Tuesday, November 15, 2011
Want to Defame Someone and be FOREVER Immune to Any Legal Action? Try looking deep at Obsidian v. Cox for some Tips, I Call it the David Aman Tonkon Torp Defamation Immunity.
NOTICE: This post is not Meant to Defame poor ol' Mr. Aman or Tonkon Torp, it is simply to poke fun at the system, and to get you, the reader to think about this stuff. Please find your OWN "Facts" and do not rely on anything I say as being actual "Fact".
Ok, So want to Defame Someone, maybe even rile up hatred against them... well use what I call the David Aman, Tonkon Torp LLP way. See you make up stuff about someone, you lie about their intentions, you excuse them of extortion and all kinds of bad behavior. Such as David Aman, Attorney for Plaintiff did to me, And you never have to prove actual malice or any other law. See, in Obsidian V. Cox, David Aman Plaintiff for the Attorney filed a frivolous 10 Million Dollar Lawsuit against a blogger. And though Plaintiff never EVER asked for a retraction or even a change of that post, still Plaintiff sues blogger Crystal L. Cox, me for 10 Million Dollars.
In this filing, Plaintiff Obsidian Finance Group accused Investigative Blogger Crystal L. Cox of crimes, of fraud, of personal gain and all kinds of false, defamatory, and even inflammatory to the public information, based on no real fact. Turns out in a complaint you can say whatever you like, then it is a federal filing.
One that is picked up by the Blogsphere.
Once this case is filed, and no matter what the Complaint or internal documents say, well its now public domain and is immune from lawsuits. My counter claim included accusations that this case defamed me, and the judge in this case quoted this law as the reason is because it is a judicial proceeding therefore there is Absolute Privilege in the information that is on the Internet regarding it..
This is the Case that the Judge in this Case Quoted to deny my defamation counter claim.
Ok, So want to Defame Someone, maybe even rile up hatred against them... well use what I call the David Aman, Tonkon Torp LLP way. See you make up stuff about someone, you lie about their intentions, you excuse them of extortion and all kinds of bad behavior. Such as David Aman, Attorney for Plaintiff did to me, And you never have to prove actual malice or any other law. See, in Obsidian V. Cox, David Aman Plaintiff for the Attorney filed a frivolous 10 Million Dollar Lawsuit against a blogger. And though Plaintiff never EVER asked for a retraction or even a change of that post, still Plaintiff sues blogger Crystal L. Cox, me for 10 Million Dollars.
In this filing, Plaintiff Obsidian Finance Group accused Investigative Blogger Crystal L. Cox of crimes, of fraud, of personal gain and all kinds of false, defamatory, and even inflammatory to the public information, based on no real fact. Turns out in a complaint you can say whatever you like, then it is a federal filing.
One that is picked up by the Blogsphere.
Once this case is filed, and no matter what the Complaint or internal documents say, well its now public domain and is immune from lawsuits. My counter claim included accusations that this case defamed me, and the judge in this case quoted this law as the reason is because it is a judicial proceeding therefore there is Absolute Privilege in the information that is on the Internet regarding it..
This is the Case that the Judge in this Case Quoted to deny my defamation counter claim.
"" Wallulis v. Dymowski, 323 Or. 337, 348, 918 P.2d 755, 761 (1996) (statements made in judicial proceedings are absolutely privileged); Wollam v. Brandt, 154 Or. App. 156, 162 n.5, 961 P.2d 219, 222 n. 5 (1998) (absolute privilege applies not only to defamation action, but "to any tort action based on statements made in connection with a judicial proceeding"). ""
So no matter what is said, or it's truth or not, bloggers, reporters and others pick up this information that folks like David Aman, Tonkon Torp attorney for the Plaintiff in Obsidian v. Cox, say - AND next thing you KNOW it is all over the internet with absolute immunity under absolute privilege. Which in my case is really a double standard as the blog post I am on trial for is also based on a judicial proceeding. So interested in Defamation Law, Absolute Immunity in "Absolute Privilege" is sure something to think about. So instead of blogging, it seems you file a federal court case talking about all you want in your blog, and then the courts let these documents out to bloggers for you and wa la, trash talk about you, accusations of illegal and despicable behavior with no base in truth and you are, as David Aman, Plaintiff for Attorney, Forever Immune.
Tuesday, November 8, 2011
Milo v. Martin
"Walter Milo and Anthony Shelton sued Guy Martin, Bill Cochran, Melvin Douglas, and Sandy Martin, the editors and coordinator of The Conroe Watchdog (collectively "The Watchdog"), a website that describes itself as providing "[t]he unfiltered truth about Conroe politics and your tax dollars."
According to the court on appeal, Milo and Shelton sued for comments posted in October 2006 by anonymous users on a portion of the website titled "Guest Book." These comments referred to Shelton as a "pulpit pimp" and that he drove a $90,000 Hummer, according to the Houston Community Newspapers (HCN). Also according to HCN, the comments also contained allegations that Milo committed a drug crime in 2005 and "cut a deal" with the district attorney, reducing his sentence to probation.
The trial court granted The Watchdog's no-evidence motion for summary judgment in December 2008. The summary judgment was upheld by the Court of Appeals of Texas on April 29, 2010, which pointed to lack of evidence that the anonymous posts were created by The Watchdog and Section 230 of the Communications Decency Act. According to HCN, this case was the last of three lawsuits claiming defamation against The Watchdog to be resolved. Dixon v. Martin ended in July 2008 when a jury ruled for The Watchdog (see Legal Threat Entry) and a third lawsuit filed by Rigby Owen, Jr. was withdrawn in October 2009.
Related Links:
Judge Horton's Opinion Affirming Trial Court's Summary Judgment, Leagle.com.
Eric Goldman, Website Gets 230 Immunity Despite Claim of Site Content Accuracy -- Milo v. Martin, Technology & Marketing Law Blog, Apr. 30, 2010.
Nancy Flake, Watchdog Wins Lawsuit Appeal, Houston Community Newspapers, May 3, 2010.
Nancy Flake, Judge Dismisses Second Watchdog Defamation Suit, Houston Community Newspapers, Jan. 4, 2009.
CMLP Legal Threat Entry: Dixon v. The Watchdog"
Source
http://www.citmedialaw.org/threats/milo-v-martin#description
According to the court on appeal, Milo and Shelton sued for comments posted in October 2006 by anonymous users on a portion of the website titled "Guest Book." These comments referred to Shelton as a "pulpit pimp" and that he drove a $90,000 Hummer, according to the Houston Community Newspapers (HCN). Also according to HCN, the comments also contained allegations that Milo committed a drug crime in 2005 and "cut a deal" with the district attorney, reducing his sentence to probation.
The trial court granted The Watchdog's no-evidence motion for summary judgment in December 2008. The summary judgment was upheld by the Court of Appeals of Texas on April 29, 2010, which pointed to lack of evidence that the anonymous posts were created by The Watchdog and Section 230 of the Communications Decency Act. According to HCN, this case was the last of three lawsuits claiming defamation against The Watchdog to be resolved. Dixon v. Martin ended in July 2008 when a jury ruled for The Watchdog (see Legal Threat Entry) and a third lawsuit filed by Rigby Owen, Jr. was withdrawn in October 2009.
Related Links:
Judge Horton's Opinion Affirming Trial Court's Summary Judgment, Leagle.com.
Eric Goldman, Website Gets 230 Immunity Despite Claim of Site Content Accuracy -- Milo v. Martin, Technology & Marketing Law Blog, Apr. 30, 2010.
Nancy Flake, Watchdog Wins Lawsuit Appeal, Houston Community Newspapers, May 3, 2010.
Nancy Flake, Judge Dismisses Second Watchdog Defamation Suit, Houston Community Newspapers, Jan. 4, 2009.
CMLP Legal Threat Entry: Dixon v. The Watchdog"
Source
http://www.citmedialaw.org/threats/milo-v-martin#description
Jerrold Darm v. Tiffany Craig
"In July 2011, medical spa doctor Jerrold "Jerry" Darm sued blogger Tiffany Craig for defamation in Multnomah County Circuit Court in Oregon. Darm alleged that Craig defamed him when she wrote about a 2001 disciplinary order against the doctor from the Oregon Board of Medical Examiners.
Craig wrote on June 30, 2011, on her blog that Darm was reprimanded for demanding sex from a patient, and that Darm was required to have a chaperone when examining adult female patients. The order in fact states that Darm touched and kissed the patient, from which the patient inferred Darm was seeking sex. The order did require the presence of a chaperone for Darm's treatment of adult female patients. Craig did not mention that the order against Darm was lifted in 2009.
According to OregonLive.com, Craig moved in August to dismiss Darm's lawsuit under Oregon's anti-SLAPP laws. Craig argued that "'the gist' of the blog entry is true and the statements, in context with a provided hyperlink to state medical board records, were opinions based on those facts." Craig also argued that Darm, as a prominent local doctor, is a public figure. Darm argued that because he never treated Craig, his record is not a matter of public interest.
OregonLive.com also reports that the court ruled in September that the case is a matter of public interest, and that Twitter is a public forum. A hearing is set for Oct. 20, when Darm will have to present a viable defamation claim."
Source
http://www.citmedialaw.org/threats/darm-v-craig
Tiffany Craig's Blog
http://www.criminallyvulgar.com/2011/06/dr-darm-and-missing-medical-license.html
http://www.criminallyvulgar.com/
Craig wrote on June 30, 2011, on her blog that Darm was reprimanded for demanding sex from a patient, and that Darm was required to have a chaperone when examining adult female patients. The order in fact states that Darm touched and kissed the patient, from which the patient inferred Darm was seeking sex. The order did require the presence of a chaperone for Darm's treatment of adult female patients. Craig did not mention that the order against Darm was lifted in 2009.
According to OregonLive.com, Craig moved in August to dismiss Darm's lawsuit under Oregon's anti-SLAPP laws. Craig argued that "'the gist' of the blog entry is true and the statements, in context with a provided hyperlink to state medical board records, were opinions based on those facts." Craig also argued that Darm, as a prominent local doctor, is a public figure. Darm argued that because he never treated Craig, his record is not a matter of public interest.
OregonLive.com also reports that the court ruled in September that the case is a matter of public interest, and that Twitter is a public forum. A hearing is set for Oct. 20, when Darm will have to present a viable defamation claim."
Source
http://www.citmedialaw.org/threats/darm-v-craig
Tiffany Craig's Blog
http://www.criminallyvulgar.com/2011/06/dr-darm-and-missing-medical-license.html
http://www.criminallyvulgar.com/
Obsidian Financial LLC v. Crystal L. Cox Investigative Blogger
What John Sharkey Defamation Blogger has To say On Obsidian Financial LLC v. Crystal L. Cox Investigative Blogger
http://www.citmedialaw.org/threats/obsidian-finance-group-v-cox
http://www.citmedialaw.org/blog/2011/why-blogs-cant-be-trusted-or-statements-made-here-are-not-likely-provable-assertions-fact
More Defamation Cases of Interest
http://www.citmedialaw.org/taxonomy/term/74/legal_threat
http://www.citmedialaw.org/threats/obsidian-finance-group-v-cox
http://www.citmedialaw.org/blog/2011/why-blogs-cant-be-trusted-or-statements-made-here-are-not-likely-provable-assertions-fact
More Defamation Cases of Interest
http://www.citmedialaw.org/taxonomy/term/74/legal_threat
Monday, November 7, 2011
Friday, November 4, 2011
Thursday, November 3, 2011
Oregon's Retraction Statute
"OREGON’S RETRACTION STATUTE:
Truth is an absolute defense to an action for defamation; if the statement is true, a media defendant cannot be liable for publishing it. The Oregon legislature, however, has provided another way for a media defendant to attempt to insulate itself from some of the damages that might result from a defamatory statement.
Oregon’s Retraction Statute, ORS 30.150-30.175, provides that a plaintiff may not recover so-called general damages (damages which are not measurable by proof of a specific monetary loss. In the context of defamation, general damages are designed to compensate the plaintiff for the harm to reputation -a harm which is not measurable in a money loss.) unless a correction or retraction is demanded but not published.
Otherwise, the only way a plaintiff might recover general damages is if he or she can prove that the media defendant actually intended to defame him or her — a very high standard to meet. Even in that situation, the publication of a correction or retraction may be considered to mitigate the plaintiff’s damages.
The retraction procedure allows an allegedly defamed person or his or her attorney to make a written demand for correction or retraction that must be delivered to the publisher of the statement — either personally, by registered mail, or by certified mail, return receipt requested — at the publisher’s place of business or residence within 20 days after the defamed person first becomes aware of the defamatory statement.
The demand for retraction must specify which statements are false and defamatory and request that they be corrected or retracted. In addition, the demand may refer to the sources from which the true facts may be accurately ascertained. The publisher then has two weeks after receiving the demand for retraction to investigate the demand and determine whether to publish a correction or retraction.
The retraction must appear in the first issue published, or first broadcast made, after the expiration of the two-week deadline. The content of the retraction should substantially state that the defamatory statements previously made are not factually supported, and that the publisher regrets their original publication.
Finally, the correction or retraction must be published in substantially as conspicuous manner as was the defamatory statement. In other words, a retraction regarding an article that appeared in the front page of a newspaper should not run in the classifieds section.
Publishers and broadcasters would generally be wise to consider publishing corrections or retractions, even when the demand suffers from a procedural defect, because the retraction statute provides a relatively cost-free method of eliminating a potential plaintiff’s claim for general damages.
Oregon courts have held that the retraction statute does not violate the Oregon constitution and that it applies only to publishers and broadcasters, and not to individual defendants whose statements happened to be published or broadcast.
In a case entitled Schenck v. Oregon Television, Inc., the Oregon Court of Appeals recently decided that each time an allegedly defamatory statement is republished, the defamed person is allowed a two-week opportunity to demand retraction. In the Schenck case, a television station broadcast a news report in October 1993 that contained an allegedly defamatory statement about the plaintiff. In March of 1994, the same report was re-broadcast.
Although he was aware of the October 1993 broadcast, the plaintiff did not demand a retraction until April 11, 1994, within 20 days after the March 1994 broadcast.
The Court of Appeals held that the plaintiff’s demand for retraction was not untimely — notwithstanding the fact that he had actual knowledge of the defamatory statement five months earlier — because “each publication is a discrete tort.”
Source of Post
http://www.open-oregon.com/media-guide/chapter-12-defamation/
Truth is an absolute defense to an action for defamation; if the statement is true, a media defendant cannot be liable for publishing it. The Oregon legislature, however, has provided another way for a media defendant to attempt to insulate itself from some of the damages that might result from a defamatory statement.
Oregon’s Retraction Statute, ORS 30.150-30.175, provides that a plaintiff may not recover so-called general damages (damages which are not measurable by proof of a specific monetary loss. In the context of defamation, general damages are designed to compensate the plaintiff for the harm to reputation -a harm which is not measurable in a money loss.) unless a correction or retraction is demanded but not published.
Otherwise, the only way a plaintiff might recover general damages is if he or she can prove that the media defendant actually intended to defame him or her — a very high standard to meet. Even in that situation, the publication of a correction or retraction may be considered to mitigate the plaintiff’s damages.
The retraction procedure allows an allegedly defamed person or his or her attorney to make a written demand for correction or retraction that must be delivered to the publisher of the statement — either personally, by registered mail, or by certified mail, return receipt requested — at the publisher’s place of business or residence within 20 days after the defamed person first becomes aware of the defamatory statement.
The demand for retraction must specify which statements are false and defamatory and request that they be corrected or retracted. In addition, the demand may refer to the sources from which the true facts may be accurately ascertained. The publisher then has two weeks after receiving the demand for retraction to investigate the demand and determine whether to publish a correction or retraction.
The retraction must appear in the first issue published, or first broadcast made, after the expiration of the two-week deadline. The content of the retraction should substantially state that the defamatory statements previously made are not factually supported, and that the publisher regrets their original publication.
Finally, the correction or retraction must be published in substantially as conspicuous manner as was the defamatory statement. In other words, a retraction regarding an article that appeared in the front page of a newspaper should not run in the classifieds section.
Publishers and broadcasters would generally be wise to consider publishing corrections or retractions, even when the demand suffers from a procedural defect, because the retraction statute provides a relatively cost-free method of eliminating a potential plaintiff’s claim for general damages.
Oregon courts have held that the retraction statute does not violate the Oregon constitution and that it applies only to publishers and broadcasters, and not to individual defendants whose statements happened to be published or broadcast.
In a case entitled Schenck v. Oregon Television, Inc., the Oregon Court of Appeals recently decided that each time an allegedly defamatory statement is republished, the defamed person is allowed a two-week opportunity to demand retraction. In the Schenck case, a television station broadcast a news report in October 1993 that contained an allegedly defamatory statement about the plaintiff. In March of 1994, the same report was re-broadcast.
Although he was aware of the October 1993 broadcast, the plaintiff did not demand a retraction until April 11, 1994, within 20 days after the March 1994 broadcast.
The Court of Appeals held that the plaintiff’s demand for retraction was not untimely — notwithstanding the fact that he had actual knowledge of the defamatory statement five months earlier — because “each publication is a discrete tort.”
Source of Post
http://www.open-oregon.com/media-guide/chapter-12-defamation/
"If you’ve been sued, how do you know if you’ve been SLAPPed?
SLAPPs all arise out of expressive activity which is directed to public concerns and protected by the First Amendment. Often, SLAPPs are “camouflaged” as ordinary civil lawsuits; among the most often used legal theories are the following:
Defamation. Broadly defined, this is an alleged intentional false communication, which is either published in a written form (libel) or publicly spoken (slander), that injures one’s reputation.
Malicious Prosecution or Abuse of Process. A “malicious prosecution” is a criminal or civil lawsuit which is begun with knowledge that the case lacks merit, and which is brought for a reason (such as, to harass or annoy) other than to seek a judicial determination of the claim. The use of the legal process to intimidate or to punish the person against whom the suit is brought is generally referred to as “abuse of process.”
Invasion of Privacy. This refers to the unlawful use or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities.
Conspiracy. A conspiracy is an alleged agreement between two or more persons to commit an illegal, unlawful, or wrongful act.
Interference With Contract or Economic Advantage. This is based on the alleged commission of an act with the intent to interfere with or cause a breach of a contract between two people, or hinder a business relationship which exists between those persons.
Intentional or Negligent Infliction of Emotional Distress. This is based on an alleged commission of some outrageous act with the intent and knowledge that the act will result in severe mental or emotional anguish of another.
Nuisance. This includes everything that endangers, or may endanger, life or health, gives offense to the senses, violates the laws of decency, or obstructs, or may obstruct, the use and enjoyment of property.
Injunction. The lawsuit seeks a temporary restraining order or an injunction against First Amendment activity.
This list is not exhaustive. The specific legal theory upon which a suit is based does not necessarily determine whether a particular case is a SLAPP, although malicious prosecution and abuse of process claims will generally be subject to the anti-SLAPP law. The other claims listed above are not necessarily SLAPPs. If the lawsuit arises from constitutionally protected speech or petition activity, then the suit is a SLAPP.
It is important to recognize that SLAPP filers are not all malicious, any more than SLAPP targets are all well intentioned. The parties’ subjective motives – bad faith, intent, frivolousness, intimidation, or even rightness or wrongness on the merits – are irrelevant to whether the anti-SLAPP law applies. The critical issue is whether the claim arises from protected expressive activity."
Source of post
http://www.casp.net/sued-for-freedom-of-speech-california/is-my-defamation-libel-slander-internet-speech-lawsuit-a-slapp/
SLAPPs all arise out of expressive activity which is directed to public concerns and protected by the First Amendment. Often, SLAPPs are “camouflaged” as ordinary civil lawsuits; among the most often used legal theories are the following:
Defamation. Broadly defined, this is an alleged intentional false communication, which is either published in a written form (libel) or publicly spoken (slander), that injures one’s reputation.
Malicious Prosecution or Abuse of Process. A “malicious prosecution” is a criminal or civil lawsuit which is begun with knowledge that the case lacks merit, and which is brought for a reason (such as, to harass or annoy) other than to seek a judicial determination of the claim. The use of the legal process to intimidate or to punish the person against whom the suit is brought is generally referred to as “abuse of process.”
Invasion of Privacy. This refers to the unlawful use or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities.
Conspiracy. A conspiracy is an alleged agreement between two or more persons to commit an illegal, unlawful, or wrongful act.
Interference With Contract or Economic Advantage. This is based on the alleged commission of an act with the intent to interfere with or cause a breach of a contract between two people, or hinder a business relationship which exists between those persons.
Intentional or Negligent Infliction of Emotional Distress. This is based on an alleged commission of some outrageous act with the intent and knowledge that the act will result in severe mental or emotional anguish of another.
Nuisance. This includes everything that endangers, or may endanger, life or health, gives offense to the senses, violates the laws of decency, or obstructs, or may obstruct, the use and enjoyment of property.
Injunction. The lawsuit seeks a temporary restraining order or an injunction against First Amendment activity.
This list is not exhaustive. The specific legal theory upon which a suit is based does not necessarily determine whether a particular case is a SLAPP, although malicious prosecution and abuse of process claims will generally be subject to the anti-SLAPP law. The other claims listed above are not necessarily SLAPPs. If the lawsuit arises from constitutionally protected speech or petition activity, then the suit is a SLAPP.
It is important to recognize that SLAPP filers are not all malicious, any more than SLAPP targets are all well intentioned. The parties’ subjective motives – bad faith, intent, frivolousness, intimidation, or even rightness or wrongness on the merits – are irrelevant to whether the anti-SLAPP law applies. The critical issue is whether the claim arises from protected expressive activity."
Source of post
http://www.casp.net/sued-for-freedom-of-speech-california/is-my-defamation-libel-slander-internet-speech-lawsuit-a-slapp/
Are Blogs Media? It Depends on If you Qualify for that Label.
"Do blogs have the same constitutional protections as mainstream media?
Yes. The US Supreme Court has said that "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities.""
Source
https://www.eff.org/issues/bloggers/legal/liability/defamation
Yes. The US Supreme Court has said that "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities.""
Source
https://www.eff.org/issues/bloggers/legal/liability/defamation
"New York Times Co. v. Sullivan, 376 U.S. 254 (1964),[1] was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel[2];"
"Alabama law denied a public officer recovery of punitive damages in a libel action brought on account of a publication concerning their official conduct unless they first make a written demand for a public retraction and the defendant fails or refuses to comply, so Sullivan sent such a request.[1] The Times did not publish a retraction in response to the demand. Instead it wrote a letter[citation needed] stating, among other things, that "we ... are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you".[1] Sullivan did not respond but instead filed this suit a few days later. He also sued four black ministers mentioned in the ad, specifically Ralph Abernathy, S.S. Seay, Sr., Fred Shuttlesworth, andJoseph Lowery. Sullivan won $500,000 in an Alabama court judgment.[citation needed]"
Source and More Information
http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
"Alabama law denied a public officer recovery of punitive damages in a libel action brought on account of a publication concerning their official conduct unless they first make a written demand for a public retraction and the defendant fails or refuses to comply, so Sullivan sent such a request.[1] The Times did not publish a retraction in response to the demand. Instead it wrote a letter[citation needed] stating, among other things, that "we ... are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you".[1] Sullivan did not respond but instead filed this suit a few days later. He also sued four black ministers mentioned in the ad, specifically Ralph Abernathy, S.S. Seay, Sr., Fred Shuttlesworth, andJoseph Lowery. Sullivan won $500,000 in an Alabama court judgment.[citation needed]"
Source and More Information
http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
Oregon Special Motion to Strike
" (a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;
(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection
(2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.
(4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(5) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim:
(a) The fact that the determination has been made and the substance of the determination may not be admitted in evidence at any later stage of the case; and
(b) The determination does not affect the burden of proof or standard of proof that is applied in the proceeding. [Formerly 30.142; 2009 c.449 §1]
Note: Section 2, chapter 449, Oregon Laws 2009, provides:
Sec. 2. The amendments to ORS 31.150 by section 1 of this 2009 Act apply only to special motions to strike filed under ORS 31.150 on or after the effective date of this 2009 Act [January 1, 2010]. [2009 c.449 §2]
31.152 Time for filing special motion to strike; discovery; attorney fees. (1) A special motion to strike under ORS 31.150 must be filed within 60 days after the service of the complaint or, in the court’s discretion, at any later time. A hearing shall be held on the motion not more than 30 days after the filing of the motion unless the docket conditions of the court require a later hearing.
(2) All discovery in the proceeding shall be stayed upon the filing of a special motion to strike under ORS 31.150. The stay of discovery shall remain in effect until entry of the judgment. The court, on motion and for good cause shown, may order that specified discovery be conducted notwithstanding the stay imposed by this subsection.
(3) A defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to a plaintiff who prevails on a special motion to strike.
(4) The purpose of the procedure established by this section and ORS 31.150 and 31.155 is to provide a defendant with the right to not proceed to trial in cases in which the plaintiff does not meet the burden specified in ORS 31.150 (3). This section and ORS 31.150 and 31.155 are to be liberally construed in favor of the exercise of the rights of expression described in ORS 31.150 (2). [Formerly 30.144; 2009 c.449 §3]
31.155 Exempt actions; substantive law not affected. (1) ORS 31.150 and 31.152 do not apply to an action brought by the Attorney General, a district attorney, a county counsel or a city attorney acting in an official capacity.
(2) ORS 31.150 and 31.152 create a procedure for seeking dismissal of claims described in ORS 31.150 (2) and do not affect the substantive law governing those claims. [Formerly 30.146]
"
Source
http://www.leg.state.or.us/ors/031.html
(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection
(2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.
(4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(5) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim:
(a) The fact that the determination has been made and the substance of the determination may not be admitted in evidence at any later stage of the case; and
(b) The determination does not affect the burden of proof or standard of proof that is applied in the proceeding. [Formerly 30.142; 2009 c.449 §1]
Note: Section 2, chapter 449, Oregon Laws 2009, provides:
Sec. 2. The amendments to ORS 31.150 by section 1 of this 2009 Act apply only to special motions to strike filed under ORS 31.150 on or after the effective date of this 2009 Act [January 1, 2010]. [2009 c.449 §2]
31.152 Time for filing special motion to strike; discovery; attorney fees. (1) A special motion to strike under ORS 31.150 must be filed within 60 days after the service of the complaint or, in the court’s discretion, at any later time. A hearing shall be held on the motion not more than 30 days after the filing of the motion unless the docket conditions of the court require a later hearing.
(2) All discovery in the proceeding shall be stayed upon the filing of a special motion to strike under ORS 31.150. The stay of discovery shall remain in effect until entry of the judgment. The court, on motion and for good cause shown, may order that specified discovery be conducted notwithstanding the stay imposed by this subsection.
(3) A defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to a plaintiff who prevails on a special motion to strike.
(4) The purpose of the procedure established by this section and ORS 31.150 and 31.155 is to provide a defendant with the right to not proceed to trial in cases in which the plaintiff does not meet the burden specified in ORS 31.150 (3). This section and ORS 31.150 and 31.155 are to be liberally construed in favor of the exercise of the rights of expression described in ORS 31.150 (2). [Formerly 30.144; 2009 c.449 §3]
31.155 Exempt actions; substantive law not affected. (1) ORS 31.150 and 31.152 do not apply to an action brought by the Attorney General, a district attorney, a county counsel or a city attorney acting in an official capacity.
(2) ORS 31.150 and 31.152 create a procedure for seeking dismissal of claims described in ORS 31.150 (2) and do not affect the substantive law governing those claims. [Formerly 30.146]
"
Source
http://www.leg.state.or.us/ors/031.html
Special Motion To Strike,
" SPECIAL MOTION TO STRIKE
31.150 Special motion to strike; when available; burden of proof. (1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section.
The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim.
The special motion to strike shall be treated as a motion to dismiss under ORCP 21 A but shall not be subject to ORCP 21 F.
Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice. If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.
(2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:
(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;
(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection
(2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.
(4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(5) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim:
(a) The fact that the determination has been made and the substance of the determination may not be admitted in evidence at any later stage of the case; and
(b) The determination does not affect the burden of proof or standard of proof that is applied in the proceeding. [Formerly 30.142; 2009 c.449 §1]
Note: Section 2, chapter 449, Oregon Laws 2009, provides:
Sec. 2. The amendments to ORS 31.150 by section 1 of this 2009 Act apply only to special motions to strike filed under ORS 31.150 on or after the effective date of this 2009 Act [January 1, 2010]. [2009 c.449 §2]"
Source and Full Document
http://www.leg.state.or.us/ors/031.html
31.150 Special motion to strike; when available; burden of proof. (1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section.
The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim.
The special motion to strike shall be treated as a motion to dismiss under ORCP 21 A but shall not be subject to ORCP 21 F.
Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice. If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.
(2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:
(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;
(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection
(2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.
(4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(5) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim:
(a) The fact that the determination has been made and the substance of the determination may not be admitted in evidence at any later stage of the case; and
(b) The determination does not affect the burden of proof or standard of proof that is applied in the proceeding. [Formerly 30.142; 2009 c.449 §1]
Note: Section 2, chapter 449, Oregon Laws 2009, provides:
Sec. 2. The amendments to ORS 31.150 by section 1 of this 2009 Act apply only to special motions to strike filed under ORS 31.150 on or after the effective date of this 2009 Act [January 1, 2010]. [2009 c.449 §2]"
Source and Full Document
http://www.leg.state.or.us/ors/031.html
OREGON RULES OF CIVIL PROCEDURE
OREGON RULES OF CIVIL PROCEDURE
http://www.leg.state.or.us/ors/orcpors.htm
http://www.leg.state.or.us/ors/orcpors.htm
Subpoena for Taking Depositions
"F.
Subpoena for Taking Depositions or Requiring Production of Books, Papers, Documents, or Tangible Things; Place of Production and Examination.
Subpoena for Taking Depositions or Requiring Production of Books, Papers, Documents, or Tangible Things; Place of Production and Examination.
- Subpoena for Taking Deposition.
Proof of service of a notice to take a deposition as provided in Rules 39 C and 40 A, or of notice of subpoena to command production of books, papers, documents, or tangible things before trial as provided in subsection D(1) of this rule or a certificate that such notice will be served if the subpoena can be served, constitutes a sufficient authorization for the issuance by a clerk of court of subpoenas for the persons named or described therein.
- Place of Examination. A resident of this state who is not a party to the action may be required by subpoena to attend an examination or to produce books, papers, documents, or tangible things only in the county wherein such person resides, is employed, or transacts business in person, or at such other convenient place as is fixed by an order of court.
A nonresident of this state who is not a party to the action may be required by subpoena to attend an examination or to produce books, papers, documents, or tangible things only in the county wherein such person is served with a subpoena, or at such other convenient place as is fixed by an order of court.
- Production Without Examination or Deposition. A party who issues a subpoena may command the person to whom it is issued, other than a hospital, to produce books, papers, documents, or tangible things by mail or otherwise, at a time and place specified in the subpoena, without commanding inspection of the originals or a deposition.
In such instances the person to whom the subpoena is directed complies if the person produces copies of the specified items in the specified manner and certifies that the copies are true copies of all the items responsive to the subpoena or, if all items are not included, why they are not."
Source and Lots More Information
FEDERAL RULES OF CIVIL PROCEDURE
FEDERAL RULES OF CIVIL PROCEDURE
http://www.law.cornell.edu/rules/frcp/Rule36.htm
http://www.law.cornell.edu/rules/frcp/Rule36.htm
What is a Default Judgment - Judgment in Default of Defense
"Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party.
Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.
Federal Rule 37(b)(iii) also states that a balky plaintiff can be found in default and have his case dismissed if the plaintiff repeatedly fails to comply with things like court orders and discovery requests.
The failure to take action is the default. The default judgment is the relief requested in the party's original petition, which is why initial pleadings are often so exaggerated.
[edit]Varying default judgment
Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.
Federal Rule 37(b)(iii) also states that a balky plaintiff can be found in default and have his case dismissed if the plaintiff repeatedly fails to comply with things like court orders and discovery requests.
The failure to take action is the default. The default judgment is the relief requested in the party's original petition, which is why initial pleadings are often so exaggerated.
Default can be compared to a forfeit victory in sports. In a civil trial involving damages, a default judgment will enter the amount of damages pleaded in the original complaint.
If proof of damages is required, the court may schedule another hearing on that issue. A party can have a default judgment vacated, or set aside, by filing a motion, after the judgment is entered, by showing of a proper excuse.
If proof of damages is required, the court may schedule another hearing on that issue. A party can have a default judgment vacated, or set aside, by filing a motion, after the judgment is entered, by showing of a proper excuse.
Contents[hide] |
[edit]Specific jurisdictions
[edit]England and Wales
[edit]How judgment arises
In England and Wales, a Claimant starts a case by issuing a Claim Form. This either states a monetary figure on it, together with fixed costs and court fees; alternatively if the amount cannot be determined, it will be for an amount 'to be assessed'. A Claimant may not wish to recover money at all, in which case the Claim Form states this.
The Claim Form (together with other documents, known as Particulars of Claim and a Response Pack) are served on the Defendant.
If the Defendant fails to reply within 14 days of service, the Claimant can apply for Judgment in Default, either by simply requesting the court's administrative staff enter judgment filing a request for judgment(which is sufficient for routine cases), or by making a formal application to the Procedural Judge. The judgment is known as Judgment in Default of Acknowledgment of Service.
If the Defendant did acknowledge to the court that the papers were served within the 14 day period, then the Defendant is given 28 days to take a further step. If the Defendant fails to do so, again judgment can be entered as above, this time formally known as Judgment in Default of Defense.
If money is claimed, the Claimant can choose how their judgment will be phrased. Almost always there will be a request that the money claimed, the court fee, and interest at 8% on the money from when the Claim Form was issued up until date of judgment, and if legally represented a fixed contribution to legal costs, be ordered to be paid immediately. However, the Claimant could simply request the Defendant be ordered to pay at a later date or in installments.
If money is claimed but the amount is not fixed, a Disposal Hearing is listed to determine the amount of money.
If any other remedy is claimed, the Claimant would have had to apply to the procedural judge for the Judgment in Default, and therefore the Judge will determine what happens next.
Judgments in Default are covered by Part 12 of the Civil Procedure Rules 1998
[edit]Effect of judgment
The judgment is binding and failure to comply with it means that enforcement action could be taken.
The Defendant's name is also entered onto a register (although if they pay within a month it will be removed) which is open to everyone, and is particularly used to vet the credit-worthiness of people.
In the case of Masters -v- Leaver[1999]EWCA Civ 2016 [1] it was held that a judgment in default means just that - it is a judgment obtained due to default. It does not mean that the court has agreed with what was claimed, or favors one or other case. Therefore if the issue arises again, the Defendant is not prevented from arguing the facts again.
That case also refers to Texan and US law being similar, although of course the English Court has no jurisdiction to determine that point.
[edit]Varying default judgment
If a Defendant accepts the judgment, and the amount, but can't pay, the Defendant should apply to Vary the judgment. A process is gone through whereby the Defendant states how soon they can afford to pay the debt (usually monthly installments) and the Claimant can either accept this, or request another amount.
The court's staff will suggest a figure and ultimately a District Judge (N.B. In England and Wales a District Judge is one of the lowest levels of judge) will make a decision. The decision is binding, even if it means the Claimant is out of their money for a considerable amount of time, and even if interest cannot be charged on the outstanding sum (which it usually can't).
The court's staff will suggest a figure and ultimately a District Judge (N.B. In England and Wales a District Judge is one of the lowest levels of judge) will make a decision. The decision is binding, even if it means the Claimant is out of their money for a considerable amount of time, and even if interest cannot be charged on the outstanding sum (which it usually can't).
[edit]Setting aside default judgment
There are three grounds for canceling ('setting aside') the Default judgment.
- The documents were not served correctly. The Defendant has to show that the documents were not served, which obviously would explain why the Claimant had ability to enter judgment. This has to be done by way of an 'Application on Notice' (motion). Evidence has to be shown to the procedural judge. This used to called setting aside an 'irregular judgment'
- There is some good reason why judgment in default should be set aside. This covers any situation but is commonly used when service was effected properly, but still did not come to the attention of the Defendant (perhaps they were on a long vacation, or in hospital). Many jurisdictions also require the defendant to proffer a meritorious defense before vacating the default judgment.
- There is some good reason why judgment in default should be set aside. This covers any situation but is commonly used when service was effected properly, but still did not come to the attention of the Defendant (perhaps they were on a long vacation, or in hospital). Many jurisdictions also require the defendant to proffer a meritorious defense before vacating the default judgment.
- The Claimant entered judgment when they were not entitled so to do. For example, perhaps a Defense was filed in time, but the Claimant still attempts to enter judgment. The court staff usually check for things like this, but occasionally things slip through the net. It used to be the obligation of the Claimant to apply to set aside their own judgment in these circumstances, but this obligation has recently (in 2005) been dropped.
- The Claimant entered judgment when they were not entitled so to do. For example, perhaps a Defense was filed in time, but the Claimant still attempts to enter judgment. The court staff usually check for things like this, but occasionally things slip through the net. It used to be the obligation of the Claimant to apply to set aside their own judgment in these circumstances, but this obligation has recently (in 2005) been dropped.
In the last circumstance of the above, the Defendant can get the judgment canceled as of right. Otherwise, the Defendant needs to show what their Defense will be, and if the court thinks that the defendant is effectively 'stalling for time' they will not get the judgment set aside.
[edit]Practice
In practice an application to set aside Default Judgment is almost always granted. This fact is seized upon by so-called 'credit repair' companies. A person whose credit record is adversely affected by a registered judgment pays a credit repair company who advises them how to apply to have it set aside. This is usually of little effect: the judgment will be re-entered very quickly if there is no actual defense, and there are usually other records which affect a person's credit rating, not just the judgment.
Pragmatic reasons why judgments are set aside are mainly because on balance, it is seen as better to give a person who may have a good defense extra time, and avoid a potentially devastating judgment, and thereby keep a claimant out of their money for a further two to four weeks, than give the claimant the benefit.
However the court can, and often does, order conditions to be satisfied, such as a draft defense being filed first, money paid into court, or similar conditions.
Setting aside Judgment in Default is covered by Part 13 of the Civil Procedure Rules.
[edit]United States
In the United States the law relating to a default judgment depends upon the jurisdiction within which the civil action was filed. State courts, United States Federal Courts, Tribal Courts and many Administrative Agencies have their own laws and local procedural rules relating to the granting and setting aside of a default judgment. The Federal Rules of Civil Procedure (Rules 55 and 60) are the basis for many procedures in default.
[edit]Entry of default
Typically, the plaintiff (or cross-complainant, cross-plaintiff, counter-claimant, counter-plaintiff, third-party plaintiff, etc.)[1] must show that service of process was effected on the defendant (cross-defendant, counter-defendant, cross-defendant, third-party defendant, etc.).
This is typically achieved by the filing of an affidavit of service[2] (also known as a proof of service),[3] which gives enough information to allow the court to confirm that valid service has been accomplished.[4] Typically the affidavit states, under oath or penalty of perjury, that service was effected on a named defendant, briefly describes how it was effected, names the person who made service, and gives the place and date service was effected.[5]
Once the requisite time to respond to the complaint has passed, the defendant is "in default"; this may be automatic,[6] or it may require the court clerk to enter the default (which may, in turn, require that the plaintiff request entry of the default).[7] Some defaults do not take effect until a set period of time after the clerk acts.[8] The clerk may have to give the defendant notice of his default, affording a chance to have the default vacated.[9]
This is typically achieved by the filing of an affidavit of service[2] (also known as a proof of service),[3] which gives enough information to allow the court to confirm that valid service has been accomplished.[4] Typically the affidavit states, under oath or penalty of perjury, that service was effected on a named defendant, briefly describes how it was effected, names the person who made service, and gives the place and date service was effected.[5]
Once the requisite time to respond to the complaint has passed, the defendant is "in default"; this may be automatic,[6] or it may require the court clerk to enter the default (which may, in turn, require that the plaintiff request entry of the default).[7] Some defaults do not take effect until a set period of time after the clerk acts.[8] The clerk may have to give the defendant notice of his default, affording a chance to have the default vacated.[9]
The entry of a default typically prevents the defaulted defendant from litigating his case or presenting evidence, and may excuse the other parties from giving him notice of further proceedings.[10]
[edit]Relief from default
A defaulted defendant may move the court from relief from his default,[11] but usually must do so promptly[12] and must provide "good cause"[13] for his failure to answer the complaint in time.[14] Often, part of the procedure for relief from default involves the defendant filing an answer to the complaint.[15] The defendant relieved from default may also be required to pay any extra costs and fees incurred by the plaintiff as a result of the delay in the defendant's filing his answer.[16]
[edit]Default judgment
Often, a certain additional time is required before a default judgment is permissible, and there may need to be additional notice to the defendant. Some states do not allow a default judgment to be entered against some defendants while other defendants are actively litigating the same case;[17] this is an application of the "one final judgment" rule. Others will allow "several judgment" (judgment with respect to some defendants at one time, and with respect to others at another time), at least under some circumstances.[18]
United States law (specifically the Servicemembers Civil Relief Act) significantly restricts default judgments against members of the military services.[19] The law requires that before a default judgment may be entered, the plaintiff must make a certification as to the military service status of the defendant whose default is sought.[20] This certification may be made in the complaint, in a document filed with the proof of service, or later. Depending on the circumstances, other requirements may also apply.[21]
Some jurisdictions allow a clerk of court to enter default judgment in certain simple cases.[22] These typically involve no exercise of judgment or discretion.[23] Otherwise, a default judgment must be issued by a judge, who may require the plaintiff to present proof of his claims.[24]
[edit]Relief from default judgment
A defendant who has had a default judgment entered against him may move for an order vacating the judgment.[25] Such a defendant must show "good cause" for his not having responded to the complaint. However, "good cause" is rather easy to meet, compared to other instances where "good cause" might be required.
For example, mere "excusable neglect" is, at least at the federal level, a sufficient reason to vacate default judgments.[26] There are often time limits and other requirements.[27]
For example, mere "excusable neglect" is, at least at the federal level, a sufficient reason to vacate default judgments.[26] There are often time limits and other requirements.[27]
A court entertaining a motion to vacate a default judgment often considers the reasons presented the defendant's failure to respond (such as "excusable neglect" and the prejudice that might be suffered by the other party).[28] The court must weigh these factors in light of two competing considerations: the general preference for cases to be decided "on the merits", and the important need for "finality in litigation."[29]"
Source of Post
http://en.wikipedia.org/wiki/Default_judgment
http://en.wikipedia.org/wiki/Default_judgment
Subscribe to:
Posts (Atom)