to be "the only single dating service that screens for marrieds and felons." True

claims that it facilitates "safer, smarter, more satisfying relationships." True's site even states

"Warning: married people and criminals will be prosecuted."

17. Apparently Defendants do not screen for the deceased and use photos of people

without permission, including a soldier who died in the line of duty, to fraudulently attract

unsuspecting and unwary singles onto their websites. How many other photos of the deceased or

fraudulent postings are Defendants running tomislead the dating public?

18. Given True's fraudulent ads, it is doubtful that it screens for felons and marrieds

like it claims. Plaintiffs intend to investigate whether True is telling other lies to the public and

making other misrepresentations.

19. On its website, Plentyoffish states that "anyone who is able to commit identity

theft can also falsify a dating profile." At the same time Plentyoffish is warning consumers

about false dating profiles, Plentyoffish is running a false ad to attract unsuspecting singles to its

website by using a dead person's photo.

20. Defendants' misappropriation of Lt. Burks' likeness and/or name resulted in

unfair, improper and excessive commercial exploitation of the value ofLt. Burks' likeness and/or

Plaintiffs Original PetitionR:\2\0288\6110S\SubPldgs\State\Petition.doCx

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FIRST CAUSE OF ACTION:

MISAPPROPRIATION OF LT. BURKS' LIKENESS

name so as to result in a reduction of Plaintiffs' property rights in Lt. Burks' likeness andlor name

due to Defendants' use of same.

21. By and through the above-referenced false postings and communications,

Defendants not only confused and misled consumers, but also caused serious harm and damages

to Plaintiff. Making matters worse, Defendants have made such false and/or misleading

statements on their websites, which could be viewed throughout the United States and, indeed,

across the world.

22. All conditions precedent to all relief being sought by Plaintiffs in the above-

referenced lawsuit have been met, performed and occurred andlor have been waived.

23. Pursuant to Texas State Law, Plaintiffs plead a cause of action against Defendants

for misappropriation of Lt. Burks' likeness. The allegations contained in all of the paragraphs of this

Petition are hereby reaverredand realleged for all purposes, and incorporated herein with the same

force and effect as set forth verbatim herein.

24. Defendants misappropriated Lt. Burks' likeness for the value associated with it

rather than incidentally or for a newsworthy reason, Lt. Burks can be identified from Defendants'

publication; and Defendants commercially benefitted or were otherwise advantaged in some way

by Defendants' publication of Lt. Burks' likeness or name.

25. As a proximate result of Defendants' actions, Plaintiffs have been damaged in

excess of the minimum jurisdictional limit of this Court.

Plaintiff's Original PetitionR:\2\0288\61105\SubPldgs\State\Pet i t ion.doc){

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26. Pursuant to Texas State Law, Plaintiffs plead a cause of action against Defendants

SECOND CAUSE OF ACTION: VIOLATION OF TEXAS PROPERTY CODE

for violation of the Texas Property Code. The allegations contained in all of the paragraphs of this

Petition are hereby reaverredand reaUeged for all purposes, and incorporated herein with the same

THIRD CAUSE OF ACTION: INTRUSION ON SECLUSION

force and effect as set forth verbatim herein.

27. The Texas Property Code regulates the use of a dead person's name, VOIce,

signature, photograph or likeness and creates a cause of action for unauthorized use of same.

Defendants' unauthorized useofLt. Burks likeness violated the Texas Property Code.


excess of the minimum jurisdictional limit of this Court.

29. Pursuant to Texas state law Plaintiffs plead a cause of action against Defendants

for Intrusion on Seclusion. The allegations contained in all of the paragraphs of this Petition are

hereby reaverred and realleged for all purposes, and incorporated herein with the same force and

effect as set forth verbatim herein.

30. Defendants intentionally intruded on Plaintiffs' solitude, seclusion or private

affairs. The intrusion would be highly offensive to a reasonably person. Plaintiffs suffered an

injury as result of the Defendants' intrusion


excess of the minimum jurisdictional limit of this Court Further, Defendants' acts were done

with malice entitling Plaintiffs to exemplary damages.

Plaintiffs Original PetitionR:I2\0288\61105\SubPldgs\State\Petition·90cx

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JURY DEMAND

PUNITIVE DAMAGES

32. As a consequence of the foregoing clear and convincing facts and the willful and

malicious nature of the wrongs committed against the Plaintiffs, which damaged Plaintiffs,

Plaintiffs are entitled to exemplary damages in excess of the minimum jurisdictional limit of this

Court.

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33. A jury trial is hereby demanded.

REPORTER DEMAND

34. The Official Court Reporter for this Court is hereby demanded to perform all the

duties of the office, as set forth in Section 52.046 of the Government Code of the State of Texas.

and as set forth in Rule 13 of the Rules of Appellate Procedure, including reporting all testimony

and trial proceedings, voir dire examinations and jury arguments.

RESERVATION OF RIGHTS

35. The right to .bring additional causes of action against Defendants and others, and

to amend this pleading as necessary is full reserved.

REQUEST FOR DISCLOSURE

36. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, you are requested to

disclose, within the time provided by the Rules, the information described in Rule 194.2 (a)-(l) of

the Texas Rules of Civil Procedure.

Plaintiffs Original PetitionR:\2\0288\61 IOS\SubPldgs\State\Peti t ion.docx



PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to

appear and to answer herein and that upon final hearing, the court enter judgment in favor of

Plaintiff against Defendants, jointly and severally, in an amount in excess of the minimum

jurisdictional limit of this Court, for compensatory damages, punitive damages, reasonable

attorneys' fees, reasonable paralegal fees, costs of court and pre- and post-judgment interest at the

highest rate allowed by law, find revoking any certificate authorizing Defendants to do business in

Texas if any judgment rendered in this case has not been satisfied within three (3) months from the

date of filing said final judgment, and for such other and further relief, general or special, at law or

in equity, to which Plaintiffs may show Plaintiffs to bejustly entitled.

Respectfully submitted,

Plaintiffs Original PetitionR:\2\0288\6110S\SubPldgs\State\Pct i t ion.docx

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ROGGE DUNNState Bar No. 06249500

GREGORY M. CLIFT

State BarNo. 00795835

CLOUSE DUNN LLP1201 Elm Street, Suite 5200

Dallas, Texas 75270-2142

Telephone: (214) 220-3888

Facsimile: (214) 220-3833

ATTORNEYS FOR PLAINTIFFS

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BurksPetition