Date: 27 Dec 2008 16:41:02
From: B. Lafferty
Subject: Reply to Polgar
For those without PACER access, here is my reply minus the footnotes.
Apologies for the formating.


Defendant, Brian Lafferty (“Lafferty” or “Defendant”), files this Reply
to Plaintiff’s
Response to Defendant’s Motion To Dismiss Pursuant To Fed. R. Civ. P.
12(B)(2) And
12(B)(3), And Subject To The Court’s Ruling On The Same, Motion To
Dismiss For Plaintiff’s
Failure To State A Claim Under Fed. R. Civ. P. 12(B)(6), Or In The
Alternative, Motion For A
More Definite Statement Pursuant To Fed. R. Civ. P. 12(E) and Brief in
Support Thereof, and
would respectfully show unto the court as follows:
I. This Court does not have jurisdiction over Lafferty. Alternatively,
this Court
should transfer the claims against Lafferty.
1. Polgar appears to be arguing that because the other ten Defendants
“waived” the
right to complain about jurisdiction, some sort of equity requires this
Court to exercise
jurisdiction even if Lafferty was not otherwise subject to jurisdiction.
However, Polgar is
forgetting that she served the first ten individual Defendants when they
came to Texas to attend a
chess tournament and/or the USCF annual meeting1 and, consequently,
because Polgar obtained
personal service over many of the Defendants in Texas, such actions did
not allow the
Defendants to raise this issue. But for being personally served, some,
if not all, of the
Defendants would have objected to personal jurisdiction. Similarly, the
other Defendants did not
raise a motion to transfer venue as they had been personally served in
Texas. However, Lafferty
has no connection to Texas and this court should dismiss the claims
against him or transfer such
claims. Thankfully, he had not come to Texas for this tournament.

2. With regard to alleged jurisdictional facts Polgar claims would
subject Lafferty to
jurisdiction in Texas, Polgar’s Response refers to some facts that are
not supported by the
affidavit attached to the Response and/or other proper evidence. Indeed,
the Response states that
Lafferty subjected himself to jurisdiction in Texas by contacting
“officials at Texas Tech” and/or
“reporters.” Plaintiff presented no evidence from any Texas Tech
official and/or reporter that
Lafferty contacted them in Texas. Plaintiff presented no evidence that
Lafferty unlawfully
obtained a paystub of Plaintiff’s husband in Texas. The affidavit was
extremely vague and
unclear as to exactly what Lafferty may or may not have done. Indeed,
Lafferty incorporates by
reference his Motion to Strike Improper Evidence presented to the Court
by Polgar.

3. As stated in Lafferty’s Motion, Polgar does not allege any facts that
Lafferty did
any action that could possibly subject himself to jurisdiction in Texas.
Instead, “J. W. Marnell”
(“Marnell”) apparently read online “postings” by Lafferty. However,
Marnell does not attach
any of these postings to his affidavit. Consequently, all of Marnell’s
purported testimony is
hearsay testimony. Additionally, Marnell states that the postings were
“insulting, demeaning,
defamatory, and libelous” but fails to state any specific facts as to
exactly what was in the
postings. As more fully explained in the Motion to Strike Improper
Evidence, conclusory
statements and/or unsubstantiated opinions are not proper evidence.

4. Marnell also alleges that Lafferty made public postings accusing
Polgar and Paul
Truong of “physically abusing her two young children,” and Marnell
alleges that such a claim is
“completely false.” Interestingly, Polgar does not dispute this fact
under oath. How can Marnell
state that this charge is “completely false”?2 Marnell has provided no
evidence showing that he
has personal knowledge of the underlying facts regarding this
“completely false charge.”
Marnell did not even provide the specific public postings that were
allegedly made.

5. Marnell also alleges that Lafferty “spread these vicious lies.”
Marnell again fails
to state exactly what specific “lies” that Lafferty allegedly made.
Marnell does not explain how
he or she knows that such facts were not opinions and/or were “lies.”
Marnell simply makes a
conclusory opinion and/or unsubstantiated opinion regarding such facts,
and all such statements
should not be proper evidence. Regarding alleged comments made to media
reporters, what
exactly does Polgar contend Lafferty said? Polgar has not sued any
reporters claiming they
publicized defamatory comments.

6. In paragraph 7 of Plaintiff’s Response, Plaintiff states, “Part of
Plaintiff’s claims
arise from Defendant Lafferty making defamatory contacts to Texas Tech
University.” Plaintiff
does not attach an affidavit from any official at Texas Tech University
and/or from anyone else
with any firsthand personal knowledge of such a purported statement.
Lafferty vehemently
denies making any such statements. Marnell claims to have “witnessed Mr.
Lafferty bragging
online” how he contacted Texas Tech. Where is this alleged statement?
Plaintiff did not even
show the hearsay in hearsay statement itself to the Court. Just as
Plaintiff’s husband has
allegedly impersonated Sam Sloan and others, it is possible that Marnell
saw a “posting” by a
fake Brian Lafferty. The Court cannot even make this rudimentary
analysis as Plaintiff and/or
Marnell failed to attach any examples of any alleged statements.
Apparently, under Plaintiff’s
analysis, a Plaintiff could drag a non-resident to Texas based on an
affidavit from someone that
fails to explain how he has personal knowledge.

7. Simply put, unlike several other defendants named in this action,
Lafferty was not
personally served with process in Dallas last August. Plaintiff labors
under the mistaken legal
premise that because a majority of defendants were personally served in
Texas, personal
jurisdiction should somehow attach to Lafferty absent any other basis
for personal jurisdiction.

8. To establish personal jurisdiction over Lafferty, Polgar must plead
that improper
statements were made by Lafferty targeted toward a Texas resident, in
this case, Polgar. Because
Lafferty has placed before the Court an affidavit contesting personal
jurisdiction, Polgar has the
burden of pleading with specificity the exact statement(s) alleged to be
a basis for personal
jurisdiction, where it was made, to whom it was made, and when it was
made. Polgar has totally
failed to meet this burden. She has not even submitted an affidavit of
her own supporting her
jurisdictional claims. Rather, she has submitted the affidavit of a
non-party who can hardly even
be termed a “witness” in this matter. The affidavit of Marnell is
replete with bald, conclusory
statements and allegations. It contains no facts, no specific words or
statements upon which this
court may reasonably establish personal jurisdiction over Lafferty. As
such, Lafferty has found
it difficult to even frame a response to this affidavit and Polgar's
complaint. Regardless, this
Court should not exercise jurisdiction over Lafferty.

II. Other reasons exist to grant Defendant’s 12(b)(2) and/or 12(b)(3)

9. In response to Defendant’s motion to dismiss pursuant to Federal Rule
of Civil
Procedure 12(b)(2) for lack of personal jurisdiction, Plaintiff may also
be arguing that Defendant
has purposefully directed activities at residents in Texas in that he
has conspired with persons
who allegedly did bad acts in Texas.3 However, Plaintiff fails to cite a
single case in support of
such a theory, a theory that has been expressly rejected by the Texas
Supreme Court at least
twice. See National Industrial Sand Ass’n v. The Honorable Jay Gibson,
897 S.W.2d 769 (Tex.
1995); see also Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434,
438 (Tex. 1982).

10. In National Industrial Sand Ass’n, plaintiffs’ sole basis for
long-arm jurisdiction
was that the defendant had conspired with the resident tortfeasors. In
this case, Plaintiff has not
presented any evidence of any specific alleged defamatory statement.4 As
the National
Industrial Sand Ass’n court pointed out, conspiracy as an independent
basis for jurisdiction is
distracting from the ultimate due process inquiry, which is whether the
out-of-state defendant’s
contact with the forum state was such that it should reasonably
anticipate being hauled into court
there. National Industrial Sand Ass’n, 897 S.W.2d at 773 (citing
Althouse, The Use of
Conspiracy Theory to Establish in Personam Jurisdiction: A Due Process
Analysis, 52 Fordham
L.Rev. 234, 252 (1983)). In short, unless Plaintiff can demonstrate that
Defendant’s activities
individually5 subject him to the forum state’s jurisdiction, a
conspiracy theory, standing alone, is
a meaningless intellectual exercise. See National Industrial Sand Ass’n,
897 S.W.2d at 773
(stating “to comport with due process, the exercise of long-arm
jurisdiction over a defendant
‘must rest not on a conceptual device but on a finding that the
non-resident, through his
relationship with another, has “purposefully avail[ed him]self of the
privilege of conducting
activities with the forum State,”’” Id. at 252 (quoting Worldwide
Volkswagen Corp. v. Woodson,
444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980)). As the
United States Supreme
Court made clear in Rush v. Savchuk, it is the contacts of the
Defendant, himself, that are
determinative and Plaintiff has failed to allege any specific contacts
this Defendant had with the
forum state. Thus, this Court should dismiss the case and/or transfer
the case under 12(b)(2)
and/or 12(b)(3).

III. Exercising jurisdiction over Defendant would offend traditional
notions of fair play
and substantial justice.

11. Plaintiff has sued Defendant, a former administrative law judge for
the City of New
York, who now lives in Massachusetts. As seen by Defendant’s affidavit
attached to his motion,
Defendant has minimal contacts with Texas. Defendant is different from
the first eleven Defendants
as Defendant did not come to Texas for a tournament and/or the delegates
meeting. Defendant was
not personally served in Texas. Thus, Defendant should not be treated as
other defendants for
jurisdictional purposes. Indeed, Plaintiff presented no authority that
because some defendants did
not contest jurisdiction, that Lafferty cannot contest jurisdiction.

12. If a non-resident defendant does not do actions to subject him to
jurisdiction in
Texas, it is his constitutional right not to have to defend himself in
Texas. Plaintiff’s decision to
incur fees in suing Lafferty can be remedied by nonsuiting her claims
against him. Just because
Plaintiff decided to sue so many defendants, such a choice should not be
held against Lafferty.
Although Lafferty has presently retained the same counsel, he should
have the right to retain
counsel of his choice in his jurisdiction.

13. Plaintiff makes the conclusory statement that “all defendants
directed their bad acts
towards persons and entities in Lubbock, Texas” in paragraph 5 of her
Response. However,
Plaintiff has steadfastly refused to provide specific examples of how,
when and where particular
Defendants allegedly did improper acts. But for Plaintiff knowing many
of the Defendants would
be coming to a chess tournament and meeting in Dallas, Texas, and
getting personal service over
many defendants while at that meeting, Plaintiffs likely would not have
gotten personal jurisdiction
over the other Defendants (and Defendants’ attendance at this meeting
could not have caused
damages to Plaintiff as Plaintiff had already filed her lawsuit prior to
the meeting occurring). For all
of these additional reasons, Defendant’s Motion to Dismiss should be

IV. Plaintiff failed to show that it is “plausible” that she will be
able to recover against
this particular Defendant based on the facts she alleged in her pleading.

14. Plaintiff filed suit against fifteen different defendants, and
Plaintiff still refuses to
specifically identify facts that would show specific liability regarding
each particular defendant.
For example, Plaintiff claimed in her Original Petition, “Each of the
above-named defendants
has caused negative telephone calls and contacts to be made to the
offices of the President,
Chancellors and Provosts of Texas Tech University in an effort to
destroy and cease Polgar’s
participation in the SPICE program and perhaps the very existence of the
SPICE program itself.”
See Plaintiff’s Original Petition, page 10. This is a conclusory
statement. Nowhere in Plaintiff’s
Original Petition does Plaintiff state how, when, and where this
particular Defendant allegedly
did such improper acts. It appears that under Plaintiff’s theory,
Plaintiff could sue one thousand
defendants and not be required to particularly plead facts regarding
each specific defendant other
than to claim some sort of global conspiracy. If this were truly the
standard, state and federal
courts could be inundated with lawsuits with many defendants. If
Plaintiff has specific facts
showing that a specific defendant allegedly did as Plaintiff is
claiming, Plaintiff should have
made such specific factual allegations. Plaintiff chose to sue fifteen
different defendants, and
Plaintiff needs to let each defendant know why he, she or it was sued.

15. As Plaintiff correctly stated in the Twombly case, a claim cannot
simply be
conceivable, but must be “nudged … across the line from conceivable to
plausible.” See Bell Atl.
Corp v. Twombly, 127 S. Ct. 1955, 1960 (2007). While it is true that it
is “conceivable” that all
fifteen defendants could have made contacts to Texas Tech University
intending to harm
Plaintiff and succeeded in harming Plaintiff, based on Plaintiff’s
petition, Plaintiff has not
demonstrated that it is “plausible” because Plaintiff has alleged no
specific facts demonstrating that
each defendant took specific actions to allegedly harm Plaintiff.6
Because Plaintiff has not cited
specific facts to support claims against this particular defendant,
Plaintiff’s petition has not
demonstrated that it is “plausible” that this specific defendant truly
did such alleged improper acts.

16. Plaintiff also confuses the standard a court uses in deciding to
dismiss a case. It is
true that Plaintiff needs to only plead a “short and plain statement” of
the facts. However, while
it is true that Plaintiff provided many, many specific and detailed
facts about herself and her
supposed wonderful reputation, Plaintiff’s pleading lacks any specific
factual allegations
regarding what each defendant allegedly did and/or what specific
improper actions Plaintiff is
alleging were done by each defendant. Simply put, each defendant has a
right to know what he,
she and/or it did wrong in this matter.

V. Plaintiff’s pleading failed to properly provide specific facts
supporting each material
element of each specific cause of action she has alleged against this

17. In Plaintiff’s Response, Plaintiff again fails to state what
specific alleged
defamatory statements were made by this particular defendant. Instead,
Plaintiff may again be
claiming that the “defamatory statements made by defendants are
contained in electronic form in
archives controlled by Defendants; therefore, Plaintiff’s ability to
state Defendant’s defamatory
statements ‘specifically’ is dependant on her access to these archives.”
If Plaintiff did not have
facts to support her claims, why did Plaintiff file this lawsuit? Is
Plaintiff’s lawsuit one big
fishing expedition causing harm to all of these Defendants? Again,
Plaintiff provides no specific
facts to support her claims.

18. As stated by the First Circuit Court of Appeals, the threshold for
stating a claim
may be low, but it is real. See Podiatrist Ass’n v. La Cruz Azul de
P.R., Inc., 332 F.3d 6, 19 (1st
Cir. 2003). The First Circuit explained that the complaint must
therefore set forth factual
allegations, either direct or inferential, respecting each material
element necessary to sustain
recovery under some actionable legal theory. Again, what did this
particular defendant allegedly
do to defame Plaintiff?8

VI. Plaintiff cannot be allowed to make contradicting arguments in
separate but
ongoing lawsuits and this court should hold Plaintiff accountable for
arguments she
is making to various courts.

19. This court should also not allow Plaintiff to play fast and loose
with making
contrary arguments in ongoing federal court proceedings. Attached as
Exhibit A is a copy of
Plaintiff’s Motion to Dismiss she filed in the Parker matter. See Civil
Action No. 08-00829;
Gordon Roy Parker v. Samuel H. Sloan, et al.; in the United States
District Court for the Eastern
District of Pennsylvania. Defendant requests that this court take
judicial notice of this other

20. In the Parker case, Polgar was faced with negligence and gross
negligence claims
being brought against her (Plaintiff’s husband was sued in the Parker
case as well). See Exhibit
A, page 20. In the Parker case, Polgar (Plaintiff in this case) stated
that the Parker plaintiff
“must establish that [Polgar] owed plaintiff a duty, which was breached,
which caused injury and
that plaintiff actually suffered damage as a result thereof.” Polgar
also argued in the Parker case
that the Parker plaintiff “has failed to aver any duty that moving
defendants owed to plaintiff.
The two parties had no relationship to one another whatsoever. Absent a
duty, plaintiff’s
negligence claims fail as a matter of law.” See Exhibit A, page 21.
Similarly in this matter, this
Defendant has asked Polgar to establish facts supporting the claims
Polgar has brought against
this particular Defendant. Polgar should not be allowed to argue that
she has no duty to do so in
this matter when she has made the exact contrary argument in the Parker

21. Likewise, Polgar’s arguments in the Parker matter as to why a civil
claim should not be allowed to be pursued against her in the Parker
matter should be used
against her in this matter. Even more egregious, on page 22 of Exhibit
A, Polgar argues, “Mere
conclusory statements do not satisfy Rule 8 requirements to plead a
claim for civil conspiracy.”
In the Parker matter, Plaintiff argues that the Parker plaintiff did not
“aver what common
purpose the parties had or how they engaged in an unlawful act or
performed a lawful act by
unlawful means. In addition, there is no allegation of an overt act done
in pursuance of any
common purpose, nor any actual legal damage. As such, plaintiff’s
conspiracy claim fails to
state a viable claim against moving defendants.” Likewise, in this case,
Polgar has failed to
provide more than conclusory accusations against this particular
defendant, and Plaintiff has
failed to provide specific facts to support her claims.

22. What is also very frustrating for this particular defendant is that
Plaintiff has
refused to provide a single example of any defamatory statement
allegedly made by this
particular defendant. Instead, Plaintiff claims that there are
unspecified defamatory statements
“in electronic form.”10 In responding to the Parker complaint, Polgar
filed a motion to dismiss
and stated that Parker’s defamation claim should be dismissed as a
matter of law. Just as this
particular Defendant did in its motion to dismiss in this matter,
Polgar, in responding to the
Parker complaint, recited the elements of a defamation claim and argued
that Parker’s claims
should be dismissed because Parker had not provided facts to establish
all of the required
elements. See Exhibit A, page 23.
23. In the Parker case, the Parker plaintiff provided specific examples
of alleged
defamatory postings. Interestingly, Polgar and her husband did not
specifically deny that they
had made the internet postings in dispute. Instead, Plaintiff argued
that the case should still be
dismissed as the alleged defamatory statements were not truly
defamatory. More specifically,
Plaintiff argued as follows:
It is evident from the plaintiffs re-printing of the web postings of
originators referenced in the Mottershead report that these
‘publications’ are akin
to a cyber-bathroom stall graffiti in which sophomoric rants are
exchanged by
participants in blog postings which are likely read by no-one other than
creators. Such activity is called “Internet flaming” which, in some
quarters, has
acquired the status of a cyber-sport. See
Collectively viewed, the statements are not capable of defamatory
meaning because they do not objectively contain any factual content that a
reader would take seriously. While many of the postings are graphic and
perverse, the on-going discourse between the posters reflects that the
speakers, whoever they maybe, are engaged in hyperbole which is not
capable of defamatory meaning. See Savitsky v. Shenandoah Valley Publishing
Corp., 389 Pa. Super. 176,566 A. 2d 901 (1989); Wecht v. PG Publishing
Company, 353 Pa. Super. 493,510 A. 2d 769 (1986).
See Exhibit A, page 24 (emphasis added).11

24. Simply put, how can Plaintiff claim that she is allegedly being
defamed by this
particular Defendant by purported electronic communications when she has
taken the exact
contrary position in the Parker matter and has claimed that such
electronic communications
should not be considered defamatory as a matter of law.12 Even more
frustrating, Plaintiff has
refused to identify a single specific defamatory statement made by this
particular Defendant.

VII. Defendant’s Motion to Dismiss should be granted for other reasons.

25. Defendant also objects to Plaintiff’s argument that she be allowed
to plead
defamation based on private, unpublished statements in electronic
archives that Plaintiff cannot
specifically identify, and of which Plaintiff apparently has no
knowledge. Consequently, there is
no way for Plaintiff to be able to plead that such statements were false
and/or that they were
defamatory because Plaintiff simply does not know what they are. Again,
it appears that
Plaintiff is essentially embarking on a fishing expedition with no
evidence now, but hoping to
turn up evidence in discovery. While Plaintiff’s claims may be
conceivable, Plaintiff has not
established her claims are plausible as Plaintiff has declined to
provide any specific facts to
support her alleged claims.

26. In paragraph 13 of Plaintiff’s Response, Plaintiff tries to argue
statements relating
to both private and public matters, but Plaintiff failed to assert such
facts in the original
complaint. Consequently, Plaintiff should not be allowed to state such
facts and/or make such
arguments in Plaintiff’s Response. Plus, Polgar is a public figure under
New York Times Co. v.
Sullivan and its progeny. New York Times Co. v. Sullivan, 376 U.S. 254,
84 S. Ct. 710 (1964).
She must allege and prove actual malice on the part of the respective
defendants. She must not
only show that what was said/written about her is untrue, she must show
that it was publicized
with knowledge of its falsity or reckless disregard for the truth or
falsity of the statement. Polgar
has not only not done this, she has failed to even plead the words she
alleges are defamatory, by
whom they were published and where and when they were published. What is
outrageous is that
when called upon to state her cause of action on Defendants’ motions to
dismiss, she is
apparently claiming that she does not know the defamatory words
published because she has yet
to discover them. Thus, she has alleged defamation without knowing that
she has been defamed.

27. Plaintiff also argues in paragraph 15 that Plaintiff was allegedly
harmed as a
result of her involvement in the SPICE program and her alleged
“insurance benefits” allegedly
being adversely affected. However, at most, Plaintiff is offering a
non-denial. Defendant asks
this court to take judicial notice of the New York District Court Sam
Sloan proceeding. Sam
Sloan v. Hoainhan “Paul” Truong, et al., cause no. 1:07-cv-08537-DC, in
the United States
District Court for the Southern District of New York. In that court
proceeding, Polgar was not
denied any “insurance benefits.” Instead, this court can take judicial
notice of the fact that
Plaintiff, along with her husband, were provided separate counsel by the
USCF’s insurance
carrier in the Sam Sloan proceeding. In other words, even though there
were allegations that
Plaintiff and her husband were making defamatory comments regarding Sam
Sloan and others,
the USCF, through its insurance carrier, did not deny representation to
Plaintiff and/or her
husband. Instead, the USCF’s insurance carrier obtained different
counsel for Plaintiff, and
Plaintiff did not suffer any damages.13

28. Polgar has also not pled how she has been damaged regarding
Plaintiff’s other
claims. She is still employed by her employer. Plus, Polgar has not
provided any examples of
any job contract related business opportunity that has been lost due to
alleged improper
interference. Polgar has not pled any loss of income or treatment for
emotional distress.

VIII. Plaintiff’s claim against individuals in their personal capacities
should fail as a
matter of law.

29. In addition to suing the USCF, Plaintiff has sued four of the board
members, the
executive director and volunteers of the USCF in their personal
capacities and has sued the
USCF’s attorney (Kronenberger) in his personal capacity. Plaintiff does
not allege any facts that
would support an argument that the board members, the executive
director, volunteers or
USCF’s counsel acted outside of their professional capacities as board
members, executive
directors or attorney. Accordingly, the Court should dismiss claims
against the four USCF board
members, the executive director, the individual volunteers and counsel
Karl Kronenberger.
30. For all of the above stated reasons, this particular Defendant’s
Motion to Dismiss
should be granted by the court.

Respectfully submitted,
By: s/ William P. Huttenbach
William P. Huttenbach
Federal I.D. No. 21742
State Bar No. 24002330
Bank of America Center
700 Louisiana, 25th Floor
Houston, Texas 77002-2772
Telephone: (713) 223-5181
Telecopier: (713) 223-9319
Case 5:08-cv-00169-C Document 66 Filed 12/24/2008 Page 15 of 16
20080491.20080491/477106.2 16
Bill LaFont
State Bar No. 11791000
Brent Hamilton
State Bar No. 00796696
PO Box 1510
Plainview, Texas, 79073-1510
Telephone: (806) 293-5361
Telecopier: (806) 293-5366
I certify that at true and correct copy of the foregoing was served by
electronic mail by
the Clerk of the Court via the ECF system, to all parties of record on
December 24, 2008.
James L. Killion
Samantha P. Estrello
Killion Law Firm
PO Box 64670
Lubbock, Texas 79424-4670
Samuel H. Sloan
1664 Davidson Avenue
Apt. 1B
Bronx, NY 10453

Date: 27 Dec 2008 09:47:33
From: Mike Murray
Subject: Re: Reply to Polgar
On Sat, 27 Dec 2008 16:41:02 GMT, "B. Lafferty" < >

<snip >

Any SWAG on when the Court might rule on this ?

Date: 27 Dec 2008 17:58:54
From: B. Lafferty
Subject: Re: Reply to Polgar
Mike Murray wrote:
> On Sat, 27 Dec 2008 16:41:02 GMT, "B. Lafferty" <>
> wrote:
> <snip>
> Any SWAG on when the Court might rule on this ?

The court has issued an initial scheduling order that calls for joinder
of parties to be completed by March 15, 2009. I would think that Judge
Cummings will rule sufficiently before then to allow joinder if the case
isn't dismissed.