Not Legal Advice
There is evidence that Mr. Gaffney lawsuit is legally frivolous, filed in bad faith, and intended to harass Defendants. There is a statute in Mass. Gen. Law that authorizes a Court to award Sanctions (legal expenses) against an attorney or party who file a frivolous lawsuit.
Mr. Gaffney calling me a "race divider" in the 10-5-16 Worcester Telegram article is evidence that Mr. Gaffney knew before he filed his February 23, 2016 lawsuit that an elected official being called a "racist" was not defamation. The use of the term " race divider " by Mr. Gaffney infers that his lawsuit was wholly insubstantial and filed in bad faith.
Below is my Motion to Award Sanctions against Mr. Gaffney.
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COMMONWEALTH
OF MASSACHUSETTS
Worcester
Civil Superior Court ss
Docket
No. 16-0288-B
++++++++++++++++++++++++
Michael T. Gaffney
Plaintiff
V
Gordon T. Davis
InCity Times
Rosali Tirella
Defendants
+++++++++++++++++++++
MEMORANDUM
IN SUPPORT OF DEFENDANT DAVIS’
MOTION
FOR AWARD OF SANCTIONS
Facts
and Proceedings
A.
Facts
And Proceedings
Argument
The Court should award fees and expenses incurred by
the Defendant for the filing of as frivolous Complaint by the Plaintiff Gaffney.
B.
The Complaint was legally frivolous
C.
The Plaintiff proceeded in bad faith
The Court should award Defendant Davis twenty-three hundred
and fifty dollars ($2375.00) for fees and expenses.
Conclusion
CASES
DMITRIY TILMAN & others vs. DAVID O.
BRINK & another. [Note 2]
74
Mass. App. Ct. 845
February
4, 2009 - August 18, 2009
Suffolk
County
Present:
KANTROWITZ, GRAINGER, & SIKORA, JJ.
Practice, Civil, Frivolous action,
Attorney's fees. Boston Municipal Court.
In a civil action, a Boston
Municipal Court judge properly imposed a sanction of attorney's fees on the
plaintiffs' attorneys, where the record demonstrated that the suit was filed in
bad faith and without any viable factual basis [850-852]; however, the judge
did not have the authority to impose sanctions against the plaintiffs
themselves, where G. L. c.231, § 6F (which permits a "court" to award
reasonable attorney's fees and costs against any party, attorney, or litigant
whose claim or defense was wholly insubstantial, frivolous, and not advanced in
good faith), does not apply to the District Court or the Boston Municipal
Court, and where, although judges possess the inherent power to act as
necessary to secure the full and effective administration of justice, the
Legislature has made clear its intent to withhold authority from the District
and Municipal courts to impose attorney's fees against litigants [852-854].
GRAINGER, J., concurring in part and dissenting in part.
KENNETH
T. LYONS & another vs. GLOBE NEWSPAPER COMPANY & others. 415 Mass. 258
FACTS
AND PROCEEDINGS
A. Facts
and Proceedings
1. Defendant
Gordon T. Davis wrote a blog about the racist nature of the closing of a
Community Center (Mosaic) in a neighborhood with a significant population of
Black and Hispanic people. The thrust of the blog was that when community
people accept government money they put themselves at risk of attacks by
racists such as some City Councillors including Michael T. Gaffney, who
initiated an audit of Mosaic. Mr. Gaffney did not ask for the audit of any
organization run by White people. The blog entitled “The Bosses Money was
published in February 5, 2016.
The blog pointed out the prejudices
of several City Councillors. Based on
evidence the blog alleged that someone appeared at a Plaintiff Gaffney event in
blackface.
2. Under
agreement with InCity Times, Defendant Tirella rewrote parts of the blog and
republished the revision on February 6, 2016.
3. On
February 12, 2016 Defendant Davis brought a lawsuit against Turtleboy Sports for
defamation.
4. On
February 22, 2016 Mr. Gaffney was implicated in Worcester Magazine regarding
the writing of offensive electronic posts about a Latina City Councillor, Sarai
Rivera.
5. On
February 23, 2016 Mr. Gaffney filed this instant lawsuit against Defendant
Davis.
6. On
March 20, 2016 the Defendant Davis filed a motion to compel Answers to
Interrogatories.
7. In
June 2016 Mr. Gaffney met with Defendant Tirella and demanded that I be fired.
8. On
July 13, 2016 the Defendant Davis filed a second motion to compel Plaintiff to
provide Answers to Interrogatories.
9. On
August 11, 2016 the Defendant Davis again filed a motion to compel Answer to
Interrogatories.
10. On
September 9, 2016 the Plaintiff wrote an amended Complaint.
11. On October 4, 2016 the Plaintiff announces he
is dropping his case. (Exhibit 1)
ARGUMENT
The Court should award fees and expenses incurred by
Defendant Davis for the filing of as frivolous Complaint by the Plaintiff
Gaffney.
12. G. L. c.231, § 6F authorizes the
award of legal fees and expenses when all or substantially all of the opposing
party’s claims are wholly insubstantial or frivolous or not advanced in good
faith.
13. Rule 11 of the Federal Rules of
Civil Proceedings gives additional guidance.
“(b) Representations
to the Court. By presenting to the court a pleading, written
motion, or other paper—whether by signing, filing, submitting, or later
advocating it—an attorney or unrepresented party certifies that to the best of
the person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being
presented for any improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation;
(2) the claims,
defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or
for establishing new law;
(3) the factual
contentions have evidentiary support or, if specifically so identified, will
likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of
factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a lack of information. “
B.The Complaint Against Defendant Davis is legally frivolous.
14. The Complaint filed by the Plaintiff had only
one claim against Defendant Davis for which there is any evidence. That claim
is that Defendant Davis wrote a blog on February 5, 2016 in which he alleged
that someone went to an event, held by the Plaintiff, in blackface.
15. The Plaintiff had made NO other claim against
Defendant Davis in the original Complaint.
In his Amended Complaint the Plaintiff Gaffney infers and argues
that no one particular article written by the Defendant was defamatory. He
argues that all of the articles and blog should be taken as a group. Since
Defendant Davis only wrote one blog on February 5, 2016, the Plaintiff Gaffney
admits that Defendant Davis blog was not defamatory. Mr. Gaffney being a
lawyer, it is reasonable to assume that he knew of this flaw in logic when he
filed his original Complaint on February 23, 2016.
16. That blog of February 5, 2016 was not
defamatory based on the facts that it did not allege anything negative about
Mr. Gaffney personally or anything for which Mr. Gaffney is responsible. There
is no claim based on that single blog for which relief could be granted.
17. Mr. Gaffney is an elected governmental
official and he knows that Actual Malice applies. Mr. Gaffney has not provided any
evidence of Actual Malice by Defendant Davis. There is no Actual Malice, as
nothing negative was said about Mr. Gaffney in the February 5, 2016 blog
written by Defendant Davis.
18. The Plaintiff being a lawyer knew that the blog
written by Defendant Davis could not meet the standard for defamation of an
elected officials as the Constitution of the US and the Commonwealth protects
hyperbole or outrageous language that no reasonable reader could believe when
used in a political dispute. This is seen
in KENNETH
T. LYONS & another vs. GLOBE NEWSPAPER COMPANY & others. 415 Mass. 258
“That principle unquestionably excludes from defamation
liability not only statements of rhetorical hyperbole -- the type of speech at
issue in the Bresler-Letter Carriers-Falwell cases -- but
also statements clearly recognizable as pure opinion because their factual
premises are revealed. . . . Both
types of assertions have an identical impact on readers -- neither reasonably
appearing factual -- and hence are protected equally under the principles
espoused in Milkovich." (Emphasis supplied; citation omitted.) Phantom
Touring, Inc. v. Affiliated Publications, Inc., 953 F.2d 724, 731 n. 13 (1st
Cir.), cert. denied, 112 S. Ct. 2942 (1992). See The Supreme Court -- Leading
Cases, 104 Harv. L. Rev. 129, 219, 223-224 (1990) (Because the criteria used by
lower courts to
distinguish fact from opinion are consistent with Milkovich, the law of defamation will
remain essentially unchanged).
Moreover, the rule protecting expressions of opinion based
on disclosed or assumed nondefamatory facts is by now an integral part of our
common law. See Fleming v. Benzaquin, 390 Mass. 175 , 187 (1983). See also Pritzker v.
Brudnoy, 389 Mass. 776 , 778 (1983). While we have traced the
"constitutional roots" of this rule to the First Amendment, e.g.
Myers, supra at 338, such constitutional underpinning may be found also in art.
16 of our Declaration of Rights. "From the fact that we rest [a] decision
wholly upon the Federal Constitution and its construction by the Supreme Court
of the United States no inference should be drawn that the Declaration of
Rights of the Constitution of this Commonwealth is less capable of protecting
the essentials of freedom of speech, of the press, and of assembly than is the
Federal Constitution. See arts. 16 and 19." Commonwealth v. Gilfedder, 321 Mass. 335 , 343 (1947). Our cases protect
expressions of opinion based on disclosed information because we trust that the
recipient of such opinions will reject ideas which he or she finds unwarranted
by the disclosed information. See note 5, supra. The constitutional principle
on which our cases rely was articulated by Justice Holmes many years ago…”
19. The Plaintiff admits that no reasonable
reader would believe the blog of February 5, 2016 in his Amended Complaint. In
his Amended Complaint the Plaintiff states that no one could believe the story
about the blackface as there are so many cameras and video recorders
everywhere.
C.Plaintiff Proceeded in Bad Faith
21. The Plaintiff admits his
animus for Defendant Davis in his Amended Complaint in which he calls Defendant
Davis a “race divider”. In the Amended Complaint the Plaintiff implies that he
held this animosity towards the Defendant Davis from a time before the original
Complaint of February 23, 2016 was written.
22. The Plaintiff again calls the
Defendant a “race divider” in a Worcester Telegram newspaper article (10-5-16).
The Plaintiff use of this phraseology infers that the Plaintiff case is wholly insubstantial. The Plaintiff’s
claim that being called a “racist” is defamatory is proven to be pretext and
bad faith as he now uses against Defendant Davis the same terms. (Exhibit 1)
22. The temporal proximity of the
Plaintiff’s original complaint (2-23-16) and the Defendant’s Complaint against
Turtleboy (2-12-16) is evidence of retaliation and harassment by Plaintiff. The
Plaintiff has had a business relationship with Turtleboy. (Exhibit 2)
23. The temporal proximity of the
Plaintiff original complaint (2-23-16) and a newspaper article in Worcester
Magazine implicating the Plaintiff in offensive and false electronic posts
against City Councillor Sarai Rivera is evidence of the Plaintiff’s lawsuit
being filed to divert attention from his apparent misconduct as a City
Councillor. (Exhibit 3)
24. The Plaintiff Gaffney has
attempted to bully Defendant Tirella into firing Defendant Davis is evidence of
bad faith. The termination of Defendant Davis is not a form of relief for the
Plaintiff in this case nor is it sought in the Complaints. (Exhibit 4)
25. The Plaintiff Gaffney has
sought one million dollars in damages, but has not provided any evidence of any
damages whatsoever. The one million dollar amount is an attempt to harass
Defendant Davis and stifle his freedom of expression on issues important to the
City of Worcester.
26. The Plaintiff has not
provided any evidence that a single person thinks less of him in any capacity.
The Plaintiff has not lost an election nor has shown a reduction in popularity.
27. The Plaintiff has not
provided any evidence of emotional anguish. He said in discovery that he has
not sought any professional attention for mental anguish.
28. The Plaintiff was contemptuous
of the Court proceedings regarding Discovery. The Defendant Davis had to file
at three Motions to Compel. The Plaintiff has not complied with any of them.
28. The Defendant Davis works as
an Advocate in regulatory agencies. His hourly fee is $50.00. The hours for his
defense amounts to $2375.00. There are ancillary incurred expense under
$200.00.
Conclusion
The Defendant Davis respectfully
ask the Court to sanction the Plaintiff and award fees and expenses to
Defendant Davis.
Respectfully submitted,
Gordon T. Davis
Pro Se Defendant
