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Date: 19 Nov 2007 11:07:23
From: samsloan
Subject: William Brock's Lawyer changes his motion and deletes admission of
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LAW OFFICES OF PATRICK M. O'BRIEN
309 Elmore Street
Park Ridge, Illinois 60068
_____________
TELEPHONE: (847) 692-2320
E-MAIL: [email protected]
November 19, 2007
The Honorable Denny Chin
United States District Judge
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street, Room 1020
New York, New York 10007
Re: Sloan v. Truong, et al., No. 07 CV 8537 (DC)
Dear Judge Chin:
I represent defendant William Brock in the above-captioned lawsuit.
This letter is written to apprise the Court of my anticipated motion
to dismiss the case against Mr. Brock pursuant to Fed. R. Civ. P. 12(b)
(1) and 12(b)(2), and to request a pre-motion conference pursuant to
the Court's Individual Practice 2(A).
I intend to move to dismiss the case both for lack of subject-matter
jurisdiction and lack of personal jurisdiction. As to the first, the
Complaint does not explain what, if anything, is the substantive basis
for Sloan's claim against Brock. It appears to sound in defamation,
if anything. See Complaint =B6 62 ("defendants . . . have posted
thousands of times on the Internet accusations that Plaintiff is a
child molester, a pornographer and a purveyor of 'kiddie porn'").
That is of course a state, not federal, cause of action, and thus
provides no basis for federal-question jurisdiction.1
Nor has Sloan pled a basis for diversity jurisdiction, which it is
his burden to plead and prove. See Herrick Co. v. SCS
Communications, Inc., 251 F.3d 315, 322-23 (2d Cir. 2001). The
Complaint, far from pleading that complete diversity exists, suggests
that it does not. Sloan pleads that he resides in New York, and that
defendant William Goichberg resides in both New York and California.
Complaint =B6=B6 10, 22. If Sloan and Goichberg are both "citizens" of
New York (the statutory term, 28 U.S.C. =A7 1332, which does not equate
to "residence," see Franceskin v. Credit Suisse, 214 F.3d 253, 255-56
(2d Cir. 2000) (collecting cases)), then the Court lacks diversity
jurisdiction, as well.
I now turn to personal jurisdiction. The lack of complete diversity
may be curable if Goichberg is determined to be a California resident
or Sloan dismisses him as a defendant. The lack of personal
jurisdiction over Mr. Brock is not. As such, it is appropriate to
dismiss the case against Brock on the basis of lack of personal
jurisdiction. See Ruhrgas AG v. athon Oil Co., 526 U.S. 574,
587-88 (1999); Cantor Fitzgerald L.P. v. Peaslee, 88 F.3d 152, 155 (2d
Cir. 1996).
On a Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction, the plaintiff has the burden of showing that the court
has jurisdiction over the defendant. Grand River Enters. Six Nations
v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005); In re Magnetic Audiotape
Antitrust Litigation, 334 F.3d 204, 206 (2d Cir. 2003). "'In order to
survive a motion to dismiss for lack of personal jurisdiction, a
plaintiff must make a prima facie showing that jurisdiction exists.'"
Best Van Lines v. Walker, 490 F.3d 239, 242 (2d Cir. 2007) (quoting
Thomas v. Ashcroft, 470 F.3d 491, 495 (2d Cir. 2006)). Sloan's case
against Brock is controlled by the Second Circuit's recent decision in
Best Van Lines. As in that case, the defendant's alleged defamatory
statements were posted to the Internet from a Midwestern state, not
New York, and there is accordingly no basis for personal jurisdiction.
As the Complaint itself indicates, Brock is a citizen of Illinois,
not New York. See Complaint =B6 35 (pleading that Brock "is a Chicago
CPA residing in Chicago," is "Past President of the Illinois Chess
Association," his "CPA office [is] in the Chicago Loop," and his
address is "230 West Monroe, Suite 330, Chicago, Illinois
60606-4701"). I intend to submit Mr. Brock's affidavit, which will
show that he has been a citizen and resident of Illinois for the past
30 years, and has never been a citizen or resident of New York.2
Brock's only arguably relevant connection to New York is that he
posted on the Internet statements about Sloan that presumably could be
accessed in New York (or anywhere else in the world). See Complaint
=B6=B6 62-63. Brock's affidavit will establish that he made all such
posts from his computers located in Chicago, Illinois.
It is well-settled that a defendant's acts of posting on the
Internet, from a state other than New York, defamatory allegations
about a person do not give rise to personal jurisdiction over the
defendant in New York. This is definitively established by the Second
Circuit's recent controlling decision in Best Van Lines. There, the
Second Circuit, affirming a decision by Judge Lynch of this Court,
held that an Iowa resident's posting to the Internet of defamatory
information about the plaintiff, a New York-based moving company, did
not give rise to personal jurisdiction over the defendant in New
York. The Court noted that New York's long-arm statute expressly
exempts causes of action for defamation of character from the
provisions of its long-arm statute pertaining to "commission of a
tortious act" within or without the state of New York. Id. at 244-45
(citing 35 N.Y. C.P.L.R. =A7=A7 302(a)(2), 302(a)(3)).
As to section 302(a)(1) of the C.P.L.R., relating in pertinent part
to "transact[ing] any business within the state," 35 N.Y. C.P.L.R. =A7
302(a)(1), the Second Circuit noted that federal district courts in
New York have consistently held that "the posting of defamatory
material on a website accessible in New York does not, without more,
constitute 'transact[ing] business' in New York for the purposes of
New York's long-arm statute." Best Van Lines, 490 F.3d at 250-51
(collecting cases). Following these cases, the Second Circuit held
that the defendant's posting from Iowa of defamatory statements about
plaintiff on the "Black List Report" on his website, his defamatory
answer to a user's question about the plaintiff, and his solicitation
of donations did not give rise to personal jurisdiction over the
defendant in New York. Id. at 253-55.
There is no legitimate basis upon which Sloan can distinguish Best
Van Lines from this case. If anything, the lack of personal
jurisdiction over Brock here follows a fortiori from Best Van Lines.
The defendant in that case operated an Internet business, a not-for-
profit website that provided information about household movers and
solicited donations from the public. Id. at 240, 254-55. Here, Sloan
does not contend that Brock operated an Internet business, but rather
that he has posted defamatory statements about Sloan on public forums
operated by the USCF and others. Complaint =B6=B6 62-63. It is thus even
more difficult than in Best Van Lines to contend that Brock's posting
of defamatory statements about Sloan constituted "transacting
business" in New York for purposes of the state's long-arm statute.
I believe that these arguments compel the dismissal of the case
against Mr. Brock, and accordingly request that the Court schedule a
pre-motion conference. Please contact Mr. Brock's local counsel,
Arthur M. Handler of Handler & Goodman LLP, 805 Third Avenue, New
York, New York 10022, (646) 282-1900, to schedule the pre-motion
conference.
Respectfully submitted,
Patrick M. O'Brien
cc: Samuel H. Sloan
Jeremy Brown, Esq.
Scot M. Graydon, Esq.
Arthur M. Handler, Esq.
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Date: 20 Nov 2007 14:41:47
From:
Subject: Re: William Brock's Lawyer changes his motion and deletes admission
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On Nov 19, 2:43 pm, [email protected] wrote:
> > >Please contact Mr. Brock's local counsel,
> > > Arthur M. Handler of Handler & Goodman LLP, 805
> > >Third Avenue, New York, New York 10022, (646)
> > >282-1900, to schedule the pre-motion conference.
> >And why is the attorney making complex legal arguments in a letter and
> >not a MOTION?
>
> Probably because the attorney writing the letter is doing it as a
> "friend of the court" and not as Brock's attorney, as is evident from
> the fact that Brock's legal counsel is named Arthur Handley, not
> Patrick O'Brien.
>
> I would think this obvious.
>
> Regards,
> Mike Petersen
It is pretty oblivious that the attorneys representing the
"defendants" want to generate as much legal fees as possible, and have
the group
of lawyers come after Sloan. When lawyers write this much, the goals
are economic, not legal.
Fuck all of this formalism: they want to rule 11 a judgment against
Sloan, and get the court
to order Sloan cease PRO SE filings in the Southern Distinct of New
York.
To do this, you need lots of documentation to the judge.
There is no reason for this kind of crap, except to punish Justice
Sloan for this filing to gain attention. In Saudi Arabia, they will
whip you for this.
cus Roberts
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Date: 19 Nov 2007 12:43:45
From:
Subject: Re: William Brock's Lawyer changes his motion and deletes admission
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> >Please contact Mr. Brock's local counsel,
> > Arthur M. Handler of Handler & Goodman LLP, 805
> >Third Avenue, New York, New York 10022, (646)
> >282-1900, to schedule the pre-motion conference.
>And why is the attorney making complex legal arguments in a letter and
>not a MOTION?
Probably because the attorney writing the letter is doing it as a
"friend of the court" and not as Brock's attorney, as is evident from
the fact that Brock's legal counsel is named Arthur Handley, not
Patrick O'Brien.
I would think this obvious.
Regards,
Mike Petersen
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Date: 19 Nov 2007 16:04:41
From: Ray Gordon, creator of the \pivot\
Subject: Re: William Brock's Lawyer changes his motion and deletes admission of being a child molester
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>> >Please contact Mr. Brock's local counsel,
>> > Arthur M. Handler of Handler & Goodman LLP, 805
>> >Third Avenue, New York, New York 10022, (646)
>> >282-1900, to schedule the pre-motion conference.
>
>
>>And why is the attorney making complex legal arguments in a letter and
>>not a MOTION?
>
> Probably because the attorney writing the letter is doing it as a
> "friend of the court" and not as Brock's attorney, as is evident from
> the fact that Brock's legal counsel is named Arthur Handley, not
> Patrick O'Brien.
First line of the letter: "I represent defendant William Brock" The other
attorney is local counsel, but that letter came from an attorney.
It was a thinly-veiled motion disguised as a letter and an attempt to get
Sloan in front of the judge without the benefit of a formal hearing.
What exactly is there to "discuss?" He's making legal arguments and asking
for dismissal. That's a motion. I wonder what the judge's policy is on
"letter/motions." Each one is different. Some judges just kick the letter
and tell the attorney to file a motion, while others just convert it to a
motion and give the other side time to reply.
> I would think this obvious.
Obvious in what way? The attorney writing the letter claimed to represent
Mr. Brock in Chicago. As he's probably not licensed in NY, he needs NY
counsel on the case, and to apply pro hac vice ("for this case") to the NYC
court.
--
Ray Gordon, The ORIGINAL Lifestyle Seduction Guru
http://www.cybersheet.com/library.html
Includes 29 Reasons Not To Be A Nice Guy
Ray's new "Project 5000" is here:
http://groups.yahoo.com/group/project-5000
Don't rely on overexposed, mass-keted commercial seduction methods which
no longer work.
Thinking of taking a seduction "workshiop?" Read THIS:
http://www.dirtyscottsdale.com/?p=1187
Beware! VH-1's "The Pickup Artst" was FRAUDULENT. Six of the eight
contestants were actors, and they used PAID TARGETS in the club. The paid
targets got mad when VH-1 said "there are no actors in this club" and ruined
their prromised acting credit. What else has Mystery lied about?
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Date: 19 Nov 2007 15:20:08
From: Ray Gordon, creator of the \pivot\
Subject: Re: William Brock's Lawyer changes his motion and deletes admission of being a child molester
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>That is of course a state, not federal, cause of action, >and thus provides
>no basis for federal-question
> jurisdiction.1
No, but diversity jurisdiction sounds right. What's the attorney doing
writing a LETTER to the court? The judge should kick that and tell him to
file an actual motion. He's looking for a free shot at dismissal here..
>Nor has Sloan pled a basis for diversity jurisdiction, >which it is his
>burden to plead and prove. See Herrick
>Co. v. SCS Communications, Inc., 251 F.3d 315,
>322-23 (2d Cir. 2001). The Complaint, far from ?>pleading that complete
>diversity exists, suggests
>that it does not. Sloan pleads that he resides in New >York, and that
>defendant William Goichberg resides in >both New York and
>California.Complaint �� 10, 22. >If Sloan and Goichberg are both
>"citizens" of
>New York (the statutory term, 28 U.S.C. � 1332,
>which does not equate to "residence," see Franceskin
>v. Credit Suisse, 214 F.3d 253, 255-56
>(2d Cir. 2000) (collecting cases)), then the Court lacks >diversity
>jurisdiction, as well.
I can see it now: Derek Jeter quotes Sloan in his tax case to prove he's not
in NYC as a resident, and NY quotes sloan claimng he is.
>I now turn to personal jurisdiction. The lack of
>complete diversity
>may be curable if Goichberg is determined to be a
>California resident or Sloan dismisses him as a
>defendant. The lack of personal
>jurisdiction over Mr. Brock is not. As such, it is
>appropriate to dismiss the case against Brock on the
>basis of lack of personal jurisdiction. See Ruhrgas AG
>v. athon Oil Co., 526 U.S. 574,
>587-88 (1999); Cantor Fitzgerald L.P. v. Peaslee, 88
>F.3d 152, 155 (2d Cir. 1996).
It's also approrpiate to dismiss cases by MOTION, not LETTER. Reason being
one gets to respond to a motion.
(I AM NOT A LAWYER FUCK OFF YOU BAR ASSOCIATION FASCISTS).
>On a Rule 12(b)(2) motion to dismiss for lack of
>personal jurisdiction, the plaintiff has the burden of
>showing that the court has jurisdiction over the
>defendant. Grand River Enters. Six Nations
>v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005); In re
>Magnetic Audiotape Antitrust Litigation, 334 F.3d
>204, 206 (2d Cir. 2003). "'In order to
>survive a motion to dismiss for lack of personal
>jurisdiction, a plaintiff must make a prima facie showing
>that jurisdiction exists.'" Best Van Lines v. Walker, 490
>F.3d 239, 242 (2d Cir. 2007) (quoting Thomas v.
>Ashcroft, 470 F.3d 491, 495 (2d Cir. 2006)). Sloan's
>case against Brock is controlled by the Second
>Circuit's recent decision in Best Van Lines. As in that
>case, the defendant's alleged defamatory
>statements were posted to the Internet from a
>Midwestern state, not New York, and there is
>accordingly no basis for personal jurisdiction.
>As the Complaint itself indicates, Brock is a citizen of
>Illinois, not New York. See Complaint � 35 (pleading
>that Brock "is a Chicago CPA residing in Chicago," is
>"Past President of the Illinois Chess
>Association," his "CPA office [is] in the Chicago
>Loop," and his address is "230 West Monroe, Suite
>330, Chicago, Illinois 60606-4701"). I intend to
>submit Mr. Brock's affidavit, which will show that he
>has been a citizen and resident of Illinois for the past
>30 years, and has never been a citizen or resident of
>New York.2
Note that the attorney could hvae DONE all that rather than said he was
going to do it in a LETTER that Sloan can't respond to as if it were a
motion, yet the "letter" contains all these LEGAL ARGUMENTS.
You can be sure if Sloan had an attorney that a motion, not a letter, would
have been filed.
>Brock's only arguably relevant connection to New
>York is that he posted on the Internet statements about
>Sloan that presumably could be accessed in New York
>(or anywhere else in the world). See Complaint
>�� 62-63. Brock's affidavit will establish that he made
>all such posts from his computers located in Chicago,
>Illinois.
>It is well-settled that a defendant's acts of posting on
>the Internet, from a state other than New York,
>defamatory allegations about a person do not give rise
> to personal jurisdiction over the
> defendant in New York. This is definitively
> established by the Second Circuit's recent controlling
> decision in Best Van Lines. There, the
> Second Circuit, affirming a decision by Judge Lynch of
>this Court, held that an Iowa resident's posting to the
> Internet of defamatory information about the plaintiff, a
>New York-based moving company, did
>not give rise to personal jurisdiction over the defendant
>in New York. The Court noted that New York's long-
> arm statute expressly exempts causes of action for
> defamation of character from the
>provisions of its long-arm statute pertaining to
> "commission of a tortious act" within or without the
> state of New York. Id. at 244-45 (citing 35 N.Y.
>C.P.L.R. �� 302(a)(2), 302(a)(3)).
>As to section 302(a)(1) of the C.P.L.R., relating in
>pertinent part to "transact[ing] any business within the
>state," 35 N.Y. C.P.L.R. �302(a)(1), the Second
>Circuit noted that federal district courts in New York
>have consistently held that "the posting of defamatory
>material on a website accessible in New York does
>not, without more, constitute 'transact[ing] business' in
>New York for the purposes of New York's long-arm
>statute." Best Van Lines, 490 F.3d at 250-51
>collecting cases). Following these cases, the Second
>Circuit held that the defendant's posting from Iowa of
>defamatory statements about plaintiff on the "Black List
> Report" on his website, his defamatory answer to a
> user's question about the plaintiff, and his solicitation
> of donations did not give rise to personal jurisdiction
> over the defendant in New York. Id. at 253-55.
>There is no legitimate basis upon which Sloan can
>distinguish Best Van Lines from this case. If anything,
>the lack of personal jurisdiction over Brock here
>follows a fortiori from Best Van Lines.The defendant in
>that case operated an Internet business, a not-for-profit
>website that provided information about household
>overs and solicited donations from the public. Id. at
>240, 254-55. Here, Sloan does not contend that
>Brock operated an Internet business, but rather that he
>has posted defamatory statements about Sloan on
>public forums operated by the USCF and others.
>Complaint �� 62-63. It is thus even more difficult than
>in Best Van Lines to contend that Brock's posting
>of defamatory statements about Sloan constituted
>"transacting business" in New York for purposes of the
>state's long-arm statute.
> I believe that these arguments compel the dismissal of
>the case against Mr. Brock, and accordingly request
>that the Court schedule a pre-motion conference.
Isn't dismissal handled by MOTION? Sounds like someone's attorney wants to
get you in front of a judge without the benefit of due process.
(DISCLAIMER: I AM NOT AN ATTORNEY).
>Please contact Mr. Brock's local counsel,
> Arthur M. Handler of Handler & Goodman LLP, 805
>Third Avenue, New York, New York 10022, (646)
>282-1900, to schedule the pre-motion conference.
Gee, why didn't he just file the motion? What does he need the conference
for? And why is the attorney making complex legal arguments in a letter and
not a MOTION?
--
Ray Gordon, The ORIGINAL Lifestyle Seduction Guru
http://www.cybersheet.com/library.html
Includes 29 Reasons Not To Be A Nice Guy
Ray's new "Project 5000" is here:
http://groups.yahoo.com/group/project-5000
Don't rely on overexposed, mass-keted commercial seduction methods which
no longer work.
Thinking of taking a seduction "workshiop?" Read THIS:
http://www.dirtyscottsdale.com/?p=1187
Beware! VH-1's "The Pickup Artst" was FRAUDULENT. Six of the eight
contestants were actors, and they used PAID TARGETS in the club. The paid
targets got mad when VH-1 said "there are no actors in this club" and ruined
their prromised acting credit. What else has Mystery lied about?
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