Willis Carto archive

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Case No. 1:00CV02411

Judge Gladys Kessler

Reply of Defendants Kirk Lyons, LSF and Mark Weber to Opposition to Defendants' Motion to Dismiss or in the Alternative for Summary Judgment

Come now the defendants, Kirk Lyons, Legion for the Survival of Freedom (LSF), Mark Weber, by and through Counsel, John F. Mercer, Esquire, and state the following, in their Reply to the plaintiff’s Opposition to their Motion to Dismiss or in the Alternative for Summary Judgment:


In its opposition, plaintiff implicitly concedes that: (1) Plaintiff had actual knowledge of publication of the defendants' alleged defamatory communication (the Letter) on or around June 7, 1999, (2) that the one year statute of limitations, D.C. Code § 12-301, applies to the torts of libel and business defamation, (3) that plaintiff filed the instant suit alleging defamation on October10, 2000, more than one year from plaintiff’s notice of publication of the Letter. Accordingly, Plaintiff’s complaint is barred by the statute of limitations, Zandford v. National Association of Securities Dealers, 30 F. Supp. 2d 1, 19, (D.D.C.1998).

In order to avoid the obvious consequence of failure to file prior to the expiration of the statute of limitations, plaintiff argues there was a republication of the content of the Letter by Internet and alleges that this republication occurred when an organization identified by plaintiff as Nizkor, emailed the content of the Letter to others. The plaintiff argues that the defendants knew or should have known the inevitability of Internet republication of the content of the Letter when defendants effected initial publication of the Letter. The plaintiff urges the Court to attribute the alleged Internet republication by Nizkor to the Defendants.

Under plaintiff’s theory, the alleged Internet republication would extend the date of notice of publication to September 22, 2000. Plaintiff further argues that the statute of limitations period should begin on September, 2000, allowing for the filing of the complaint on October 10, 2000.

The Court must reject plaintiff’s argument. It is a thinly disguised effort to circumvent proper application of the statute of limitations and to deliver plaintiff from the consequences of untimely filing of the complaint. Even accepting factual allegations of the complaint and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed. 2d. 90, Mittleman v.United States, 997 F. Supp. 1, 6 (D.D.C. 1998), (quoting Tele-Communication of Key West, Inc., v. United States, 757 F2d. 1330, 1334-35 (D.C. Cir. 1985), the plaintiff has not adequately alleged republication for which the defendants could be liable.

Plaintiff rests its republication theory on insufficient allegations and unsupported legal conclusions. Though reasonable inferences should be viewed in a light favorable to the plaintiff in considering the Motion to Dismiss, conversely, a plaintiff’s legal conclusions, opinions or unwarranted averments of fact will not be deemed admitted, Webb v. District of Columbia, 864 F.Supp. 175, 179 (D.D.C.,1994), citing Haynesworth v. Miller, 820 F2d 1245, 1254, (D.C. Cir. 1987).

Though the original publisher of defamatory material may be liable for the republishing of that material, the original publisher is only liable where the republication was reasonably foreseeable to the original publisher, Foretich v.Glamour, 753 F.Supp. 955, 961, (D.D.C. 1990). Here, plaintiff rests its theory of defendants' republication liability upon a copy of an email message containing a reprint of the content of the Letter, addressed by Nikor to an unidentified receiver.1

Plaintiff does not allege a relationship between Nizkor and the defendants. Plaintiff makes no allegations of contact or correspondence between Nizkor and the defendants. Plaintiff does not provided affidavits from officers or representatives of Nizkor showing defendants' knowledge of or involvement in, the alleged republication.

The factual circumstances of the instant matter are in no way comparable to cases where liability of a primary publisher for republication has been established. In Foretich, relied upon by the plaintiff, an author and copyright owner of an allegedly defamatory article (the article), by written agreement, authorized a magazine to publish the article. In his agreement with the magazine, reprint rights for the article reverted to the author after initial publication. Subsequently, in writing, the author conveyed the right to reprint the article to a third party organization. The organization republished the article, word for word, as it had originally appeared in the magazine, inclusive of photographs. Before authorizing the reprinting, the author advised the editor of the magazine of the republication arrangements he had made, in writing, with the third party organization. Under those circumstances, the Court held that the author could be held liable for the republication by the third party organization.(Foretich at 958-960).

The allegations of the instant complaint are substantially different from Foretich in several important ways. The most important difference is that of relationship between the initial publisher and the republishing party. Communication between the original publisher and the re-publisher in Foretich was clearly expressed in a written agreement (Foretich, at 958). Also, in Foretich, there were allegations of multiple conferences, phone conversations and written correspondence between the author and the third party organization which republished the article (Foretich,at 958-959). Defendants cannot be held liable for third party third party republication unless they knowingly participated in the republication, Tavoulares v. The Washington Post Company, 759 F2d 90, 136 (1985).

Caudle v. Thompson, 942 F.Supp.635 (D.D.C., 1996) is also relied upon by the plaintiff. Caudle restates Tavoulares for the principle that one who initially publishes a defamatory statement may be liable for its republication if his participation in the publication was significant enough, Tavoulares at 759 F.2d.90, 135, (D.C.Cir. 1985) . In Caudle, the alleged republication had been effected by slander. The court in Caudle did not reach the question of whether there was sufficient connection between the defendants and the republication. The court in that case concluded that the plaintiffs were barred by the statute of limitations (Caudle at 641). In none of the cases cited by the defendant is it held that republication, even where attributable to the defendant, automatically establishes a new or different notice date for purposes of the statute of limitations. Indeed, such a holding would be dangerous. It might be used by an unscrupulous plaintiff who, having received notice of the initial publication could await (or promote) accumulation of additional damages by republication before filing suit.

The sole publication alleged by plaintiff sufficient to attribute to the defendant was the defendants' mailing of June 7, 1999. The plaintiff does not deny that it became aware of that publication on or by July 2, 1999.2 The plaintiff concedes that subsequent to the publication, plaintiff contacted the defendants' bankruptcy lawyer to complain about the Letter (See Affidavit of Darrell Clark, Esq.). The July 2, 1999, discovery date is the only reasonable date which might be considered by the court as the commencement date for the running of the statute of limitations.

The very nature of defamation by libel is that the printed word may travel far and wide. Unauthorized republication is virtually uncontrollable and unavoidable. Had plaintiff’s lawsuit been timely filed, assuming the content of the Letter was defamatory, the breadth and scope of publication might have been an appropriate consideration in assessing damages, Norfolk & Washington Steamboat Co. v. Davis, 12 App. D.C. 306(1898), Washington Herald v. Berry, 41 App. D.C. 322 (1914), Schoen v. Washington Post, 100 U.S. App. D.C. 389, 246 F2d 670 (1957). The plaintiff has cited no legal authority for the proposition that an original publisher of a libelous statement would be liable for republication of that statement by Internet without alleging more than the defendant should have been aware that third party Internet republication might eventually occur.


Plaintiff concedes that the parties entered into a Release and Forbearance and Settlement Agreement and Mutual General Release (the Agreement) settling then existing and future claims relating to the Subject Lawsuits. According to page one of the Agreement, the Subject Lawsuits covered by the forbearance provision of the Agreement, included the following:

… [In the Superior Court of California, County of San Diego, North County Branch] Case No. 64584 against Defendants on November 21, 1996 … a chapter 11 bankruptcy action listing all of their assets and liabilities in the United States Bankruptcy Court for the District of Columbia, Case Number 98-1046 …].3

The Agreement states that it is entered into on May 25, 1999, (page one) however, operation of the Agreement is conditioned upon institution by the plaintiff of the following: a stipulated judgment … being entered into (paragraph 5, page two), Defendants' full disclosure of all assets in their possession (paragraph 6, page two), and the Defendants' efforts to obtain and file with the proper courts, and to deliver … conformed and file stamped dismissals, with prejudice, within thirty days of bankrupt court approval of this settlement, of all appeals and law suits against the plaintiffs (paragraph 7, page two).

The pre-conditions of the Agreement apparently having been met, Plaintiff Liberty Lobby executed the Agreement, by signature of Vince Ryan, Chairman, on July 29, 1999 (See Plaintiff’s Opposition Exhibit #2). The defendant LSF executed the Agreement on July 28, 1999.

In its Opposition, plaintiff argues that the release and forbearance provisions of the Agreement did not encompass writing and publishing of the Letter by the Defendants. That argument has no substance.

The Agreement specifically describes the bankruptcy matter as a Subject Lawsuit. Soliciting financial support for legal strategies in the bankruptcy was the stated purpose of the Letter. The release was clearly meant to include, actions to support prosecution, by the defendants of their bankruptcy claim. The intent of the Agreement in that regard, could not have been more explicit. That intent, having been clearly expressed by the parties, should be supported by this Court, Waters v. Pacific Telephone Co., 523 P2d 1161, 1166 (1974). Actions taken by the parties in pursuit of the bankruptcy naturally and logically fit within the scope of the Agreement’s release and forbearance provision.

The Letter has as its purpose the raising of money to support appointment of an independent trustee in the bankruptcy case filed by the plaintiff. The following excerpts illustrate the Letter’s clear intent:

From page one:

According to its own records, Liberty Lobby brought in more than four million dollars in 1996 and again in 1997. But the most recent records signed by Carto himself, show that income has fallen drastically since 1997.

A new low point came in May 1998, when, as a result of Carto’s micro-management, Liberty Lobby filed for Chapter 11 bankruptcy. (Amazingly, the Spotlight then tried to portray this fiasco as some kind of victory.)

From page two:

Fortunately a unique opportunity has recently arisen to save Liberty Lobby from ruin. The federal bankruptcy court in Washington, D.C., has the authority to appoint an impartial trustee who can clean house.

This special trustee will have sweeping authority to end mismanagement, corruption and waste … I am writing to ask for your help to save Liberty Lobby from ruin.

From page two:

Like everything else in life, the problem, is money — in this case funding for the specialized legal counsel, researches and services we need to to get the bankruptcy court to appoint an impartial trustee …

The Agreement is clear and unambiguous and must be construed in the context within which it was made, Palmer v. Truck Insurance Exchange, 988 P2d 568, 574-75 (1999). Plaintiff has not questioned the Agreement’s interpretation so the Court must give effect to the mutual intention of the parties at the time they entered into the Agreement in so far as the same is ascertainable and lawful, Pacific Gas & Electric Co. v. G.W. Thomas Drayage & R. Co., 442 P.2d 641, 644 (1968). The parties entered into an effective and knowing waiver of their respective rights to actions by which they might have vindicated claims.4

The plaintiff contends that the publication of the alleged defamatory letter (the Letter) was not an action contemplated as being subject to waiver, release or forbearance under the Agreement. Plaintiff’s contention in that regard does not withstand scrutiny.

At the time the Letter was published, defendant LSF was pursuing a claim in the bankruptcy case. The bankruptcy case was contentious. Defendant LSF was pursuing its claim aggressively. Defendant LSF filed for appointment of an independent trustee because it believed that the plaintiff was concealing, diverting and improperly reporting assets. Defendant LSF’s Motion for Appointment of a Chapter 11 Trustee (Motion to Appoint Trustee) was filed on May 25,1999. (See Motion to Dismiss Exhibit #9).

On the very day the Letter was issued (June 7, 1999), LSF filed opposition to plaintiff’s Motion For Order to Show Cause Why Court Ought Not Order Mediation (See defendant’s Motion to Dismiss Exhibit #11).5 Testimony was taken before the U.S. Bankruptcy Court on the Motion to Appoint Trustee on July 1,1999, almost a month after the Letter was published. Sheer logic and plain meaning of the Agreement lead one to conclude that actions taken by the defendants to vindicate their interest in the bankruptcy case would be among actions subject to forbearance and waiver provisions of the Agreement.

In the Superior Court of San Diego, California, the venue of one of the pending civil Subject Actions in the Agreement, the Judge concluded that the Agreement did encompass the defendant’s publication of the Letter. On the motion of the Motion of LSF’s attorney, the Judge ruled that the plaintiff had violated the Agreement by filing the instant action.6 The Superior Court of San Diego determined that the instant action was barred by the agreement and its forbearance provision (See decision of Judge Maino, Superior Court of San Diego California). That court decided plaintiff’s breach of the agreement entitled defendants to institute collection upon one of the judgments which had been subject to forbearance under the Agreement.

The decision of the court of California should be accorded substantial weight in this matter where the parties have agreed that the Agreement would be interpreted under laws of the state of California. Croissant v. Empire State Realty Company, 29 App. D.C. 538, 547, (1907), Emerson v. American Express Company, 90 A2d. 236, 240 Note 3 (1952)

The defendants, in the Letter, were appealing for financial support for legal actions, as has become more clear in this day and time, the need for financial support for litigation often lives much longer than the litigation itself. For purposes of resolution of this motion, the important question is not whether defendants' Letter was ambiguous, inaccurate, misleading or even defamatory, in describing the intended use of funds solicited. The preeminent questions are: Whether the Letter claimed, as its purpose, an act in furtherance of defendants' efforts in the bankruptcy proceeding? Whether the bankruptcy proceeding was contemplated as an action under the Agreement?

Defendants submit that plaintiff’s pleadings and supporting documentation, by themselves, taken to be true, answer both questions in the affirmative. Therefore, the plaintiff’s action must be dismissed as barred by the Agreement.


Plaintiff’s substantiates its good faith claim for damages under 28 USCA § 1332 on two principal grounds. In its first argument, the plaintiff attempts to legitimize its claim by juxtaposing defendants'1.2 million dollar judgment against plaintiff in a civil case upon the instant matter. Plaintiff, urges the Court to use that judgment as a measuring tool for determining the relative value of the instant action assuming defamation by the defendants. Plaintiff’s theory of valuation is both novel and unprecedented. On its face, plaintiff’s theory lacks even the diagnostic credibility of phrenology.

In the civil case, defendant LSF (plaintiff in that case) won a judgment against the defendant (in that case, Liberty Lobby) for conversion of its property, (see exhibit# 2). The plaintiff neither articulates in the complaint, nor its argument in its Opposition, a reason plaintiff’s alleged damages in the present matter would bear a relationship, for purposes of assessment of the value of the instant case, to a judgment rendered against the plaintiff for tortious conduct in another matter.

The plaintiff’s second argument in support of its good faith damage claim is because the plaintiff is a public figure, its damages for defamation, ipso facto, would amount to more than $75,000. Obviously, damages for defamation vary on a case by case basis. Even assuming a finding of defamation against the defendants, there is no basis for a finding of any quantifiable damages. In public documents, including judgments and findings of courts, over a period of several years, plaintiff and its principals have been found to have committed various torts, including fraud, misrepresentation and making false statements in court documents (See Motion to Dismiss, exhibits #2, #2(b), #3,#8,#9,#10,#11). Such public pronouncements of plaintiff’s recent past wrongful and dishonest activity establish plaintiff’s reputation as substantially tainted. In fact, defendants argue, based upon pleadings and court records, the court should find, as a matter of law, that plaintiff’s reputation could not be damaged because the alleged defamatory statements were substantially and actually true, Peruccio v. Arseneault, 508 A2d 831, 7 Conn. App. 389 (1986).

It is the duty of the court to determine, as a threshold matter, whether the plaintiff has established a good faith claim for damages in excess of the statutory jurisdictional amount, to a legal; certainty, Jones v. DaCosta, 930 F. Supp. 223, 225 (D.Md. 1996). Plaintiff’s prayer for damages does not meet the required standard and is not made in good faith.

In its Opposition, plaintiff has not provided the Court with a reasonable probability that its claim is in excess of the statutory amount, Chase Manhattan Bank, N.A. v. American National Bank and Trust Company of Chicago, 93 F.3d. 1064, 1070 (2dCir. 1996). Therefore, plaintiff’s diversity action and all pendent claims, action must be dismissed.


The plaintiff depends on Birthright v. Birthright, 827 F. Supp. 1114, ( D.N.J,1993) as a principal supporting case for its theory that the defendants violated 15 USCA §1115 (a) false designation of origin. Defendants disagree. The facts and circumstances of Birthright are vastly different from those presented by the plaintiff in this case.

In Birthright, an affiliate of the principal corporation (the junior user) had been authorized to use the name and service mark of the principal organization (the senior user) to represent the senior user and to carry on business in its behalf. After a series of policy disputes between the senior user and the junior user, authorization of use of the mark by the junior user was revoked. Thereafter, despite revocation of authority, the junior user continued to use the name and mark.

Once the junior user in Birthright ceased using the senior user’s mark, it continued to use a non-registered graphic symbol owned by the senior user, in its publications. In addition, the junior user continued in the same charitable activities pursued by the senior user and began collecting funds for those charitable activities. When the junior user ceased using the senior user’s mark, it published false information concerning the senior user in its competition with the senior user for funding.

In Birthright, the junior user became the direct competitor of the senior user regarding charitable services to be delivered to consumers. In Birthright, the court found that the junior user had engaged in infringement by unauthorized use of the senior user’s mark and had engaged in unfair trade by false advertising.The court also found that the junior user had engaged in unfair competition by using the senior user’s mark after authorization of use of the mark had been revoked.

In the present case, the facts are completely and fundamentally different. The plaintiff’s only support for his theory of trademark infringement is that the defendants used in the Letter a similar font to the font customarily used plaintiff in its newsletter. This similarity of font, is the sole basis for plaintiff’s assertion of trade mark infringement and false designation of origin. It is not contended at all by the plaintiff that the defendants used a graphic symbol comparable with or similar to plaintiff’s mark. In its pleadings, the plaintiff does not describe circumstances which would have amounted to actual confusion.

The plaintiff alleged that the defendants, in the Letter, presented false and defamatory information about the plaintiffs to solicit funds for use in pursuing court action against the plaintiffs. The plaintiff suggests that the defendants directed their campaign for funds to the supporters of plaintiff’s causes. Plaintiff further suggest that in the Letter defendants attempt to confuse plaintiff’s supporters.

Giving full credit to plaintiff’s allegations and theory, the defendants could not have possibility sought to confuse the public as to their identity or to improperly influence plaintiff’s supporters or the public to believe they had been authorized by the plaintiffs to issue the Letter. The opposite is clear. Through the Letter, the defendants hoped to disassociate themselves from the policies of the plaintiff, to harshly criticize plaintiff’s leadership and to discredit the plaintiff’s policies (See Letter, pages 1, 2).

For example, in the Letter the defendants directly attack the plaintiff’s leadership. They say plaintiff’s leadership has been wasteful and that its policies have lead to catastrophic consequences for the Liberty and its membership. In no way could this be interpreted as an effort to confuse the public as to who had authority to act on behalf of the plaintiff.

The plaintiff has simply failed to state a case which invokes protection of section 28 USCA§ 1115 (a). Under no theory of law does the plaintiff allege violation of 28 USCA § 1115 (a).


With regard to the causes of action for fraud, the plaintiff has entirely avoided defendants' argument that it lacks standing to make such a complaint. Plaintiff has provided no rebuttal to defendants' argument that plaintiff failed to allege it was or could have been a victim of fraud perpetrated by the defendants. Plaintiff makes no allegations in its complaint or assertions in its Opposition, that it engaged in any actions in reliance on false representations made by the defendants, D'Ambriso v. Colonade Council of Unit Owners, 717 A2d. 367 ( D.C. App. 1993).

Plaintiff has not rebutted defendants' argument that this matter is frivolous and vexatious made in the Motion to Dismiss. In that motion, defendants provide a chronology of pointless and baseless legal actions filed by the plaintiff. Each of these actions has been dismissed, dropped or abandoned by the plaintiff. In its Opposition, plaintiff provides no basis for this Court not to conclude that the instant action is frivolous.

Regardless of the variety of causes of action presented in the complaint, the plaintiff’s entire case is based upon allegations of defamation by libel. It has amplified, embellished, exaggerated and mischaracterized those claims in an effort to obtain federal jurisdiction. Its basic claims, if credited at all would be state claims.7

WHEREFORE THE PREMISES CONSIDERED, the Defendants prays that this Court dismiss the Complaint, assess legal fees and costs against the Plaintiff and grant the Defendants such other and further relief which the Court may deem appropriate.

Respectfully submitted,

John F. Mercer, Esq.
Solomon & Martin
Counsel for Defendants,
Kirk Lyons, LSF, Mark Weber


I hereby certify, that a copy if the forgoing REPLY OF THE DEFFENDANTS TO PLAINTIFF’s OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT, has been mailed postage prepaid, this 7th day of May, 2001, to Fraser Walton, Jr.Esq., 1003 K Strteet, N.W. Suite 510, Washington, D.C. 20001 and Mark Lane, Esquire, 105 Second Street, N.E., Washington, D.C. 20002, Counsel for Plaintiff.

John F. Mercer


  1. Plaintiff does not concede the legitimacy of this republication by Internet. The purported Internet publication (exhibit #1) is self serving. On its face, it has been altered (clearly written information has been blacked out) and neither the Court not counsel have the benefit of seeing an authentic copy of the original document. Further, when and if this document was published, apparently it was not disseminated in a form identical to the Letter. At the top of the first page of the exhibit it is clear that part of the document has been blacked out. In comparing the text of the exhibit with the Letter, the spelling of several words is different.
  2. Plaintiff does not deny, in its Opposition, that it contacted defendants in writing by telecopier on July 2, 1999 to complain about the Letter to defendants' bankruptcy counsel. (See, Exhibit #6b, Motion to Dismiss, letter from Andrew Arnold to Darrell Clark, Esq .and Exhibit 6, Affidavit of Darrell Clark, Esq.).
  3. In the Agreement reference to plaintiff in this matter is as the Defendant and reference to the defendants in this matter is as Plaintiff.
  4. See Agreement, page 4, waiver of California Civil Code, Section 1542 and also Section V of the Motion to Dismiss.
  5. The foregoing pleadings are part of the record before the Court as having been incorporated by reference by plaintiff in the First Amended Complaint.
  6. See Judge Maino’s decision, Motion to Dismiss Exhibit #3.
  7. Defendants do not concede that the claim of defamation, under any stretch of the imagination could be pursued. It is our position that then statute of limitations and the Agreement bar the plaintiff’s claims. We further argue that there is no need for this Court to reach any of Plaintiff’s substantive claims.