Thursday, October 6, 2016

Sanctions Against a Frivolous Lawsuit



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

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