Of course this is not legal advice. Below is my opposition memo to the defendants' Motion to Dismiss. The motion had inaccuracies that construed to be out right lies. So the Memo has to correct those inaccuracies and show the Court that the Complaint meets the prima facie requirements (minimum requirements to go to trial)
COMMONWEALTH OF MASACHUSETTS
WORCESTER, SS
SUPERIOR COURT
C.A.
No. 1685CV00217 D
********************************
GORDON T. DAVIS, Plaintiff
Vs.
TURTLEBOY SPORTS INC.,
AIDEN KEARNEY,
Defendants
********************************
PLAINTIFF’S OPPOSITION MEMO TO
DEFENDANTS MOTION TO DISMISS
BACKGROUND
The
Plaintiff filed the instant Complaint against the Defendants on February 12,
2016 and the Complaint was served to both Defendants on February 19, 2016.
An Amendment
to the Complaint was allowed by the Court on March 3, 2016 after the Defendants
published an additional article in which the Plaintiff was asserted by the
Defendants to be “mentally unstable”, “senile”, and “crazy”. (Exhibit1)
This is a
case regarding the libeling of the Plaintiff by the Defendants via their
publication Turtle Boy Sports. The Defendants published that the Plaintiff is
“mentally unstable”, “senile”, and “crazy” The publications of false medical
status of the Plaintiff has cause a loss of clients and income to Plaintiff’s
Advocacy.
ISSUES PRESENTED BY
DEFENDANTS’ MOTION
A. Whether Defendants’ publication about
Plaintiff’s alleged medical condition constitutes a per se violation of State
defamation laws.
B. Whether Defendants’, prior to
Complaint, knowledge of Plaintiff’s status as a limited public figure warrants
Denial of Defendants’ Motion to Dismiss.
C. Whether Defendants’ publication about
Plaintiff as being “mentally unstable,” “senile,” and “crazy,” without factual
evidence to support those statements, constitutes a per se violation of State
defamation laws.
D. Whether the statements published by Defendants
that the Plaintiff is “mentally unstable,” “senile,” and “crazy,” constitute
actual malice.
RELEVANT LAWS
Actual malice is not necessarily proved in
terms of ill will or hatred, but is proved rather by a showing that the
defamatory falsehood was published with knowledge that it was false or reckless
disregard of whether it was false. New
York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964).
A motion to dismiss for
failure to state a claim may be allowed only if it appears, beyond doubt, that
the plaintiff can prove no facts in support of his claim that entitle him to
relief. Conley v. Gibson, 355 U.S. *201 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d
80 (1957).
The Plaintiff in the Argument
Section below has provided evidence to support his claims.
ARGUMENTS
Defendants’ publication about
Plaintiff’s alleged medical condition constitutes a per se violation of State defamation
laws.
1. The general tenor of the libel and at
least one sentence of the libel is found in the pleadings in the form of
Exhibit 2 of the Complaint and Exhibit 1 of the Amendment.[1] (Exhibit 2 of this Memo)
2. The general tenor can most easily be
seen in the entirety of the articles written and published by the Defendants.
Those articles have been included in their entirety in the Complaint and the
Amendment.
3. The precise wordings of the libelous
statements are found in the articles written and published by the Defendants
which are included in the pleadings as Exhibits. Court rules forbade the Plaintiff from
marking the Exhibits.
4. For this Opposition Memo the
Plaintiff has underlined the precise wording of the libel and other evidence
found in the Exibits. (Exhibit 2A)
5. The defense counsel has written in
her Motion to Dismiss that the Plaintiff’s Exhibits are means to determine
specific wording and context.[2]
6. The Plaintiff’s Exhibits are marked by Google
as being published on the Turtleboy Sports website. The Plaintiff provided this
information in his pleadings through his Exhibits. (Exhibit 3)
7. The approximate dates for each libel
are given in the pleadings. The dates are also found in the articles as seen in
the Exhibits. (Exhibit 4)
8. The Complaint and Amendment state
that the Defendants libeled the Plaintiff. The definition of libel includes
falsity.
9. Defense counsel has made an error.
There are three counts of libel in the Complaint. The first count was libel for
Defendants’ statement that the Plaintiff was “mentally unstable” and the second
count for November 2015 was libel for stating that the Plaintiff was
“senile”. The third count is the libel
that the Plaintiff is “crazy). Each count of libel is directly contrary to the
Plaintiff reputation as being a competent advocate.
10.
Defense
counsel is disingenuous when she states that the Defendants did not receive the
Exhibit for the Amendment.
11.
The
Plaintiff’s Amendment and its Exhibit are on file in this Court Clerk’s Office.
The Defendants’ published comments about the Exhibit they received with the
Amendment. (Exhibit 5)
Defendants’ knowledge of Plaintiff’s
status as a limited public figure warrants denial of Defendants’ motion to
dismiss.
12.
By
Defendants own stipulation found in their Motion to Dismiss, the omission by
the Plaintiff of his opinion regarding whether he is a limited public figure is
not a requirement for his prima facie Complaint of libel.[3]
13.
The
Defendants knew of the Plaintiff’s limited public figure status in 2014 as they
have published numerous articles about the Plaintiff. (Exhibit 6)
14.
There
is evidence that the Defendants knew that their statenebts about the
Plaintiff’s health were untrue before they wrote their libelous words. (Exhibit
3)
15.
The
Plaintiff’s Amendment pleads that the Plaintiff was libeled when the Defendants
stated that the Plaintiff was “mentally unstable, senile, and crazy”. The
Defendants’ counsel claims that these libels are not “facts”. Of course they
are not “facts” as they are libel.[4]
Defendant’s publication of Plaintiff
as “mentally unstable,” “senile,” and “crazy,” without factual evidence to
support those statements, constitutes a violation of State defamation
laws. In the alternative, the statements
published by Defendant that the Plaintiff is “mentally unstable,” “senile,” and
“crazy,” constitute malice in violation of State defamation law.
16.
The
Plaintiff claims that Defendant Kearney wrote the libelous articles in his
publication, Turtle Boy Sports. The Defendants have not denied that Defendant Kearny
wrote or published the libelous articles.
17.
There
is evidence that Mr. Kearney is employed by Turtle Boy Sports. (Exhibit 5)
18.
Defendant
Kearney has shown contempt for this Court when he recently published that the
Court process will not be able to discovery his connection to Turtle Boy
Sports, who are its writers, nor the entity Turtle Boy Sports. (Exhibit 7)
19.
It
appears the Defense counsel is aiding her Defendants in their contempt of this
Court by stating in her Motion that Turtle Boy Sports is not found in the Massachusetts
registry of Business and is not extant. The Exhibits in this Opposition Memo
are evidence of Turtle Boy Sports as a business entity. It sells advertisement and
clothing on line. (Exhibit 2)
CONCLUSION
For the reasons cited above the Defendants’ Motion to Dismiss should be
denied. The following is a summary.
a. The Plaintiff met the requirements of
pleadings by means of the Complaint and Amendment, but also by his reference in
the pleadings to his Exhibits which contained the tenor, precise words, dates,
and falsity.
b. There is evidence of actual malice.
c. The Defendants knew that Plaintiff
was a limited public figure before the filing of the Complaint. Being a limited
public figure is not grounds for dismissal.
d. The Plaintiff has provided evidence
in this Opposition Memo that Defendant Kearney is an employee of Turtle Boy Sports.
The statements by the defendants’ counsel that Mr. Kearney is not an employee is
not grounds for dismissal.
e. The Plaintiff has provided evidence
of the existence of the entity “Turtle Boy Sports “
The Plaintiff
respectfully asks the Court to Deny the Motion to Dismiss based on the evidence
above.
Should this
Court find the pleadings are not in compliance with Court rules, the Plaintiff
respectfully asks for leave of the Court to perfect his pleadings by means of
amendment.
Respectfully
submitted,
Gordon T.
Davis
Pro se
Plaintiff
CERTIFICATE OF
SERVICE
I, Gordon T.
Davis, pro se Plaintiff do here by certify that I have served the original and
true copy of the Opposition Memo to Defendants’ Motion to Dismiss by mean of
first class mail to their attorney at
Margaret M. Melican, Esq.
2 Foster St.
Worcester MA 01608
____________ ________
Gordon T.
Davis Date
Way to go, Gordon.
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