IN THE UNITED STATES COURT FOR THE EASTERN DISTRICT

IN THE UNITED STATES COURT FOR THE
EASTERN DISTRICT OF PENNSYVLANIA
GORDON ROY PARKER,
Plaintiff
v.
JACQUELINE FAYE GOLDHAGEN,
Defendant
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: Case No: 15-cv-3304-TON
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PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS
Plaintiff Gordon Roy Parker, in the above-styled action, submits his response to the instant
motion, and in support thereof, sets forth and avers the following.
Response To Defense Averments
1.
Denied. By way of further answer, Plaintiff's pleadings are anything but "rambling,"
and set forth clear causes of action based on Defendant's seller's remorse of an adultentertainment contract she elected not to honor, and the existence of which, and her past, she
wants wiped from the internet, by censoring Plaintiff. Plaintiff has filed a motion to strike.
2.
Denied. The averment is conclusory; to the extent it is factual, it is denied.
3.
Denied. The averment is conclusory; to the extent it is factual, it is denied.
4.
Denied. This averment requires no response; to the extent it does, it is denied.
5.
Admitted. Defendant resides and is domiciled in California.
6.
Denied. Plaintiff's characterization of Defendant was as a "rising star actress." His
perception of Defendant tells a bit of a different story.
7.
Denied.1
8.
Admitted. Plaintiff discovered Defendant via her YouTube hypnosis demo video.
9.
Denied. By way of further answer:
a.
Not just Plaintiff, but the United States Chess Federation (USCF) "fancies" him
an "Expert" at chess, for his peak rating of 2000 gave him that official title.
b.
Plaintiff is "MrMiniatures," whose peak ICC one-minute rating is 1904.
Draw By Perpetual Check After 37. Qc8+
(See Exhibit A For Video Of Full Game)
1
While Plaintiff has characterized Defendant as a hypnotist/life-coach, the conclusory legal arguments and
extraneous material in footnote 1 are denied, whether conclusory or factual. Plaintiff's other cases have no
bearing on this one, though he has addressed these issues in his Motion For Leave To Amend Motion To Disqualify.
2
c.
One-minute chess requires the player to complete an entire game, against the
strongest, fastest chessplayers in the world, in one minute or less of total thinking time. Plaintiff
routinely plays sixty or more nearly-perfect moves in that one minute, with a peak rating that
puts him within the top quarter of players in one of the strongest global rating pools in the world.
d.
In the course of gathering evidence for this pleading, in the form of the free
hypnosis induction broadcast by Defendant over Periscope on August 21, 2015, Plaintiff decided
to use his stream-grabbing software to record him while playing one-minute "bullet" chess on the
Internet Chess Club's (ICC's) server. While this was quickly aborted due to the software eating
time off Plaintiff's move clock, he did manage to record this very typical game, a "fighting draw"
against a player rated 1754, in a "shark tank" where even Grandmasters have difficulty achieving
a 2000 rating. The full video of this game, along with the full video of Defendant's Periscope
hypnosis induction, is attached hereto as Exhibit A and incorporated by reference as if fully
stated verbatim herein.
c.
Plaintiff's 1904 peak rating, and his 1650-1700 "cruising rating" (normal range)
are more than 300 Elo points higher than when he began training up to fourteen hours a day back
in February. Even if this rate of increase were to slow to one-quarter of its present rate, Plaintiff
would hit 2800 in six years, enough to make him one of the top five players in the world.
10. Denied. The averment is conclusory, and beyond the scope of a Rule 12/56 motion; to
the extent it is factual, and a response is required, it is denied. By way of further answer:
a.
Characterizing Plaintiff's quite normal offer on CustomsClub as "lurid fetish
fantasies" clearly demonstrates Defendant's sellers remorse, once she realized she could not
divert payment to PayPal, after the CustomsClub ad had served its purpose of fetching a much
3
higher price. With PayPal, who bans adult/fetish transactions Defendant could avoid honoring
the original agreement (she omitted the submission where Plaintiff asked for a "sexy" video).
b.
Defendant's aversion to honoring the original agreement made mitigation
impossible, since, in addition to Plaintiff no longer trusting her (particularly after being defamed
by her), she obviously never intended to make the video for which she was contracted.
c.
It is clear from Defendant's marketing that she is "dog-whistling" to the
"hypnofetish" audience, in order to whet its appetite (as she did Plaintiff's), in a classic bait-andswitch:
1)
On August 20, 2015, Defendant posted the following to her Facebook page:
Retrieved August 20, 2015 at 8:14 p.m.
4
2)
"I'll hypnotize you to think there was [a pole dance]," in response to a
male fan's "lurid fetish fantasies" (of combining hypnosis and sexuality).
3)
As Defendant's free Periscope session of August 21, 2015 indicates, her
induction (the video is attached as Exhibit A) is clearly and intentionally sexualized, particularly
the "phone sex" vocal delivery, in a manner similar to what Marilyn Monroe did to Happy
Birthday when she sang it for Mr. President:
4)
Defendant's Model Mayhem page not only says that Defendant is
available for nude photo shoots, but also shows dishonesty on her part, as the page below says
she is twenty-eight, when her real age is thirty-four. For all her proselytizing about being an
innocent victim who was truthful with Plaintiff, it is clear Defendant has no problems with lying
about her age when doing so suits her, and helps her to market her "brand," just like lying about
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her involvement with Customs Club. Moreover, this seems to be a tacit admission of the role
age, rather than Plaintiff, may be playing in any purported loss of income for Defendant.
11. Admitted. Paragraph 10 of the Amended Complaint speaks for itself.
12. Denied. This averment cannot be taken as true in a Rule 12/56 motion, though it is
denied. By way of further answer (including to footnote 2), Defendant used CustomsClub as
"dog whistling" marketing to the hypnofetish, to secure a rate of $1,000.00 for a video, and then,
with no intention of ever honoring that agreement, redirecting the client to PayPal, to cover her
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false-advertising tracks. This was clearly a bait-and-switch. Defendant's main objection was not
that she was not using CustomsClub to advertise, but that Plaintiff required her to accept
payment through them, thus eliminating the plausible deniability that comes with PayPal.
13. Denied. This averment cannot be taken as true in a Rule 12/56 motion, though it is
denied. Defendant was a practicing hypnotist in California for three years prior to opening her
own practice. Of course, she accepted payment via CustomsClub after setting up shop as a
hypnotherapist, thinking she could divert the payment to PayPal, and turning against Plaintiff
when he would not play along, and when he began letting the world know what she was doing.
14. Denied. The averment is conclusory. To the extent it is factual, it is denied.
15. Denied. The averment is conclusory. To the extent it is factual, it is denied. By way
of further answer, Plaintiff was active on the site and ready to pay the $1,000.00 once Defendant
wrote back to let him know which offer he should pay, when instead she suggested PayPal.
16. Denied. The averment is conclusory; to the extent it is factual, it is denied. By way
of further answer, Defendant knew exactly what she was doing, and planned to divert the
massively inflated payment for a CustomsClub video to PayPal, where, save for the $1,000.00
price, it would appear like a "vanilla" hypnotherapy" video. Given Defendant's incredibly
aggressive litigation against Plaintiff, it defies credulity that she would have been so lax with
CustomsClub supposedly abusing her right to publicity, with so much at stake. Unable to sue
them because she has no case, she is taking out her regrets on Plaintiff.
17-18. Denied. The averments (including footnote 5) are conclusory. To the extent they
are factual, they are denied. To begin with, Plaintiff called Defendant a fetish model, not a
fetish hypnotist. Defendant also perpetrated a fraud upon Plaintiff by using CustomsClub to
give one impression, and then switch to PayPal, hoping Plaintiff would not object. Indeed, in his
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motion for leave to amend his motion to disqualify defense counsel, Plaintiff attached an e-mail
where defense counsel himself stated that "all [his client] was trying to do was honor your
request as a customer." If her own counsel called Plaintiff a customer, why shouldn't this court?
19. Denied. The averment (including footnote 6) is conclusory; to the extent it is factual,
it is denied, and is well beyond the scope of Rule 12/56. The sole purpose of the averment is to
harass and embarrass Plaintiff. By way of further answer:
a.
Defendant is attempting to whitewash her past as a fetish model, or her current,
plausibly deniable dog-whistling to the hypnofetish audience, including knowingly using
CustomsClub to inflate her prices and mislead her customer base, while pretending her likeness
was used by mistake, all the while suing Plaintiff and not them. Defendant then makes
ridiculous leaps to claim that Plaintiff's current mental state is incompetent, and that he should
somehow have included references to this in his Yelp! review (anyone who wanted to learn this
could have searched Plaintiff's name or image). What this court is witnessing is Defendant,
through counsel, carrying out her extortionist threats against Plaintiff, when he refused to be
silent.
b.
In the verbose footnote #5 to this averment, Defendant -- whose counsel's official
website is greatlawyers.com, and who has equated the mere mention of her name with
cyberstalking -- imputed "delusions of grandeur" upon Plaintiff, and claimed that "Plaintiff posed
as an expert on hypnosis," ignoring Plaintiff's own professional experience in the field:
1)
Plaintiff learned hypnosis at age eight, through a fourth-grade Yoga class,
and has been diligently studying and practicing it ever since, for almost literally his entire life.
2)
Plaintiff's Hypnodomme Showcase Yahoo! group has 3,217 members,
having peaked at 5,000+. Over two hundred of these members were paying customers:
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https://groups.yahoo.com/neo/groups/hypnodomme_showcase/info
Retrieved August 15, 2015 at 6:34 a.m.
3)
Hellen I and Hellen II, which Plaintiff produced and scripted in 2002,
grossed $15,000.00 for a single day of recording before PayPal policies prohibited the sale of
adult hypnosis recordings (one of the reasons Plaintiff terminated Defendant).
4)
In 2001, Plaintiff scripted and produced the original Anonymistress audio
recording, a full-length recording which Plaintiff made free to the public. Anonymistress, with
whom Plaintiff "exchanged" telephone hypnosis sessions for three years, went on to earn a nice
living through the dozens of subsequent audios she released, before retiring in 2007.
5)
In 2011, Plaintiff scripted and produced MegaSleep, an audio which was
profitable (from just a YouTube sample and link to Plaintiff's site) before it was retired.
A true
and correct copy of the retail version of MegaSleep (since pulled) is part of Exhibit A, and is
Plaintiff's official "hypnosis sample."
6)
Plaintiff currently reviews female hypnotists on his own website forum.
The market has become increasingly flooded with untrained "sexy" hypnotists attempting to cash
in on the fetish. An unsuspecting consumer can waste hundreds or thousands of dollars on
second-rate work, or wind up satisfied but not knowing of even better work which has come to
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the attention of Plaintiff. As it is, Plaintiff's reviews have consistently noted Defendant's talent
for inducing hypnosis.
20. Denied. The averment is conclusory; to the extent it is factual, it is denied. By way
of further answer:
a.
Its sole purpose is to defame, embarrass, and humiliate Plaintiff, as evidenced by
the direct link to the ED page, ensuring it will turn up even more online. The site "chronicles"
nothing, but is nothing but lies and hearsay. Even if true, it is irrelevant, scandalous, prejudicial,
and Plaintiff has moved to have it stricken from the record. Defendant's rebuttal that she is "not
a fettish hypnotist" is inaccurate at best, and a flat-out lie at worst. She clearly markets to the
hypnofetish audience.
b.
Denied. The averment is conclusory; to the extent it is conclusory, it is denied.
By way of further answer, if Defendant has lost any business as she claims, that would be her
doing, and certainly not Plaintiff's, who Defendant herself has claimed is not taken seriously by
anyone on the internet. Defendant has recently claimed that a) she is a "board certified
hypnotist," b) that she can use hypnosis to help clients make money, and c) that she used
"positive energy" to help save her dog's life after a bad reaction to medication (Plaintiff avers
that he did not use negative energy to harm the dog, but takes the Fifth regarding a bee sting).
Matter-Of-Law Averments
21-28. Denied. As noted by Defendant, for whom Rule 7.1 just doesn't seem to be good
enough, these "averments" are conclusory legal arguments, requiring no response. To the extent
they are factual, they are denied. By way of further answer, all five counts were properly pled,
particularly the Declaratory Judgment Act (DJA) count, since Defendant 's own lawsuit threat
created the controversy; to say there is no controversy is to say Plaintiff has prevailed on that
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count. Jurisdictional issues remain, as the DJA count could wind up in this court, in the Districts
of Nevada or Southern California, or in the state courts of either Pennsylvania, Nevada, or
California. As properly argued in the Memorandum, this is the proper venue.
29-30. Denied. These averment are conclusory; to the extent they are factual, they are
denied. By way of further answer, they are prejudicial and irrelevant, since this case should rise
or fall on its own merits, with Defendant's arguments reserved for a separate, relevant motion
that is not this one. Defendant also does not state exactly which Admissions to which she is
referring.
31. Denied. The averment is conclusory; if factual, denied. By way of further answer:
a.
Defendant's business appears to be doing fine, or as fine as it would be doing had
she never met Plaintiff. In addition to her high-priced attorney (not used to sue CustomsClub),
Defendant, Bunny and Boots reside in the "squalor" of Manhattan Beach, California:
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b.
Plaintiff went into debt just reading about Defendant's lifestyle, which speaks for
itself, or will speak for itself, pending financial discovery.
c.
Plaintiff is the one who has had to endure the costs and harassment of not just
being threatened with SLAPP litigation, but unspecified, global, civil litigation and even criminal
prosecution, all courtesy of defense counsel, who has offered to "make it all go away" if Plaintiff
would just drop this lawsuit.
d.
Defendant's marketing claims, such as using hypnosis to make more money, or
her "out there" beliefs, and the market being flooded with attractive female hypnotists
(Defendant is Hollywood's "canary in the coal mine") are as much a cause as any of her alleged
lack of business traction. Plaintiff has not blamed her for his lack of chess dominance.
e.
Defendant's conduct should have made it foreseeable to her that she would be
sued, and sued in Pennsylvania, for reasons set forth in the Memorandum.
f.
Defendant has voluntarily used a high-priced attorney to litigate the merits of this
case, well beyond the scope for dismissal on jurisdictional or 12(b)(6) grounds.
g.
This litigation has cost Plaintiff valuable training time at chess, or time which he
could apply to more productive pursuits.
WHEREFORE, the instant motion should be DENIED. An appropriate form of order is
attached.
This the 24th day of August, 2015
Gordon Roy Parker, Pro Se
4247 Locust Street, #119
Philadelphia, PA 19104
(267) 298-1257
SnodgrassPublish@aol.com
PLAINTIFF
12
IN THE UNITED STATES COURT FOR THE
EASTERN DISTRICT OF PENNSYVLANIA
GORDON ROY PARKER,
Plaintiff
v.
JACQUELINE FAYE GOLDHAGEN,
Defendant
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: Case No: 15-cv-3304-TON
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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S
RESPONSE TO DEFENDANT'S MOTION TO DISMISS
Plaintiff Gordon Roy Parker ("Plaintiff"), submits this Memorandum of Law in support of
is Response to Defendant's motion to dismiss.
Memorandum Of Contents
Memorandum Of Contents ........................................................................................................... i
Memorandum Of Points And Authorities ................................................................................. iii
I.
BACKGROUND ....................................................................................................................1
II.
LEGAL STANDARD ............................................................................................................1
A.
MOTIONS TO DISMISS UNDER FEDERAL RULE 12 .........................................1
1.
2.
3.
Federal Rule 12(b)(6) .............................................................................................1
Federal Rule 56(a) (Conversion) ............................................................................2
Waiver of Defenses Under Federal Rules 12(g-h). ................................................2
a. Federal Rule 12(g) .............................................................................................2
b. Federal Rule 12(h) .............................................................................................3
B.
LEGAL STANDARD FOR PREMATURE LITIGATION OF THE MERITS .....4
C.
LEGAL STANDARD FOR WAIVER OF JURISDICTIONAL DEFENSES ........4
1.
2.
3.
4.
D.
LEGAL STANDARD FOR FEDERAL AND LOCAL DECLARATORY
RELIEF ..........................................................................................................................6
1.
2.
E.
General ....................................................................................................................4
Waiver By Entry Of Appearance ............................................................................4
Waiver By Litigation Of The Merits ......................................................................5
Waiver By Premature Rule 11 Motion ...................................................................5
The Declaratory Judgment Act ...............................................................................6
The Pennsylvania Declaratory Judgment Act.........................................................7
LEGAL STANDARD FOR LIBEL .............................................................................8
1.
2.
3.
General ....................................................................................................................8
Section 230 Immunity.............................................................................................8
The Constitutional Right To Reputation.................................................................8
F.
LEGAL STANDARD FOR BREACH OF CONTRACT .........................................9
G.
LEGAL STANDARD FOR FRAUDULENT/NEGLIGENT
MISREPRESENTATION ..........................................................................................10
III. ARGUMENT .......................................................................................................................10
A.
PERSONAL JURISDICTION ...................................................................................11
1.
2.
3.
4.
B.
Minimum Contacts Have Been Met By Defendant's Threat To Sue Plaintiff......11
This Court Has Diversity Jurisdiction. Alternatively, Pennsylvania
State Court Has Jurisdiction ...............................................................................11
The Declaratory Judgment Act (DJA) Confers Jurisdiction.................................11
Defendant Has Voluntarily Submitted To Jurisdiction Of This Court .................11
ALL FIVE CLAIMS ARE PROPERLY PLED .......................................................12
1.
2.
3.
4.
5.
The Claims Are Plausible .....................................................................................12
The Declaratory Judgment Act Applies ...............................................................12
a. This Court Has Subject-Matter Jurisdiction ....................................................12
b. This Court Has Personal Jurisdiction ..............................................................12
1) The Absence Of Litigation In Other Courts Confers Jurisdiction...............12
2) Diversity Jurisdiction Confers Jurisdiction Under The DJA.......................13
3) A Genuine Controversy Exists ....................................................................13
The Breach Of Contract Claim Was Properly Pled ..............................................13
The Fraudulent/Negligent Misrepresentation Claim Was Properly Pled .............14
The Defamation Claim Was Properly Pled ..............................................................
a. Linking To The ED Page Was Defamatory ....................................................14
b. Defendant Was The Original Publisher Of Some Defamation .......................14
IV. CONCLUSION ....................................................................................................................15
2
Memorandum Of Points And Authorities
*denotes Supreme Court case
Cases:
Allstate Ins. Co. v. Seelye,198 F. Supp.2d 629, 631-32 (W.D. Pa. 2002) ........................................7
Bel-Ray Co. v. Chem-rite (Pty) Ltd., 181 F.3d 435, 443 (3d Cir. 1999)..........................................4
Bouriez v. Carnegie Mellon Univ., 585 F.3d 8 765, 771 (3d Cir. 2009) .......................................10
*Brillhart v. Excess Ins. Co., 316 U.S. 491 ...........................................................................7,12,13
Compagnie des Bauxites de Guinee v. L'union atlantique s.a. d'assurances,723 F.2d 357
(3rd Cir. 1983) .................................................................................................................................4
*Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ................................................................................2
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ...................2
Days Inns Worldwide v. Patel, 445 F.3d 899 (6th Cir. 2006)..........................................................4
Dimare v. Metlife Insurance Co., 369 Fed. App’x 324, at *329 (3d Cir. 2010) ............................10
Dow Jones & Co., Inc. v. Harrods, Ltd., 346 F. 3d 357 (2nd Cir. 2003) ......................................12
Essex Ins. Co. v. Gilbert Weinberger, Inc., No. 07-180, 2007 U.S. Dist. LEXIS 7713
(M.D. Pa. Feb. 2, 2007) ...................................................................................................................7
Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) .......................................................10
Gerber v. Riordan, 649 F.3d 514 (6th Cir. 2011) ............................................................................4
Green v. AOL, 318 F.3d 465 (3rd Cir. 2003) ...................................................................................8
J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc.,792 A.2d 1269 (Pa.Super.2002) .....................9
KDH Elec. Sys., Inc. v. Curtis Tech. Ltd., No. CIV.A. 08-2201, 2010 WL 1047807, at *4
(E.D.Pa., Mar. 19, 2010) ...............................................................................................................4,5
Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) ..........................................1
Mobile Anesthesiologists Chicago, LLC v. Anesthesia Associates of Houston Metroplex, P.A.,
623 F.3d 440, 443 (7th Cir.2010) ....................................................................................................4
Munich Welding, Inc. v. Great Am. Ins. Co., 415 F. Supp.2d 571. (W.D. Pa. 2006) ......................7
Nationwide Mut. Ins. Co. v. Svitesic, No. 05-0369, 2005 U.S. Dist. LEXIS 28127,
at *4-7 (W.D. Pa. Nov. 16, 2005) ....................................................................................................7
Nationwide Mut. Ins. Co. v. Yungwirth, No. 04-1681, 2005 U.S. Dist. LEXIS 28130, at *6
(W.D. Pa. Nov. 16, 2005) .............................................................................................................6,7
Neirbo Co. v. Bethlehem Shipbuilders Corp., 308 U.S. 165, 167-68, (1939)..................................4
Overall v. Univ. of Pa., 412 F.3d 492, 498 (3d Cir. 2005) ............................................................10
*Paul v. Davis, 424 U.S. 693 (1976) ...............................................................................................8
Rinkenbach et al. v. State Auto Insurance Company, (E.D.Pa. #07-cv-870 (2007) ........................6
State Auto Ins. Cos. v. Summy, 234 F.3d 131 ...............................................................................6,7
In re. Tex. E. Transmission Corp., 15 F.3d 1230, 1236 (3d Cir. 1994) .......................................4, 5
3
TES Franchising, LLC et al. v. Dombach et al., E.D.Pa #10-cv-0017 (2010) ................................5
*Times v. Sullivan, 376 U.S. 254 (1964) .........................................................................................8
The Hartford v. Keystone Auto. Operations, No. 06-465, 2007 U.S. Dist. LEXIS 5818,
at *6-8 (M.D. Pa. Jan. 29, 2007) ......................................................................................................7
Wyrough & Loser, Inc. v. Pelmor Labs., Inc., 376 F.2d 543, 547 (3d Cir. 1967) ...........................4
Statutes:
19 USC §1337 (Tariff Act Of 1930) ................................................................................................6
26 USC §8001 et seq. (Internal Revenue Code of 1986).................................................................6
28 USC §2201 (Declaratory Judgment Act) ....................................................................................6
42 Pa. C.S. § 7532 (The Pennsylvania Declaratory Judgment Act) ............................................... 7
42 Pa. Con. Stat. Ann. § 8343(a) (Libel) .........................................................................................8
47 USC 230(c)(1) (Communications Decency Act) ........................................................................8
Publications:
Corbin, Arthur L., Corbin on Contracts § 1005 at 63 (1951)..........................................................9
Murray, John Edward Jr., Cases and Materials on Contracts 184 (3rd ed.1983) ..........................9
Rules:
Federal Rule 9(b) ...........................................................................................................................10
Federal Rule 11 ................................................................................................................................1
Federal Rule 12(b)(2) ......................................................................................................................1
Federal Rule 12(b)(6) .......................................................................................................................1
Federal Rules 12(g-h) ..................................................................................................................2, 3
Federal Rule 19(b) ...........................................................................................................................3
Federal Rule 56(a)............................................................................................................................2
4
I. BACKGROUND
Aside from allowing her counsel to cross all boundaries of human decency, and numerous
rules, statutes, and torts, Defendant's arguments fail miserably as a matter of law; consequently,
the instant motion should be denied with prejudice. It was her own threat of litigation which
prompted this action, for which Pennsylvania certainly has jurisdiction, even if it is the state
court rather than this court for which venue is proper, for the simple reason that Defendant's
threatened litigation for libel must be heard in Pennsylvania, as the federal or state courts beyond
the Commonwealth lack personal jurisdiction over Plaintiff, the would-be defendant.
Despite Defendant being domiciled, residing, and primarily conducting business in
California, Plaintiff has several grounds for establishing jurisdiction, including but not limited to
her own insistence upon litigating the merits. Rather than file a simple 12(b)(2) motion to
dismiss, she has added irrelevant, prejudicial, and voluminous Rule 11 and 12(b)(6) motions,
burdening Plaintiff tremendously, and unnecessarily.
II.
A.
LEGAL STANDARD
MOTIONS TO DISMISS UNDER FEDERAL RULE 12.
1.
Federal Rule 12(b)(6).
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) “is viewed with disfavor and is rarely granted.” Lowrey v. Texas A & M Univ. Sys.,
117 F.3d 242, 247 (5th Cir. 1997). Motions to dismiss for failure to state a claim are appropriate
when a defendant attacks the complaint because it fails to state a legally cognizable claim. Fed.
R. Civ. P. 12(b)(6). The test for determining the sufficiency of a complaint under Rule 12(b)(6)
was set out by the United States Supreme Court as follows: “[A] complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355
U.S. 41, 45-46 (1957).
2.
Federal Rule 56(a).
Sometimes a motion to dismiss will be converted to a Motion For Summary Judgment,
under Federal Rule 56(a). It is appropriate for the Court to grant summary judgment if the
pleadings, discovery materials, and any affidavits before the Court show that there is no
genuine issue of material fact and that the movant is entitled to judgment as a
matter of law.
[A] party seeking summary judgment always bears the initial responsibility of
informing the . . . court of the basis for its motion, and . . . [must] demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). Courts must review the evidentiary materials submitted in support of a
motion for summary judgment to ensure that the motion is supported by evidence. If the
evidence submitted in support of the summary judgment motion does not meet the movant’s
burden, then summary judgment must be denied.
3.
Waiver of Defenses Under Federal Rules 12(g-h).
While 12(b)(2) defenses are waived if not included in the initial Rule 12 motion, Rule
12(b)(6) defenses are not:
a.
Federal Rule 12(g):
(g) Joining Motions.
2
(1) Right to Join. A motion under this rule may be joined with any other
motion allowed by this rule.
(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2)
or (3), a party that makes a motion under this rule must not make another motion under this rule
raising a defense or objection that was available to the party but omitted from its earlier motion.
b.
Federal Rule 12(h):
(h) Waiving and Preserving Certain Defenses.
(1) When Some Are Waived. A party waives any defense listed in Rule
12(b)(2)(5) by:
(A) omitting it from a motion in the circumstances described in Rule
12(g)(2); or
(B) failing to either (i) make it by motion under this rule; or (ii)
include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of
course.
(2) When To Raise Others. Failure to state a claim upon which relief can
be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be
raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or (C) at trial.
(3) Lack of Subject-Matter Jurisdiction. If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.
3
B.
LEGAL STANDARD FOR PREMATURE LITIGATION OF THE MERITS
The parties to litigation "should conserve judicial time and effort and should raise and
dispose of preliminary matters like personal jurisdiction before the court considers the merits or
quasimerits of a controversy.” Wyrough & Loser, Inc. v. Pelmor Labs., Inc., 376 F.2d 543, 547
(3d Cir. 1967).
C.
LEGAL STANDARD FOR WAIVER OF JURISDICTIONAL DEFENSES
1.
General.
"[Objection to p]ersonal jurisdiction is a right that may be waived." Bel-Ray Co. v.
Chem-rite (Pty) Ltd., 181 F.3d 435, 443 (3d Cir. 1999). A party is deemed to have consented to
personal jurisdiction if the party actually litigates the underlying merits or demonstrates a
willingness to engage in extensive litigation in the forum.” In re. Tex. E. Transmission Corp., 15
F.3d 1230, 1236 (3d Cir. 1994). A personal jurisdiction defense may be "lost by failure to assert
[it] seasonably, by formal submission in a cause, or by submission by conduct.” KDH Elec. Sys.,
Inc. v. Curtis Tech. Ltd., No. CIV.A. 08-2201, 2010 WL 1047807, at *4 (E.D.Pa., Mar. 19, 2010,
quoting Neirbo Co. v. Bethlehem Shipbuilders Corp., 308 U.S. 165, 167-68, (1939)).
2.
Waiver By Entry Of Appearance.
Gerber v. Riordan, 649 F.3d 514 (6th Cir, 2011) addressed this issue head-on, and
extensively:
In deciding whether Defendants waived their personal jurisdiction defense, we must determine
whether any of Defendants' appearances and filings in the district court constituted "legal
submission to the jurisdiction of the court." Days Inns, 445 F.3d at 905. As an initial matter, we
note that while "the voluntary use of certain [district] court procedures" serve as "constructive
consent to the personal jurisdiction of the [district] court," Compagnie des Bauxites de Guinee,
456 U.S. at 704, 102 S.Ct. 2099, not all do. See Mobile Anesthesiologists Chicago, LLC v.
Anesthesia Associates of Houston Metroplex, P.A., 623 F.3d 440, 443 (7th Cir.2010). Only those
submissions, appearances and filings that...cause the court to go to some effort that would be
wasted if personal jurisdiction is later found lacking [result in waiver of a personal jurisdiction
defense]. id at 443.
It is clear that Defendants' filing of a general appearance with the district court constituted a
voluntary acceptance of the district court's jurisdiction, and therefore, a waiver of Defendants'
4
personal jurisdiction defense....Defendants' attorney's entry of a general appearance with the
district court on behalf of Defendants on October 16, 2006 constituted a waiver of Defendants'
personal jurisdiction defense. (All emphasis added).
3.
Waiver By Litigation Of The Merits.
"A party is deemed to have consented to personal jurisdiction if the party actually
litigates the underlying merits or demonstrates a willingness to engage in extensive litigation
in the forum.” In re. Tex. E. Transmission Corp. A personal jurisdiction defense may be "lost
by failure to assert [it] seasonably, by formal submission in a cause, or by submission by
conduct.” KDH Elec. Sys., Inc. v. Curtis Tech. Ltd., No. CIV.A. 08-2201, 2010 WL 1047807, at
*4 (E.D.Pa., Mar. 19, 2010, quoting Neirbo Co. v. Bethlehem Shipbuilders Corp., 308 U.S. 165,
167-68, (1939)). (Emphasis Added).
4.
Waiver By Premature Rule 11 Motion.
In TES Franchising, LLC et al. v. Dombach et al., E.D.Pa #10-cv-0017 (2010) that
court explained:
In a footnote on page 10 of his Memorandum of Law in Opposition to the Motion
to Dismiss, Mr. Dombach argues that D&Y and Mr. Powell arguably waived
their personal jurisdiction defense by (1) serving a Rule 11 motion that did not
include an objection based on personal jurisdiction; and (2) filing a motion
seeking an order from the Court granting leave to file a Rule 11 motion against
defendants. The Rule 11 motion included a declaration of D&Y’s CEO Karen
Powell. These actions were taken prior to the filing of the motion to dismiss
based on lack of personal jurisdiction.
Arguably, by filing the Motion for Leave to File the Rule 11 Motion in this
Court, D&Y and Mr. Powell waived their jurisdictional defense because they
attempted to “actually litigate the underlying merits or demonstrate a willingness
to engage in extensive litigation in the forum.” KDH Elec. Sys., Inc., 2010 WL
1047807, at *4. This case would arguably not have been litigated any differently
had D&Y and Mr. Powell first moved for dismissal before seeking leave to file a
Rule 11 motion because this Court denied the Motion for Leave to File the Rule
11 Motion without prejudice pending decision on the instant Motion to Dismiss.
Thus, we find that D&Y and Mr. Powell did not waive their right to assert the
jurisdictional defense. (Emphasis added).
5
Unlike here, in TES Franchising, the Rule 11 moving parties did not file an exhaustive
Rule 12(b)(6) motion (which almost certainly will convert to a Rule 56 motion), as has the
Defendant in this action.
D.
LEGAL STANDARD FOR FEDERAL AND LOCAL DECLARATORY RELIEF
Given that Defendant's litigation threat over Plaintiff's Yelp! review and his online postings
have created a legitimate controversy, the remaining question is venue, with this court having
near-absolute discretion to remove this case to another federal or state jurisdiction.
1.
The Declaratory Judgment Act.
The relevant part of the Declaratory Judgment Act (DJA), 28 USC §2201(a), states:
a)
In a case of actual controversy within its jurisdiction, except with respect to Federal taxes
other than actions brought under section 7428 of the Internal Revenue Code of 1986, a
proceeding under section 505 or 1146 of title 11, or in any civil action involving an
antidumping or countervailing duty proceeding regarding a class or kind of merchandise of
a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930), as
determined by the administering authority, any court of the United States, upon the filing of
an appropriate pleading, may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or could be sought. Any such
declaration shall have the force and effect of a final judgment or decree and shall be
reviewable as such.
Rinkenbach et al. v. State Auto Insurance Company, (E.D.Pa. #07-cv-870 (2007))
contained an extensive analysis of the unique jurisdictional issues, presented by DJA cases
rooted in diversity of the parties:
The federal Declaratory Judgment Act provides that districts “may declare the rights and other
legal relations of any interested party seeking such declaration...”. 28 U.S.C. § 2201 (emphasis
added)...[I]n declaratory judgment actions “Congress has afforded the federal courts a freedom
not present in ordinary diversity suits to consider the state interest in having the state courts
determine questions of state law.”
[C]ourts should weigh the following considerations: “[a] general policy of restraint when the
same issues are pending in a state court; [a]n inherent conflict of interest between an insurer's
duty to defend in a state court and its attempt to characterize that suit in federal court as falling
within the scope of a policy exclusion; [and a]voidance of duplicative litigation.” Summy, 234
F.3d at 134....A [potential] plaintiff’s objection to a district court’s exercise of jurisdiction is an
additional factor in determining whether to decline jurisdiction. Munich Welding, Inc., 415 F.
Supp.2d at 576, Nationwide Mut. Ins. Co. v. Yungwirth, No. 04-1681, 2005 U.S. Dist. LEXIS
28130, at *6 (W.D. Pa. Nov. 16, 2005). (all emphasis added).
6
It is well-settled that district courts should decline to exercise jurisdiction over a declaratory
action where there is a pending parallel proceeding in state court. Summy, 234 F.3d 131; Alea
London Ltd. v. El Pailon, Inc., No. 05-4902, 2007 U.S. Dist. LEXIS 17736 (E.D. Pa. Mar. 13,
2007) (declining to exercise federal jurisdiction in declaratory action when there were two
pending state court actions); Essex Ins. Co. v. Gilbert Weinberger, Inc., No. 07-180, 2007 U.S.
Dist. LEXIS 7713 (M.D. Pa. Feb. 2, 2007) (dismissing declaratory action sua sponte where there
was a pending state court case); Munich Welding, Inc., 415 F. Supp. 571 (dismissing federal
declaratory judgment action when there was a related action pending in state court against the
insurer). Several courts have found federal jurisdiction improper even without a parallel state
court case. (all emphasis added).
While Wilton and Summy counsel that a parallel state court proceeding is one factor in favor of
declining to exercise jurisdiction in declaratory judgment actions, the lack of a related state court
proceeding is not determinative, particularly when there is no federal interest in adjudicating the
state law dispute. The Hartford v. Keystone Auto. Operations, No. 06-465, 2007 U.S. Dist.
LEXIS 5818, at *6-8 (M.D. Pa. Jan. 29, 2007); Nationwide Mut. Ins. Co. v. Svitesic, No. 050369, 2005 U.S. Dist. LEXIS 28127, at *4-7 (W.D. Pa. Nov. 16, 2005); Yungwirth, 2005 U.S.
Dist. LEXIS 28130, at *4-6; Allstate Ins. Co. v. Seelye,198 F. Supp.2d 629, 631-32 (W.D. Pa.
2002). Even though there is no parallel state court proceeding in this case, the court has discretion
to decline to exercise jurisdiction since there is no federal interest in this case. Defendant
removed this dispute, which both parties concede focuses exclusively on a state statute, the
Pennsylvania Motor Vehicle Financial Responsibility law, to federal court on the basis of
diversity. The state law the court must apply to this dispute is well settled. The Hartford, 2007
U.S. Dist. LEXIS 5818, at *8 (noting that state law requirements to evaluate the validity of
underinsured motorist rejection forms are well settled). Additionally, plaintiff objects to federal
jurisdiction and has moved the court to remand the case. These factors give this court discretion
to remand the case.
IV. CONCLUSION Even though there is not a parallel case pending in state court, there is no
federal interest in this case since it arises entirely under well-settled state law and the plaintiff
objects to federal jurisdiction. Therefore, I will decline to exercise jurisdiction and remand the
case to state court.
Rinkenbach clearly shows that a district court can rule pretty much any way it wishes
when confronted with a DJA case based on diversity jurisdiction. Unlike Brillhart v. Excess Ins.
Co., 316 U.S. 491, which is often cited as the leading case for jurisdiction under the Declaratory
Judgment Act (DJA), and its progeny, in Rinkenbach, as in the instant action, no parallel statelaw action was pending.
2.
The Pennsylvania Declaratory Judgment Act.
The Pennsylvania Declaratory Judgment Act, 42 Pa. C.S. § 7532 et seq., is the stricter
state equivalent of the DJA. It states:
Courts of record, within their respective jurisdictions, shall have power to declare rights, status,
and other legal relations whether or not further relief is or could be claimed. No action or
proceeding shall be open to objection on the ground that a declaratory judgment or decree is
7
prayed for. The declaration may be either affirmative or negative in form and effect, and such
declarations shall have the force and effect of a final judgment or decree.
E.
LEGAL STANDARD FOR LIBEL
1.
General.
To successfully bring a claim for libel in Pennsylvania, a Plaintiff must plead (1)
defamatory communication; (2) publication by the defendant; (3) application to the plaintiff; (4)
understanding by the recipient of its defamatory meaning; (5) understanding by the recipient it is
intended to be applied to the plaintiff; and (6) special harm resulting to plaintiff from
publication; and (7) abuse of any conditionally privileged occasion. 42 Pa. Con. Stat. Ann. §
8343(a). For public figures, Times v. Sullivan, 376 U.S. 254 (1964), adds the additional
requirement of "actual malice," i.e., knowledge of falsity or reckless disregard for the truth.
2.
Section 230 Immunity.
Under Green v. AOL, 318 F.3d 465 (3rd Cir. 2003), the Third Circuit has followed
many (but not all) of its brethren with a broad immunity under 47 USC 230(c)(1), one which has
yet to be tested by the Supreme Court. Section 230, of course, does not apply to the original
speaker or publisher.
3.
The Constitutional Right To Reputation.
In Paul v. Davis, 424 U.S. 693 (1976), the Supreme Court specifically addressed the
constitutional right to reputation:
"[W]e hold that the right of reputation ... is neither 'liberty' nor 'property' guaranteed against state
deprivation without due process of law." In that case, local police had sent "warning flyers" to
retailers listing Davis as a "potential shoplifter" who had been arrested, without noting on the
flyer that Davis was later acquitted; Davis sued. While Davis lost, the facts are similar to those in
this case, with the flyer Davis's "ED page," the Scarlett-letter of his pre-Google day in 1976.
Even Justice Rehnquist, writing for the majority, noted
The Court has recognized the serious damage that could be inflicted by branding a government
employee as "disloyal," and thereby stigmatizing his good name. But the Court has never held
8
that the mere defamation ... was sufficient to invoke the guarantees of procedural due process
absent an accompanying loss of government employment....
The 1976 court could not have comprehended a world where any individual with
whom one comes into contact, such as Defendant with Plaintiff, can "Google" their name, to the
point where the defamation is but a lengthy Scarlett-letter, and where constitutional harm (such
as the loss of government employment) can be inferred from any defamation tied to an internet
search of an individual's name. Justice Stephens, writing for the dissent, saw this clearly, even in
Davis, a case where the sphere of harm was local, rather than global:
The Court today holds that police officials, acting in their official capacities as law enforcers,
may on their own initiative and without trial constitutionally condemn innocent individuals as
criminals and thereby brand them with one of the most stigmatizing and debilitating labels in our
society. If there are no constitutional restraints on such oppressive behavior, the safeguards
constitutionally accorded an accused in a criminal trial are rendered a sham.... The Court
accomplishes this result by excluding a person's interest in his good name and reputation from all
constitutional protection.... The result ... is demonstrably inconsistent with our prior case law and
unduly restrictive in its construction of our precious Bill of Rights....
F.
LEGAL STANDARD FOR BREACH OF CONTRACT
Casey B. Green's (defense counsel's son's) summary suffices:
In Pennsylvania, a breach of contract action involves (1) the existence of a contract, (2) a breach of a
duty imposed by the contract, and (3) damages. J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc.,792
A.2d 1269 (Pa.Super.2002). Additionally, it is axiomatic that a contract may be manifest orally, in
writing, or as an inference from the acts and conduct of the parties. John Edward Murray, Jr., Cases
and Materials on Contracts 184 (3rd ed.1983) (citation omitted).
The purpose of damages is to put the plaintiff in the position he or she would have been in but for the
breach. Maxwell v. Schaefer, 381 Pa. 13, 21, 112 A.2d 69, 73 (1955); Harman v. Chambers, 358 Pa.
516, 521, 57 A.2d 842, 845 (1948); Mancini v. Morrow, 312 Pa.Super. 192, 204, 458 A.2d 580, 586
(1983). The measure of recovery and the method of evaluation that are adopted should in every case be
so adjusted as to attain as nearly as possible the purpose of our system of remedial justice. This purpose
is to put the injured party in as good a position as the promised performance would have put him,
having regard both to the reasonable foreseeability of the harm and to the extent that it could reasonably
have been avoided by the injured party himself. 5 Corbin on Contracts § 1005 at 63 (1951).
(From http://contracts.lawyers.com/breach-of-contract/blogs/archives/18526-the-basics-elements-of-abreach-of-contract-action-pennsylvania.html (retrieved July 1, 2015 2:26pm). (All emphasis added).
9
G.
LEGAL STANDARD FOR FRAUDULENT/NEGLIGENT MISREPRESENTATION
Under Pennsylvania law, a fraudulent misrepresentation claim has six elements:
“(1) a representation; (2) which is material to the transaction at hand; (3) made falsely,
with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of
misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the
resulting injury was proximately caused by the reliance.” Bouriez v. Carnegie Mellon Univ., 585
F.3d 8 765, 771 (3d Cir. 2009) (citing Overall v. Univ. of Pa., 412 F.3d 492, 498 (3d Cir. 2005).
A party alleging fraud “must state with particularity the circumstances constituting
fraud.” Fed. R. Civ. P. 9(b). The Third Circuit has held that to satisfy Rule 9(b), a plaintiff must
“state the circumstances of the alleged fraud with sufficient particularity to place a defendant on
notice of the ‘precise misconduct with which [it is] charged.’” Dimare v. Metlife Insurance Co.,
369 Fed. App’x 324, at *329 (3d Cir. 2010) (quoting Frederico v. Home Depot, 507 F.3d 188,
200 (3d Cir. 2007) (alteration in original). “This requires a plaintiff to either plead the date, time,
and place of the alleged fraud, or inject precision into the allegations by some alternative
means.” Dimare, 369 Fed. App’x at *329.
Essentially, the standard is a "broken promise with damages."
Alternatively, a claim for negligent misrepresentation is analogous to a claim for simple
negligence, versus the higher standard for gross negligence. A negligent misrepresentation need
not be frivolous.
III. ARGUMENT
NOTE: This section is listed as II in the instant motion, which combines the argument with
the legal standard, while this pleading separates the latter into section II, making this III.
10
It should be noted that Defendant has offered absolutely no evidence or affidavits in
support of the entirely conclusory statements of its motion. For that reason alone, the motion
should be denied.
A.
PERSONAL JURISDICTION
1.
Minimum Contacts Have Been Met By Defendant's Threat To Sue Plaintiff.
Because a) Defendant has entered directly into an agreement with Plaintiff, but and b) the
ED page targets Plaintiff in his home neighborhood, as an attempted "sex-offender warning"
republished by Defendant, the long-arm requirements have been satisfied.
2.
This Court Has Diversity Jurisdiction. Alternatively, Pennsylvania State Court
Has Jurisdiction.
With supplemental jurisdiction conferred by the DJA claim, or, alternatively,
Pennsylvania's long-arm statute, diversity jurisdiction applies to all other counts. Alternatively,
Pennsylvania state court has jurisdiction, though it should be noted that the amount in
controversy would allow Defendant to remove the case back to this court based on diversity.
3.
The Declaratory Judgment Act (DJA) Confers Jurisdiction.
The Declaratory Judgment Act claim is based on the controversy within this
jurisdiction created by Defendant's litigation threat.
4.
Defendant Has Voluntarily Submitted To Jurisdiction Of This Court.
As outlined in subparagraph II(C) above, Defendant has voluntarily submitted to this
Court's jurisdiction via a) defense counsel's entry of appearance; b) a clear history of vigorously
litigating the merits of this case, to the point of attempting to put Plaintiff on trial, and c) by
creating a controversy within this jurisdiction when she threatened to sue Plaintiff for libel, in a
11
case over which only a Pennsylvania court has personal jurisdiction over Plaintiff, the would-be
Defendant in that lawsuit.
B.
ALL FIVE CLAIMS ARE PROPERLY PLED.
1.
The Claims Are Plausible.
Plaintiff's breach-of-contract and fraud/negligence claims are clearly plausible, as are
all his claims, particularly the DJA claim.
2.
The Declaratory Judgment Act Applies.
a.
This Court Has Subject-Matter Jurisdiction.
This case easily passes the three-pronged test for DJA subject-matter jurisdiction:
(1) whether [or not] the judgment will serve a useful purpose in clarifying or settling the legal
issues involved; and (2) whether [or not] a judgment would finalize the controversy and [3] offer
relief from uncertainty. Defendant's position that Plaintiff can speak freely under constant
threat of litigation and attempted prosecution is ludicrous; the only real questions are whether
jurisdiction is proper in federal or state court,
b.
This Court Has Personal Jurisdiction.
Defendant relies heavily on Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942).
This case is a clear exception to Brillhart, for two reasons.
1)
The Absence Of Litigation In Other Courts Confers Jurisdiction.
In Dow Jones & Co., Inc. v. Harrods, Ltd., 346 F. 3d 357 (2nd Cir. 2003), the
Court's aversion to invoking the DJA, nor the Supreme Court's aversion to doing so in Brillhart,
were very clearly based on the desire not to usurp another court's authority, though both courts
refused to completely slam the door on applying the DJA to state-law claims:
Where the complaint in an action for declaratory judgment seeks in essence to assert
a defense to an impending or threatened state court action, it is the character of the
threatened action, and not the defense, which will determine whether there is
12
federal-question jurisdiction in the District Court. If the cause of action, which the
declaratory defendant threatens to assert, does not itself involve a claim under federal
law, it is doubtful if a federal court may entertain an action for a declaratory
judgment establishing a defense to that claim. This is dubious even though the
declaratory complaint sets forth a claim of federal right, if that right is in reality in
the nature of a defense to a threatened cause of action. Federal courts will not seize
litigations from state courts merely because one, normally a defendant, goes to
federal court to begin his federal-law defense before the state court begins the case
under state law. (Emphasis Added).
Since this is the only court where the threatened controversy could be
litigated, this case is clearly separate from Brillhart, and should not be held to its precedent.
2)
Diversity Jurisdiction Confers Jurisdiction Under The DJA.
In this specific case, even a declaratory case filed in state court would find
its way back to federal court due to diversity and the amount in controversy.
3)
A Genuine Controversy Exists.
Defendant has threatened aggressive litigation, even prosecution, over what
Plaintiff asserts is perfectly legal free speech. If that is not a controversy, Plaintiff does not
know what is.
3.
The Breach Of Contract Claim Was Properly Pled.
Plaintiff stands on the Amended Complaint to support his breach of contract claim,
adding only that his injury is twofold: a) as a fan, he was deprived of a promised
performance/appearance by a celebrity, and b) he has been unable to mitigate his damages by
finding a comparably qualified talent to perform comparable work at a comparable price. Put
simply, Defendant has a rare talent for hypnosis, and an even rarer level of training and
experience. As with Boxing Helena, this Court should award monetary damages, rather than
force performance of a video which is no longer of use to Plaintiff, and which Defendant has
made clear she has no interest in performing. That a contract was breached is obvious from the
facts.
13
4.
The Fraudulent/Negligent Misrepresentation Claim Was Properly Pled
It is abundantly clear that Defendant never intended to honor her agreement with
Plaintiff. The preponderance of the evidence indicates that she intended all along to market
herself via Customs Club, diverting orders to PayPal, to avoid a digital adult footprint. It was
only after she "lawyered up" against Plaintiff that she managed to get her pages taken down, yet
she never filed suit against CustomsClub, by far the worse malfeasor, if Defendant is to be
believed.
Alternatively, Defendant's negligent conduct, upon which Plaintiff reasonably relied,
caused him damages in the form of loss of privacy (the content of the hypnosis video), and the
false expectation that he would be hypnotized on video by a highly trained Hollywood actress,
and professional stage hypnotist, for a "bargain-basement" price that Defendant no longer wished
to honor, once Plaintiff refused to divert the money to PayPal.
5.
The Defamation Claim Was Properly Pled.
a.
Linking to the ED page was defamatory.
Defendant, who linked to a website which accused Plaintiff of authoring an
essay about raping and murdering underaged gymnasts, relies, not surprisingly, on Section 230
immunity for absolution, her counsel referring to it as "settled law." (Memorandum, p. 16). In
reality, Section 230 is anything but settled, with most of the western world moving in the other
direction, by validating the right to reputation, the right to be forgotten, and by rejecting
distributor/republisher immunity. Our own Supreme Court has yet to check in.
b.
Defendant was the original publisher of some defamation.
Not all alleged defamation by Defendant was third-party (see Count Four); the
Amended Complaint (¶24 et al.) specifically references statements made by Defendant, rather
14
than any site to which she linked. Plaintiff also has alleged that Defendant made the ED page
her own words when she linked, adding the defamatory commentary.
IV. CONCLUSION
For the reasons set forth hereinabove, the instant motion should be denied.
Alternatively, if dismissal is granted, particularly for lack of jurisdiction, dismissal should
be without prejudice, and the case should be remanded to state court within the
Commonwealth..
This the 24th day of August, 2015.
Gordon Roy Parker, Pro Se
4247 Locust Street, #119
Philadelphia, PA 19104
(267) 298-1257
SnodgrassPublish@aol.com
PLAINTIFF
15
IN THE UNITED STATES COURT FOR THE
EASTERN DISTRICT OF PENNSYVLANIA
GORDON ROY PARKER,
Plaintiff
v.
JACQUELINE FAYE GOLDHAGEN,
Defendant
:
:
:
:
:
:
:
:
: Case No: 15-cv-3304-TON
:
:
:
:
:
CERTIFICATE OF SERVICE
I, Gordon Roy Parker, Plaintiff in the above-styled action, hereby certify that I have served
a copy, by regular mail and e-mail, to Defendants' counsel of record, Plaintiff's Response To
Defendant's Motion To Dismiss,
Gary Green, Esq.
Sidkoff Pincus & Green
1100 Market, 27th Floor
Philadelphia, PA 19107-3601
gg@greatlawyers.com
This the 24th day of August, 2015.
Gordon Roy Parker, Pro Se
4247 Locust Street, #119
Philadelphia, PA 19104
(267) 298-1257
SnodgrassPublish@aol.com
PLAINTIFF
IN THE UNITED STATES COURT
FOR THE EASTERN DISTRICT OF PENNSYVLANIA
GORDON ROY PARKER,
Plaintiff
v.
JACQUELINE FAYE GOLDHAGEN,
Defendant
:
:
:
:
:
:
:
:
: Case No: 15-cv-3304-TON
:
:
:
:
:
ORDER
AND NOW, this ___ day of September, 2015, in consideration of Defendant's Motion To
Dismiss, and all responsive pleadings thereto, the motion is DENIED. This case shall proceed to
trial.
______________________
J.