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.

=================================================

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

Seeing What Sticks to the Wall

Not legal advice

Seeing What Sticks to the Wall

Turtleboy

I am not a lawyer; my practice is in the regulatory agencies. I made an error in serving Turtleboy a subpoena. Although anyone over the age of 18 years can serve the subpoena, a party to the complaint can not serve the subpoena.  The second subpoena commanding Turtleboy to appear for a deposition was served by the Sheriff to Turtleboy’s new location in Holden.  The deposition is scheduled for November 2, 2016.  The subpoena is seen below as Exhibit 1.

Mr.  Gaffney

The Judge allowed Mr. Gaffney to amend his complaint. The amended complaint is qualitatively a different complaint than Mr. Gaffney’s first complaint filed in February 2016. There seems a sense of desperation by Mr. Gaffney. He seemingly is throwing everything into the amended complaint in the hope of something sticking.

First Mr. Gaffney has resorted to name calling. In his Amended Complaint I am called a “race divider”. Of course the name calling is not relevant to the case. This wrongful characterization could be intended by Mr. Gaffney to prejudice the Judge. The other possibility is that Mr. Gaffney has thin skin and is seeking retaliation.

Second my letter to the Board of Overseer was claimed to be defamatory. As Mr. Gaffney knows a complaint to the Board of Overseers is protected speech and therefore immaterial to the case.

Mr. Gaffney thirdly is upset that I intend to depose his wife. He has sworn under oath that his wife was negatively affected by the alleged defamation.

A fourth issue raised by Mr. Gaffney was my pointing out errors he made in his documents and thinking. Because Mr. Gaffney claims a million dollar in damages the accuracy of his work is material evidence whether his sit is frivolous.

In response to the Amended Complaint I have sent to the Court a new set of Answers corresponding to the items in Mr. Gaffney’s Amended Complaint. (Exhibit 2)

********************************************************

EXHIBIT 1

The Commonwealth of Massachusetts

Subpoena (Duces Tecum)

Worcester ss.

Worcester Superior Civil Court

Civil Action No. 16-0288 B

To: the Keeper of the Records:

 Turtleboy Digital Marketing LLC (Turtleboy)

You are hereby commanded, in the name of the Commonwealth of Massachusetts, to appear for Deposition and Duces Tecum on the 2^nd day of November, in the year 2016, at 10 o’clock am, and from day to day thereafter, until the action hereinafter named is heard by said Court, to give evidence (deposition) of what you know relating to an action then and there to be heard and tried between

Michael T. Gaffney, Plaintiff, and

Gordon T. Davis et al, Defendants,

Docket number 16-0288 B,

 You are further required to bring with you

all of the following documents in their media, including paper and electronic.

 The Deponent is required to bring the following records.

1.   ALL correspondences between Turtleboy and the Plaintiff, Michael T. Gaffney (hereinafter referred to as “Mr. Gaffney”). Please include invoices, receipts, and contracts as well any and all materials written by Mr. Gaffney and published or appearing in your publication.

2.   All correspondence between any Massachusetts agency and Turtleboy regarding Mr. Gaffney

3.   A copy of the article dated December 9, 2015, “Mosaic Mafia Family Structure”

4.   A copy of any and all publications, published materials or comments regarding the people whom Turtleboy claimed was in the Mosaic Mafia Family. The time period for these publications are from December 10, 2014 through present.

5.   The IP addresses of each and all commenter on the published materials found in item 4 above.

6.   The names of the authors and photographers for each publication and each published article relating to the people referenced in Item 4 above.

7.   A copy of Turtleboy’s incorporation documents.

8.    The names of all officers of Turtleboy from the time of its incorporation to present.

The questioning of the documents and your giving evidence shall take place at Real Time Court Reporting located at 9 Hammond St, Worcester MA 01610.

Hereof fail not, as your failure to appear as required will subject you to such pains and penalties as the law provides.

Dated at Worcester, the September 20, in the year 2016.

____________________________________

Gordon T. Davis, Pro Se Defendant

___________________                                                                                       Notary Public

***********************************************************

EXHIBIT2

Worcester Superior Court

225 Main Street

Worcester, MA 01608

Re:  Gaffney vs. InCity Times et al, Docket 16-0288 B

Request for Leave to Reply to Plaintiff’s Amended Complaint Date September 29, 2016

Dear Honorable Judge Tucker:

Pursuant to Superior Court Rule 9A (3), Defendant, Gordon T. Davis respectfully requests leave of this Court to file Answers to the Plaintiff’s Amended Complaint dated September 9, 2016. The Amendments to the Complaint are substantial and makes the Complaint qualitatively and materially different than the Complaint filed with Court in February 2016.

This reply is necessary as Plaintiff has served the Defendant with the Amended Complaint without the opportunity to either Answer or seek Dismissal or Oppose.

Defendant could not have anticipated the Amendments would substantially and qualitative change the Complaint filed in February 2016...

Therefore Defendant requests leave to properly Answer the Plaintiff’s Amended Complaint.

The Defendant Gordon T. Davis’ Answers to the Amended Complaint is enclosed.

Sincerely,

Gordon T. Davis

Pro Se Plaintiff

Cc: Michael T. Gaffney, Esq.

       Robert Scott, Esq.                                                                                                            

MR. GAFFNEY’S ERRORS CONTINUE

MR. GAFFNEY’S ERRORS CONTINUE

Mr. Gaffney’s string of legal errors continues. He has misinterpreted or misheard or attempted to deceive the Defendant Davis when he stated that he would not provide Answers to Interrogatories because Judge Tucker delayed the Discovery process. The events proved Mr. Gaffney in error.

As reported in an earlier blog, the Court on August 6, 2016 ordered Mr. Gaffney to answer my Interrogatories regarding his income and his relationship to Turtleboy.  On August 10, 2016 Mr. Gaffney refused to provide a date by which he would answer the Interrogatories. In response I filed a Motion with the Court on August 11, 2016 to compel Mr. Gaffney to provide a definite date on which he would provide his Answers.  (Exhibit 1 below)

As a rule the Answers are due within 30 days of the Court Order.  On September 6, 2016 I telephone Mr. Gaffney that his 30 days allowed by Court rules to answer the Interrogatories had passed and the Answers were past due. He was now in contempt of Court. (Exhibit 2).

Incredibly Mr. Gaffney responded that the Judge did not want him to answer the questions until after the ruling on Defendant Tirella’s Motion to Dismiss.

I attended the Hearing on Defendant Tirella’s Motion. The Judge said that he would clarified the issue of the Turtleboy Deposition. He did not say that he wanted to delay the Discovery process for Mr. Gaffney.

 

On September 14, 2016 the Judge contradicted Mr. Gaffney and ordered to answer the Interrogatories on or before October 7, 2016.

The Judge has not ruled on the Motion to Dismiss by Ms. Tirella at this time.

TURTLE BOY

In other developments on September 13, 2016 the Judge ruled that Turtleboy would not get a protective order and there would be no restriction on the deposition of Turtleboy.

==========================================================

Exhibit 1

                                                                                                                                                                                                                                                                                                                                                                                      COMMONWEALTH OF MASACHUSETTS

                                                                                                                                                                     WORCESTER,          SS                                                          

SUPERIOR COURT                                                                                                                                                                                                                                                                                                        

                                                                                                      16-0288 B

                                                          

********************************                                                                                                                                      

Michael Gaffney, Plaintiff                      *

                                                                     * 

                             Vs.                                   * 

                                                                     *

Gordon T. Davis                                       *                                                                                            InCity Times                                                *

DEFENDANT GORDON T. DAVIS’ MOTION TO COMPLE PLAINTIFF TO PROVIDE A DATE CERTAIN OR ESTIMATED DATE FOR HIS ANSWER TO COURT SELECTED INTERROGATORIES

The Pro Se Defendant Gordon T. Davis respectfully requests this Court to compel the Plaintiff Mr. Gaffney to provide a date certain in compliance with the Court Order by Judge Tucker re-answering the allowed Interrogatories

Background

1.    Judge Tucker on July 28, 2016 has ordered the Plaintiff to answer the allowed Interrogatories (Exhibit 1)

2.   On August 10, 2016 the Defendant Gordon T. Davis met in person with the Plaintiff. The Plaintiff refused to provide any date for the Answers to the Court ordered found in Exhibit 1.

3.   At the same meeting when asking for a date certain from the Plaintiff, the Defendant was called a “petulant child”. This was witnessed by the Defendant’s wife and another witness.

4.   The Plaintiff Mr. Gaffney continued his inappropriate behavior by ridiculing and shaming the Pro Se Plaintiff by continuously saying “Do you know what you are doing?”

Argument

5.   The Plaintiff was served with Interrogatories on My 4, 2016. He had over 90 days to prepare his Answers.

6.   The Plaintiff has refused to provide a date certain or even an estimate for his provision of Answers.

The refusal to provide a certain date is adversely affecting the Defendant’s ability to conduct discovery and the preparation of his defense.

The Plaintiff being an officer of the Court should not be allowed to play fast and loose with the Court rules and orders.

7.   The Plaintiff as a Court officer has conducted himself in an inappropriate manner by name calling and ridiculing the Pro Se Defendant.

Conclusion and Relief

The Pro Se Defendant, Gordon T. Davis, respectfully asks the Court to order the Plaintiff to provide the Court ordered Answers.

The Pro Se Defendant, Gordon T. Davis, also requests that the Court caution the Plaintiff Mr. Gaffney (who is an attorney) about appropriate behavior in a Court proceeding.

 Respectfully submitted

Gordon T. Davis

Pro Se Plaintiff

=======================================================

Exhibit 2

-----Original Message-----
From: Michael Gaffney <michaelgaffneylaw@gmail.com>
To: Gordon Davis <standards2100@aol.com>
Sent: Tue, Sep 6, 2016 11:20 am
Subject: Re: 9C Conference Regarding Court Compelled Answers to Interrogatories.

As you are aware, Judge Tucker was pretty clear in court on August 25, 2016 when he advised the he would review the discovery motions after a determination on the Motion to Dismiss as the determination on the Motion to Dismiss would be dispositive.  In fact, he has scheduled a Hearing on the Protective Order after the due date for the Amended Complaint.

On Sat, Sep 3, 2016 at 7:37 PM, <standards2100@aol.com> wrote:

Dear Mr. Gaffney:

The Court ordered Answers to my Interrogatories are passed due. By your admission in your Opposition Memo to Motion to Compel a Date Certain for your Answers the Answers were due on September 2, 2016. You are now in contempt of Court.

 In accordance with Rule 9C I telephoned you on September 3, 2016 to discuss your failure to provide Answers in a timely manner and a manner ordered by Court. Please return my call with about your Answers. I am considering contempt of Courts sanctions. 

 The Answers are due forthwith. 

Regards, 

Gordon T. Davis

Pro Se Defendant

Calling Mr. Gaffney a Black Panther

Calling Mr. Gaffney a Black Panther

This update is not legal advice

Hearing on Defendant’s Motion to Dismiss

On August 25, 2016 Judge Taylor held a hearing regarding Ms. Tirella’s Motion to Dismiss. A Motion to Dismiss is different than a Motion for Summary Judgement in that it asks the Court to make a determination regarding whether the Complaint meets the prima facie requirements or substance of a defamation case. A Motion for Summary Judgement asks the Court to determine the case based on the evidence presented.

Although the Defendant Ms. Tirella made a Motion to Dismiss, Defendant Davis did not.  He chose instead to go through the Discovery proceedings and seek Summary Judgement or a trial afterwards. Even if Ms. Tirella’s case is dismissed. the Judge should continue the Gaffney vs. Davis part of the case.

Defendant Tirella’s attorneys argued that not one of the articles in InCity Times is defamatory.  Mr. Gaffney argued that no single article was defamation, but the articles had to be viewed together as a group.

The Judge asked Mr. Gaffney in an attempt to clarify his position ”… was it defamatory for Hillary Clinton to call Donald Trump a racist?”. The Judge then asked Mr. Gaffney was it defamation for someone to call him a White Supremacist or a Black Panther. Mr. Gaffney said that no one would call him a Black Panther.

Errors in Mr. Gaffney’s Motion to Amend

The Judge has not made a ruling yet. In a notice, subsequent to the Dismissal Hearing, from the Court Clerk the Judge said that Mr. Gaffney had errored in his Motion to Amend the Complaint. The error is that Mr. Gaffney did not include the draft of the Amendment or wrote the Amendment incorrectly.

In August 2016  I complained to the Court that Mr. Gaffney did not send me a copy of his Amendment and therefore I could not effectively oppose it. It appears that Mr. Gaffney did not send a copy of the Amendment to the Court as well.

The Judge said that he would not rule on Ms. Tirella’s Motion to Dismiss until Mr. Gaffney sent a copy of his Amendment. The Court gave Mr. Gaffney 10 days to comply.

Mr. Gaffney Contempt of Court

Even though the Court ordered Mr. Gaffney to answer my Interrogatories, he has again failed to do so, He is now in contempt of Court. I will ask the Court for sanctions.

Turtleboy Desposition

As for Turtleboy, there is a hearing on his Protective Order on September 13, 2016. The Judge will rule on whether I can depose Turtleboy and if there are restrictions on the questions I can ask. 

My Complaint to Board of Overseers About Ms. Melican

 My Complaint to Board of Overseers About Ms. Melican  

                           

Attorney and Consumer Assistance Program                                                                 Office of the Bar Counsel                                                                                                  99 High Street
Boston, Massachusetts 02110 

Re: Margaret M. Melican, BBO #342100

Dear Sir or Madam:

I am writing to complain about Margaret M. Melican. Esquire. Her BBO number is seen above.

Ms. Melican has engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. She has engage in conduct that is prejudicial to the administration of justice. She has engage in conduct that adversely reflects on his or her fitness to practice law.

Because Ms. Melican is a lawyer and a former judge, she assumes legal responsibilities going beyond those of other citizens. Her misconduct could suggest an inability to perform her responsibilities as a lawyer.

Background

I am a writer. I wrote about the efforts by Mr. Gaffney to close down a community center in a Black neighborhood. A blogger, Turtleboy, supported what I consider Mr. Gaffney’s racist efforts.  Mr. Gaffney is now suing me for defamation.

I attempted to depose the blogger Turtleboy in order to obtain evidence for my defense. Ms. Melican, Turtleboy’s counsel, moved for protective orders.

Misconduct by Ms. Melican

1.     On August 3, 2016 Ms. Melican sent to the Court an Emergency Motion for a Protective Order to prevent the deposing of her client Turtleboy. The Deposition  was scheduled for August 10, 2016. Her Emergency Motion did not have my Opposition Memo.  (Exhibit 1)

2.      I sent my Opposition Memo to the Emergency Motion to the Court by hand on August 8, 2016.  (Exhibit 2)

3.     The Court never ruled on the Emergency Motion for a Protective Order and the Deponent did not appear on August 10, 2016 at the still scheduled Deposition. (Exhibit 3)

4.     On August 11, 2016 I sent to Ms. Melican an email saying that some proceedings took place without the Deponent at the scheduled Deposition. (Exhibit4)

5.     On August 16, 2016 Ms. Melican filed a second Motion for Protective Order for Turtleboy.  (Exhibit 5)

6.     Incredibly Ms. Melican did NOT send a copy of the second Motion for a Protective Order to me. Ms. Melican sent her second Motion for a Protective Order directly to the Court without allowing the Defendant to see and write an Opposition Memo.

7.      The list of Rule 9A documents for the second Motion for Protective Oder filed by Ms. Melican does not have within it  my Opposition Memo. (Exhibit 6)

8.     The list of Rule 9A documents does contain a listing of a Certificate of 9A Compliance. A copy of this Certificate was never sent to the Defendant. Ms. Melian’s Certificate of 9A Compliance is false as she never allowed the Defendant an opportunity to write an Opposition Memo. The Certificate is a form of perjury.

9.     The evidence for this perjury is not only the omission of any mention of the Defendant’s Opposition Memo in the Rule 9A List of Documents, but also in the timeline of Ms. Melican Motion.   

The date of Ms. Melican inquiry regarding the scheduled deposition was August 10, 2016. (Exhibit 4). Even if she had written the Motion for second Protective Order on August 10, 2016, Ms. Melican filed her Motion for Protection on August 16, 2016. The date of filing is less than 10 days per Court Rules she must allow the Defendant to write a Memorandum of Opposition.

10.  The Certificate of 9C Compliance also listed in the List of 9A documents is also is false and a form of perjury. Ms. Melican never talked with me in person or by telephone about her second Motion for Protective Order.

She never talked with me by phone or in person about when I would provide a Memorandum of Opposition to her second Motion for Protective Order that she filed with the Court on August 16, 2016.

Conclusion

     There is sufficient evidence for the Board of Overseers to investigate Ms. Melican’s actions as dishonest and prejudicial to the administration of Justice. Her actions are perjurious and designed to give her an unfair and unlawful advantage.

     Ms. Melican is a former judge and presently a lawyer and she knows Opposition Memos get lost in the judicial process unless they accompany the associated Motions. Court Rule 9A was designed to prevent this unfair advantage.

     There is evidence that Ms. Melican intentionally attempted to gain this unfair and unlawful advantage of having the presiding judge see her Motion without seeing the Opposition Motion of the pro se Defendant.

   I respectfully ask that Ms. Melican be investigated for this misconduct.

Respectfully submitted,

Gordon T. Davis                                                                                                         508                                                                                            Stan

Cc: Margaret M. Melican, Esq.