ࡱ> npmM Cbjbj== dWW?l<<<@pppD2dWO&"NNNNNNN$}P R~NpN#ppO###(ppN#N# #%JXppN x<@|XL(N'O0WO6LS#SN#`H|pp ____________________________________ VINCENT DONATO, ERIC : SUPERIOR COURT OF NEW JERSEY OBERNAUER, LAWRENCE R. : LAW DIVISION : BERGEN COUNTY CAMPAGNA, AND GINA A. : CALOGERO, : Plaintiffs, : DOCKET NO. BER-L-6214-01 : vs. : : Civil Action STEPHEN MOLDOW, JOHN : DOES 1-40 AND JANE DOES 1-20 : : Defendants. : ____________________________________: ______________________________________________________________________________ SUR-REPLY BRIEF OF MOVANT ANNONYMOUS POSTERS IN SUPPORT OF THEIR MOTION TO QUASH SUBPOENA, DISMISSING COMPLAINT AND FOR OTHER RELIEF ______________________________________________________________________________ HARTMAN & WINNICKI, P.C. W. 115 Century Road Paramus, New Jersey 07652 (201) 967-8040 Attorneys for Movants, Anonymous Posters Of Counsel: Richard L. Ravin, Esq. On the Brief: Richard L. Ravin, Esq. Van V. Mejia, Esq. TABLE OF CONTENTS ARGUMENT...................................................................................................................1 POINT I PLAINTIFFS HAVE STILL NOT SATISIFIED THE DENDRITE REQUIREMENTS .............................................................1 Sorting Out The Authors...2 Plaintiffs Analysis4 CONCLUSION.............................................................................................................10 i ARGUMENT POINT I PLAINTIFFS HAVE STILL NOT SATISFIED  TC \l1 " THE DENDRITE REQUIREMENTS Plaintiffs have attempted, in their letter brief in opposition to the amici curiae brief (submitted on November 28, 2001, Amici Opposition Brief) to cure the defects identified in Point I of Movant Anonymous Posterss (Movants) Reply Brief (dated November 12, 2001). As such, Movants thought it would be helpful to the court if they submitted the within sur-reply brief, addressing why the Dendrite test has still not been satisfied, as well as sorting out among the barrage of alleged actionable statements, just which statements relate to those authored by Movants. Accordingly, Movants request the court consider the within sur-reply brief. As stated in Point II of Movants main brief (dated September 14, 2001), the subpoena duces tecum served on VantageNet, Inc. is defective because, among other things, it seeks information as to authors not identified as John or Jane Does in the complaint. This is one reason why counsel for Movants have been reluctant to identify their clients simply as potential John or Jane Does. It would seem axiomatic that Plaintiffs cannot side-step the strictures of Dendrite v. Doe No. 3, 342 N.J. Super. 134 (App. Div. 2001), and the First Amendment, by simply failing to even lay out a cause of action against those who are the object of the subpoenas, and in effect, access the information through the back door. A. Sorting Out The Authors As stated on page 2 of Movants main brief, the Movants are authors of messages posted on the Eye On Emerson message board who have used the following 18 screen names: Are You Kidding Me, Cant Resist, Carnac, Catalyst, Cynic, Daring To Dream, Digging In My Heels, Emeril, Frustrated Voter, Knows The Facts, Laughing Last, Like It Is, Lt. Columbo, Nice Try BOND, Old Goat, Reality Checker, T Payne, and Taxed To The Brink. Of these, the following 10 screen names are identified in the subpoena, but not in the complaint: Are You Kidding Me!, Nice Try BOND, Lt. Columbo, Digging In My Heels, Emeril, T Payne, Frustrated Voter, Taxed To The Brink, Cynic, and Carnac. Thus, the following eight Movant screen names were identified in the complaint: Cant Resist, Catalyst, Daring To Dream, Knows The Facts, Laughing Last, Like It Is, Old Goat, and Reality Checker. Plaintiffs Amici Opposition Brief (at 1 through 16) attempt to set forth a line-by-line analysis of each of the statements referenced in the subpoena to Vantagenet. (Pl. Br. at 1-2). The following is a list of Movant screen names which are identified in Plaintiffs Amici Opposition Brief, listed by their corresponding number used by Plaintiffs in their subpoena (note: those which are underlined are not identified in the complaint): Reality Checker, Are You Kidding Me, 26. Like It Is, Cant Resist (Erroneously referred to in Plaintiffs opposition brief filed November 28, 2001 as 31), Daring To Dream, Old Goat, Laughing Last, Laughing Last, Laughing Last, Like It Is, Nice Try BOND, Lt. Colombo, Digging In My Heels, T Payne, and Frustrated Voter. It is noted, that not all of the Movant screen names were included in the analysis of Plaintiffs. The following screen names and statement were not included in Plaintiffs analysis in their Amici Opposition Brief (numbers correspond to subpoena numbers; note: those which are underlined are not identified in the complaint): 89. Taxed To The Brink, Cynic, Cynic, Cant Resist, Carnac, 103. Taxed To The Brink, Cynic, and Emeril. It is noted that Catalyist, which is identified in the complaint, is not included in either the subpoena, or Plaintiffs analysis. Thus, by their omission from Plaintiffs analysis, Plaintiffs concede that they have absolutely no case against Movants with respect to six screen names: Cant Resist, Carnac, Catalyst, Cynic, Emeril Taxed To The Brink. When the screen names are removed from the remaining 12 screen names which were not identified in the complaint, the following list of six screen names result: Reality Checker, 26. Like It Is, Cant Resist (Erroneously referred to in Plaintiffs opposition brief filed November 28, 2001 as 31), Daring To Dream, Old Goat, Laughing Last, Laughing Last, Laughing Last, and Like It Is. B. Plaintiffs Analysis Posting number 8 was authored by Reality Checker. This statement, even taken into context of the string of messages is not defamatory. This posting is Reality Checkers opinion and is, at most, name calling.. Opinion and name calling, however, are not actionable. Moreover, the statement is a form of parody, to the extent reference is made to a movie or literary work, which is also protected by the First Amendment. With respect to Posting number 8, Plaintiffs state that the Posting of number 8 by Movant Reality Checker should be put in context with Posting numbers 6 and 7 and that Plaintiffs make reference to supposed breach of the then-existing confidentiality agreement (Pls. Amici Opp. Br. at 3). It is important to note that Plaintiffs allege that only Posting No. 6, Flash Report, discloses confidential material. Movant Reality Checker simply comments on what has been posted (or already disclosed). There is no allegation that Reality Checker disclosed any confidential information. Accordingly, the case of Immunomedics, In. v. Jean Doe 342 N.J. Super. 160 (App. Div. 2001), is inapposite with respect to Reality Checker. Posting number 21 was authored by Are You Kidding Me!. Once again, the Plaintiffs cite an alleged tort of harassment. However, as noted in the Anonymous Posters main brief, New Jersey does not recognize a tort of harassment. Additionally, the Plaintiffs statement that it ends with a defamatory and harassing comment is a mere conclusion. The analysis does not indicate how the statement is defamatory. The law on defamation and Dendrite, as noted in greater detail in the Anonymous Posters main brief, require that the Plaintiff identify a defamatory statement. The identifying of a statement, and then merely concluding that it is defamatory -- as the Plaintiffs are attempting to do here -- is not what is contemplated by the law on defamation and Dendrite. The statement is not actionable. Additionally, the allegedly defamatory statement cited by the Plaintiffs is political speech and opinion. Finally, Are You Kidding Me! is not referenced in the complaint. Posting number 26 was authored by Like It Is. The Plaintiffs conclude that the statement involves sexual harassment. First, the Plaintiffs have not pled sexual harassment in their complaint. Second, sexual harassment typically involves an employer-employee relationship, which is not at issue in the instant matter. Posting number 32 (erroneously referenced as item no. 31 in Plaintiffs Amici Opposition) was authored by Cant Resist. First, the Plaintiffs note that the posting was a direct communication to Larry, Gina and Vince. However, it should be stressed that the statement was part of an open exchange in an electronic bulletin board, and not a direct communication as the Plaintiffs suggest. Second, the Plaintiffs again cite to an alleged tort of harassment -- a tort not recognized in New Jersey. Third, the Plaintiffs indicate that the statements relating to not having the guts to resign border on defamation. (Emphasis added.) Thus, the Plaintiffs concede that the defamatory nature of the statement is questionable (and, therefore, not strong, as required by Dendrites fourth criterion). Finally, the Plaintiffs argue that this posting accuses Donato and Calogero of having an adulterous affair. Once again, this is conclusory. The statement makes reference to affairs not adulterous affairs. The plain meaning of such a term is subject to multiple definitions. According to the American Heritage Dictionary (Second College Edition, 1976), affair has six definitions, the last of which is A love affair, esp. a brief one; liaison. The first five are as follows: Something done or to be done; business. Transactions and other business matters: a man of affairs. a. An occurrence, event, or matter. b. An object or contrivance: a first car that was a ramshackle affair. A private matter; personal concern. A matter causing scandal and controversy: the Dreyfus affair. Thus, the ordinary meaning given, even in context, would not be an adulterous affair as suggested by Plaintiffs. Readers were more likely to ascribe more common meanings, such as the thought of references to the business or political affairs of Donato and Calogero. Posting number 39 was authored by Daring To Dream. Once again, the Plaintiffs cite to an alleged tort of harassment -- a tort not recognized in New Jersey. Significantly, the Plaintiffs do not argue that the statement is not defamatory. Thus, this statement by Daring To Dream is not actionable. Posting number 53 was authored by Old Goat. Once again, the Plaintiffs cite to an alleged tort of harassment -- a tort not recognized in New Jersey. The statement, at most, is name calling, and is thus not actionable. Posting number 54 was authored by Laughing Last. This is not, as the Plaintiffs contend, a direct communication to Campagna, akin to a face-to-face statement, or an e-mail. This was an open statement made on a public electronic bulletin board. Additionally, the Plaintiffs cite to an alleged tort of harassment -- a tort not recognized in New Jersey. The comments are of future events, and therefore, at most an opinion as to what will happen. The statements are not present or past facts, which are required under defamation law to be actionable. Moreover, the reference to connections to a TV show is Laughing Lasts own personal opinion and, at most, name calling. The statements are not actionable. Posting number 59 was authored by Laughing Last. This is not, as the Plaintiffs suggest, a direct communication, but rather part of an open exchange in a public electronic board. Again, the Plaintiffs cite to an alleged tort of harassment -- a tort not recognized in New Jersey. Apparently, it is true that Campagna changed his name, since there is no reference in Plaintiffs opposition papers to the contrary. Questioning the reasons a public figure changed his name is not actionable. The statements are mere opinion and name calling, at most, and thus not actionable under our laws. Posting number 60 was authored by Laughing Last. The Plaintiffs have withdrawn this post, since it is apparently identical to posting number 53. Posting number 62 was authored by Like It Is. This statement is the personal opinion of Like It Is, and is, at most, name calling. Additionally, the Plaintiffs cite to an alleged tort of harassment -- a tort not recognized in New Jersey. Posting number 63 was authored by Nice Try, BOND. This statement is the personal opinion of Nice Try, BOND, and is, at most, name calling. It is not, however, actionable. Posting number 64 was authored by Lt. Columbo. The Plaintiffs do not allege that the statement is defamatory, but, rather, harassing. Once again, the Plaintiffs cite to an alleged tort of harassment -- a tort not recognized in New Jersey. Posting number 65 was authored by Digging In My Heels. Once again, the Plaintiffs cite to an alleged tort of harassment -- a tort not recognized in New Jersey. Additionally, there is simply no reference in the statement that Calogero is dishonest and corrupt. The statement, like many of the statements complained of, speak to the poor judgment and the lack of qualifications of the Plaintiffs. The statements are not unlike the type of statement that many Americans make about their elected representatives all over this country and certainly in New Jersey. At most the statements are mere opinion and name calling. Posting number 74 was authored by T Payne. This statement is the epitome of political free speech, which is set forth below in its entirety: Beware! The so-called Reformers are gearing up to impede you [sic] right to free speech on this site. Ms. Petriano opened the gate at the last meeting (does she even own a computer?) complaining about anonymous posts on this site. Tellingly, Plaintiffs own actions have proven T Payne correct -- the fact that Plaintiffs are still prosecuting this statement after four months of litigation also epitomizes Plaintiffs abuse of the judicial process in derogation of Movants First Amendment Rights, and serves as a perfect example as to the need for the Dendrite gate-keeping function of the court. Posting number 87 was authored by Frustrated Voter. Once again, the Plaintiffs cite to an alleged tort of harassment -- a tort not recognized in New Jersey. Additionally, the statement is opinion and name calling, which are not actionable in New Jersey (See Posting No. 59, above, also on the same subject). The Plaintiffs do not provide any analysis beyond Posting number 87. A review of the analysis provided by the Plaintiffs reveals that the alleged actionability of a statement is grounded on the statement either being harassing and/or defamatory. However, as frequently noted in this brief, a tort of harassment is not recognized in New Jersey. Additionally, the Plaintiffs analysis confirms that the statements are not defamatory. The Plaintiffs merely cite to a statement, and then conclude that the statement is defamatory. They have not shown as a threshold matter, however, that the statement is (1) false and (2) injures their reputation, subjects them to hatred, contempt or ridicule, or causes others to lose good will or confidence in that person. The statements are simply not actionable. In sum, after having long avoided the required analysis under Dendrite in earlier briefs, the Plaintiffs, again, fail to meet their Dendrite burden. CONCLUSION For the foregoing reasons, the motion of Movants Anonymous Posters should be granted which seeks (i) to quash Plaintiffs subpoena duces tecum served on VantageNet, Inc., (ii) to restrain Plaintiffs from serving any further subpoenas seeking information leading to the identities of any of the anonymous posters, (iii) to dismiss the complaint, and (iv) other relief. Hartman & Winnicki, P.C. Attorneys for Movants Anonymous Posters DATE: December 3, 2001 By:______________________ Richard L. Ravin, Esq. 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