Parisi v Sinclair: 92 Memorandum in opposition to re 87 MOTION to Strike 77

8/8/2019 Parisi v Sinclair: 92 Memorandum in opposition to re 87 MOTION to Strike 77

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)DANIEL PARISI, et al., )

)Plaintiffs, )v. ) Civil Action No. 10-0897-RJL

)LAWRENCE W. SINCLAIR a/k/a Larry Sinclair, et al., )

)Defendants. )

)

PLAINTIFFS OPPOSITION TO B&NS MOTION TO STRIKE

CERTAIN PORTIONS OF PLAINTIFFS OPPOSITION

TO B&NS MOTION FOR SUMMARY JUDGMENT

Plaintiffs, Daniel Parisi, Whitehouse.com Inc., Whitehouse Network LLC, and White

House Communications Inc. (collectively plaintiffs), oppose the motion of defendants Barnes

& Noble, Inc. and Barnesandnoble.com LLC (collectively B&N) to strike portions of

plaintiffs opposition to B&Ns motion for summary judgment. Specifically, B&N seeks to

strike Exhibits B, I, J, K, L, M, N, O, P, X, and Y that plaintiffs have cited in opposition to the

dispositive motion and the specific portions of plaintiffs opposition where the exhibits are

discussed. (Dkt. No. 77).

ARGUMENT

I. EXS. I, J, K, L, M, N, O, P, X, AND Y ALL SUPPORT PLAINTIFFS REQUESTTO DENY OR CONTINUE B&NS MOTION FOR SUMMARY JUDGMENT

PENDING DISCOVERY.

B&Ns reply (Dkt. No. 86) is replete with statements that the plaintiffs have no

evidence of certain facts that would support their claim. Most of the exhibits at issue go to the

fact that plaintiffs have not yet obtained any discovery from any party or non-party to this case,

and plaintiffs have invoked Fed. R. Civ. P. 56(f) in opposing the dispositive motions filed by the

non-Sinclair defendants. (Decl. 29, 30). That Rule provides:

Case 1:10-cv-00897-RJL Document 92 Filed 12/20/10 Page 1 of 11

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If a party opposing the motion shows by affidavit that, forspecified reasons, it cannot present facts essential to justify itsopposition, the court may:

(1) deny the motion;

(2) order a continuance to enable affidavits to be obtained,depositions to be taken, or other discovery to be undertaken; or

(3) issue any other just order.

See, e.g., Woods v. City of Chicago, 234 F. 3d 979, 990 (7th Cir. 2000) (Rule 56(f) authorizes a

district court to refuse to grant a motion for summary judgment or to continue its ruling on such a

motion pending further discovery if the nonmovant submits an affidavit demonstrating why it

cannot yet present facts sufficient to justify its opposition to the motion.). Summary judgment

is proper only after the non-moving party has been given adequate time for discovery. 1443

Chapin St., LP v. PNC Bank, Natl Assn, 258 F.R.D. 186, 187 (D.D.C. 2009) (internal quotation

marks omitted); see also Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521

(10th Cir. 1992) (After the nonmovant has had a full opportunity to conduct discovery, this

burden falls on the nonmovant).

It is well recognized that an important aspect of a Rule 56(f) affidavit is that it need not

contain evidentiary facts going to the merits of the case; rather, it is merely a sworn statement

explaining why these facts cannot yet be presented. 10B C. Wright, A. Miller, and M. Kane,

FED.PRAC. AND PROC. 2740 (1983). [T]he affidavit need not contain evidentiary facts .

Campbell, 962 F.2d at 1522.

The questioned exhibits pertain to and establish why the dispositive motions should

be denied or continued pending appropriate discovery. The declaration accompanying plaintiffs

opposition to the B&N summary judgment motion express averred that:

Plaintiffs have not yet obtained any discovery from any party ornon-party to this case. B&Ns motion is based on broad and



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conclusory generalities. Plaintiffs should have the opportunity toobtain discovery, including the deposition of B&Ns declarants,Sinclair, and Sinclairs print on demand companies before anysummary judgment motion should be considered by the Court.

(Dkt. No. 77 Decl. 29). It also averred that:

Information which plaintiffs need in discovery of B&N and thirdparties would include, inter alia, the following: (a) evidencerelating to its knowledge of the defamatory statements at issue; (b)the operation of its business; (c) B&Ns contacts with Sinclairregarding the book and the product description; (d) third partycontacts with B&N regarding the book and its publication; (e) thecreation and development of the product descriptions and otherpromotional materials for the Sinclair book; and (f) the contractualobligations and amounts paid to Sinclair or his publisher, SPI, byB&N after a book is sold. The Court should deny or continueB&Ns motion for summary judgment pending discovery.

(Id. 30).

Exhibits that reflect postings on a website, www.theregulator.net, support the argument

that a bookseller can be held liable for its own conduct after it had reason to know that that the

book it sold was false and defamatory and that there were issues of fact as whether B&N had

such knowledge. (Dkt. No. 77, Decl. 30). Plaintiffs complaint alleges that prior to the filing

of this action, B&N knew or had reason to know of the defamatory statements at issue but

continued to publish, offer for sale and/or sell Sinclairs book. (Dkt. No. 1 47, 49, 58, 67, 72).

B&Ns summary judgment motion did not provide any evidentiary facts disputing these

allegations or that it lacked such knowledge. Plaintiffs opposition then stated that: Without

having had any discovery, plaintiffs have come forward with facts showing that there were such

communications with B&N. (See, e.g., Decl. Exs. I-N). (Dkt. No. 77 at 14). The opposition

emphasized that: Whether B&N had constructive notice and, if so, when is a question of fact



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that should not be decided without providing plaintiffs with an opportunity to obtain discovery

from defendants B&N, Sinclair and SPI and third-parties. (Dkt. No. 77 at 13-14).1

The declaration by plaintiffs counsel filed with the exhibits did not assert that the

www.theregulator.net postings were true, only that he found and printed them. The postings

show that there is evidence of an issue of fact on which plaintiffs have not had any discovery

from Sinclair, the other defendants, or third-parties. Discovery would enable plaintiffs to

authenticate documents and to remedy hearsay objections. There is no reason to strike Exs. I, J,

K, L, M, and N.

II.

THE AUDIO AND VIDEO TAPES SHOULD NOT BE STRICKEN (EXS. X, Y).

Another exhibit targeted by B&N pertains to communications that Sinclair had with B&N

(Dkt. No. 77, Decl. 27 & Ex. X). Exhibit X is a an audio recording of a conversation that

Sinclair had with B&N employees in Georgia on or about February 15, 2010. Sinclair does not

dispute that he posted the message or that his conversation with B&N took place. (Dkt. No. 89).

Plaintiffs counsel has had numerous telephone conversations with and voice messages from

Sinclair and has averred that it is Sinclairs voice on Ex. X. (Dkt. No. 84, Decl. 9). Thus, the

audio is authentic under FRE 901(5) and (6) (voice identification and telephone conversations).

Ex. Y is a video that Sinclair posted on YouTube on July 31, 2009, in which he expressly

stated that he was engaged in the process of having B&N carry his book on the store

1 In FTC v. Accusearch, Inc., 2007 U.S. Dist. LEXIS 74905 (D. Wyo. Sept. 28, 2007), theFederal Trade Commission (FTC) sued the owner of a website and others alleging that they

engaged in unfair business practices by obtaining and selling confidential customer phonerecords without the affected customers' authorization. The Court refused to apply CDA 230immunity. Id. at *8. By soliciting request for phone records and purchasing them for resaleCDA immunity did not apply. Id. at *16. Here, evidence to be adduced in discovery will showthat B&N was aware of the false statements in Sinclairs book and marketing materials, butnevertheless solicited the defamatory material and published/distributed it in reckless disregardfor the truth or falsity.



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shelves. (Dkt. No. 77, Decl. 28 & Ex. Y). Neither B&N nor Sinclair can deny that the video is

authentic pursuant to FRE 901(4), (5) (distinctive characteristics and voice identification). We

are happy to allow the videotape to speak for itself. Scott v. Harris, 550 U.S. 372 (2007). The

video is relevant. Sinclair explained that B&N does not directly put a new book on its shelves.

There is a process, which entails the publisher providing a copy of the book to B&Ns corporate

office and a marketing plan with a letter explaining what makes the book unique and a book that

B&N will be able to sell. Sinclair stated that he was preparing the documentation for B&N, that

it would be sent to its New York office, and that [w]e will get the book in the stores. (Id.).

Further, while B&N asserts that the book was sold exclusively on barnesandnoble.com

(Dkt. No. 87-1 at 11, emphasis in original), B&N did not move to strike plaintiffs Ex. E, which

is a receipt for a purchase of Sinclairs book on June 11, 2010 from B&Ns retail store at 3040 M

Street, NW, Washington, DC. (Dkt. No. 77, Decl. 8 & Ex. E). There is an ample basis on

which to find a disputed issue of material fact.

III. EX. J IS RELEVANT TO B&NS KNOWLEDGE.In addition to plaintiffs response above, Ex. J creates a disputed issue of material fact

that a self-publishing/publish on demand company, Aardvark, refused to publish Sinclairs book

and that B&N knew it. The exhibit quotes an email from an Aardvark employee stating that it

removed the Sinclair listing from its website due to the nature of the book. Discovery will

confirm Aardvarks refusal to publish the book. B&Ns knowledge of Aardvarks action with

respect to Sinclairs manuscript is legally relevant. (See, e.g., Dkt. No. 77 at 11-18). This case is

certainly on par with Brandewyne v. Author Solutions, Inc., Mem. Decision, Case No. 04-CV-

4363 (18th Judicial Dist. Ct., Kansas Aug. 3, 2006) (Dkt. No. 61, Decl. Ex. 19). There, Brock

wrote a book about his ex-wife, Brandewyne, which alleged that Brandewyne was a child

abuser, drug abuser, plagiarizer and felon, who had adulterous affairs and hired a hit man to kill



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Brock. Brandewyne sued Brock and his self publishing company that printed the book,

AuthorHouse. A jury found Authorhouse liable and returned a verdict for $230,000. The

Kansas Court subsequently ruled that Authorhouse must pay $240,000 in punitive damages. The

Court found that AuthorHouse was responsible for the damages because the company knew that

Brock did not want to spend money on printing the book only to have it canceled because of its

content and concerns with libel issues, as other publishers had done. Mem. Decision at 4.

AuthorHouse argued it merely printed the book after Brock signed a contract taking full

responsibility for the contents. In addition, the company said, only three copies of the book were

sold. While an online publisher cannot be expected to read every book from every customer,

given Brocks description of his own book, a responsible publisher would make some effort to

screen the content of the book at issue in this case before accepting the book for publication. Id.

at 10.

Here, too, B&Ns knowledge would provide a basis for liability. B&N argues that as a

mere bookseller, it cannot be expected to read every book. However, if B&N was aware that

Aardvark or other publishers/printers refused to publish or print Sinclairs manuscript, liability

would attach.

Also illustrative is a recent example of another bookseller that claims CDA immunity,

defendant Amazon. In November 2010, stories surfaced that Amazon is selling a self-published

book defending pedophiles, sparking discussions about the retailer's obligation to vet items

before they are sold in its online stores. The book, The Pedophile's Guide to Love and Pleasure:

a Child-lover's Code of Conduct by Philip R. Greaves II, offers advice to pedophiles afraid of

becoming the center of retaliation. It is an electronic book available for Amazon.com Inc.'s



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Kindle e-reader. (Declaration of Richard J. Oparil annexed hereto (Opp. Decl.) Ex. 1).

Amazons Product Description for the book read:

This is my attempt to make pedophile situations safer for those

juveniles that find themselves involved in them, by establishingcertian [sic] rules for these adults to follow. I hope to achieve thisby appealing to the better nature of pedosexuals, with hope thattheir doing so will result in less hatred and perhaps liter [sic]sentences should they ever be caught.

(Opp. Decl. Ex. 2). Customer reviews were pointedly negative. (See, e.g., id. (As a mother of a

child who has been molested, shame on Amazon for allowing such garbage to be sold on it's site.

The author of this book is a predator and should never have been allowed to write or promote

this trash that is called a book of information. How many children will be assaulted because of

this. Amazon-take it off your site.). Amazons sale of the book prompted negative media

coverage. (See, e.g., Opp. Decl. Exs. 3, 4). Thereafter, despite having purported CDA

immunity, Amazon withdrew the book and it was no longer sold. (See, e.g., Opp. Decl. Ex. 5).

The author of the book has now been arrested for distributing obscene material. (Decl. Opp. Exs.

6, 7).2

Thus, when an infamous book that becomes the subject of public attention through

customer reviews and the media, a bookseller, such as Amazon, has no problem stopping all

sales of that book. Here, the evidence will show that B&N became aware of the false and

defamatory contents of Sinclairs book, but continued to sell it anyway. B&Ns knowledge is

2 In 1998, a state grand jury indicted B&N on charges of child pornography for selling

books containing photographs of nude children. (Opp. Decl. Ex. 8).In addition, whether Parisi is a limited public figure is a question of fact. B&Ns own

evidence shows that Parisi has had no involvement with any adult entertainment enterprise whenSinclairs book was published. (See, e.g., Dkt. No. 86 at 15 n.6, citing Al Kamen, WhiteHouse [sic] About-Face, Wash. Post, Feb. 13, 2006 (Dan Parisi, president of Whitehouse.com,the former porn site.). Moreover, B&Ns argument also refers to two articles about Sinclairmention only Whitehouse.com, not Parisi. (Dkt. No. 86 at 15 n.7). Thus, Whitehouse.gov mightbe a limited public figure, but not Parisi.



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relevant and evidence that points to such knowledge or provides avenues for discovery of such

knowledge is relevant and the exhibits should not be stricken.

The specific reasons as to why Aardvark did not print Sinclairs book and, in particular,

B&Ns knowledge thereof is an issue of fact on which plaintiffs have had no discovery. Ex. J

properly supports the denial or continuance of B&Ns summary judgment motion. (Dkt. No. 77,

Decl. 10).3

IV. EXS. K, M, AND N AND DISCOVERY RELATED TO THEM ARE RELEVANTTO SHOW B&NS KNOWLEDGE.

In addition to the authenticity argument above regarding Exs. K, M, and N, there are no

disputed issues of material fact as to B&Ns knowledge of the nature and contents of Sinclairs

book. (Dkt. No. 87-1 at 9). B&N argues that the exhibits are not relevant because they

purportedly do not show that a senior employee had knowledge. The knowledge of a

companys employees is attributed to the company. See, e.g., United States v. Science

Applications Intl Corp., 555 F.Supp.2d 40, 55 (D.D.C. May 15, 2008) ([c]orporations are

liable for the collective knowledge of all employees and agents within (and acting on behalf of)

the corporation. (quoting United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 893-94

(D.D.C. 2006)); id. at 56 (In this case, the government has certainly presented evidence

suggesting that there was at least one SAIC employee who knew that SAIC was bidding for the

NRC Contracts . . . . Thus, the government's evidence is sufficient to raise a genuine dispute of

fact regarding whether SAICs no-OCI certifications were knowingly false.); Bunge Corp. v.

Director, Office of Workers Compensation, 951 F.2d 1109, 1111 (9th Cir. 1991) (If the

condition is readily discoverable from the employees medical record in the possession of the

3 It appears that Sinclairs self-publishing company, defendant Sinclair Publishing, Inc.,will not comply with the Courts deadline to engage counsel by today. (Opp. Decl. Ex. 9).



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employer, knowledge of the condition is imputed to the employer.); Georgia-Pacific Corp. v.

Great Plains Bag Co., 614 F.2d 757, 762-63 (Cust. & Pat. App. 1980) (knowledge of a

salesperson will be imputed to the corporation); United States v. Hangar One, Inc., 563 F.2d

1155, 1158 (5th Cir. 1977) (a corporation will be liable for violations of the False Claims Act if

its employees were acting within the scope of their authority and for the purpose of benefitting

the corporation even if those employees lacked substantial authority and broad responsibility.);

Hoechst Celanese Corp. v. National Union Fire Ins. Co., 1994 WL 721786, *4 (Del. Super. Apr.

22, 1994) (knowledge of the lower employees may be imputed to the corporation.).

Moreover, an employer is responsible for the actions or inactions of an employee in the

regular course of her employment. See, e.g., Sheppard v. United States, 640 F. Supp. 2d 29, 34

(D.D.C. 2009) (an employer may be held liable for the tortious acts of an employee committed

within the scope of his employment. There are two requirements to establish respondeat

superior liability: (1) the existence of an employer-employee relationship, and (2) the tortious

conduct occurs while the employee is acting within the scope of his employment.); Hechinger

Co. v. Johnson, 761 A.2d 15, 24 (D.C. 2000) ("Respondeat superior is a doctrine of vicarious

liability which imposes liability on employers for the torts committed by their employees within

the scope of their employment. Under the doctrine, an employer is subjected to liability for acts

of his employee because of his employment and in furtherance of the employer's interests. If the

employee's actions are only done to further his own interests, the employer will not be held

responsible.) (internal footnote, citations and quotations omitted).

Responding to complaints related to books such as Sinclairs and book reviews is part of

their job and B&N is responsible for their actions or inactions. Also, discovery will show that a

branch manager is not a low level employee, he or she is someone entrusted with the



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responsibility of running a multimillion dollar store operation. There is no dispute that Sinclair

was in contact with B&N employees. This is similar to defendant in Brandywyne telling

salesperson that the book in that case had been blackballed by another print on demand company.

B&N is still liable for the actions of their employees. Here, B&N concedes that it asked a

junior level employee to review the posts to determine whether they complied with its Terms of

Use. (Dkt. No. 87-1 at 9). B&Ns knowledge of Sinclairs book and the false statements

therein is relevant. (Id.). The exhibits should not be stricken and discovery should proceed.

Finally, B&N cannot escape the fact that Citizen Wells, a Sinclair supporter, sent an

email to B&Ns Senior Vice President for Corporate Communications, Mary Ellen Keating,

which included comments giving notice that Sinclairs book contained false statements. Thus,

the exhibit should not be stricken.

CONCLUSION

For all the foregoing reasons, B&Ns motion to strike should be denied.

Dated: December 20, 2010 Respectfully submitted,

/s/ Richard J. OparilRichard J. Oparil (D.C. Bar No. 409723)PATTON BOGGS LLP2550 M Street, NWWashington, DC 20037(202) 457-6000(202) 457-6315 (fax)

Kevin M. BellPATTON BOGGS LLP8484 Westpark DriveMcLean, VA 22102(703) 744-8000(703) 744-8001 (fax)

Attorneys for Plaintiffs



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CERTIFICATE OF SERVICE

I hereby certify that on December 20, 2010, a copy of the foregoing was served on the

parties and counsel for the parties that have appeared in the case by the Courts ECF system.

s/ Richard J. OparilRichard J. Oparil (DC Bar No. 409723)



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Parisi v Sinclair: 92 Memorandum in opposition to re 87 MOTION to Strike 77

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Transcript of Parisi v Sinclair: 92 Memorandum in opposition to re 87 MOTION to Strike 77