Preston has filed his response to
@FROG 's Motion to Dismiss.
@AnOminous , go crazy with telling us how bad it looks.
The response is very badly written in my non-expert opinion and put together in the sort of idiotic way which would suggest heavy involvement by the client. They kick off by talking about
the trademark issues and almost re-shaping the original complaint. It complicates what would otherwise be a very simple argument about defamation.
The jurisdictional arguments were rather unconvincing to me. Its far from clear that "the brunt of the harm" to Preston would be felt in Texas. They also seem to
avoid entirely the issue of Lamont (in Florida) being somehow harmed in Texas. The claim that EVS specifically aimed his defamation at Texas is nonsense. They
made a half-ass argument that Texas is the proper place for the case because of geography. That somehow since its between all the parties in the case, that its
the appropriate place for the case.
In fact, Lamont is treated almost as a non-entity in the response. Everything is all about Preston.
There is also a really sleazy mention of the old Dave Sim thing and an attempt to tie that to EVS. though a wikipedia article. Its done in a footnote which makes
it even worse. Its also on the edge of a slander against Sim. Worse yet, the attorney doesn't even spell Dave Sim's name correctly.
They also claim (for no particular reason related to EVS) that Dean has implicitly accepted the personal jurisdiction of the Texas Court.
They claim that EVS has made a false statement of fact, but admit in the same breath that he provided images from their work to support his opinion.
I think the brief also mis-states and mis-interpretes
revell v. lidov. The whole thing about how EVS "picked a fight in Texas" running through the response
is a fundemental misunderstanding of revell v. lidov. To quote from the opinion of the appeals court in that case:
Our ultimate inquiry is rooted in the limits imposed on states by the Due Process Clause of the Fourteenth Amendment. It is fairness judged by the reasonableness of Texas exercising its power over residents of Massachusetts and New York. This inquiry into fairness captures the reasonableness of hauling a defendant from his home state before the court of a sister state; in the main a pragmatic account of reasonable expectations-if you are going to pick a fight in Texas, it is reasonable to expect that it be settled there. It is not fairness calibrated by the likelihood of success on the merits or relative fault. Rather, we look to the geographic focus of the article, not the bite of the defamation, the blackness of the calumny, or who provoked the fight.
Also from Kromtech of USA, LLC v. Cox (2014) which was a fifth circuit case, you have this (based on Revell)
The only connection that this controversy has to Louisiana is that Plaintiff resides and allegedly suffered harm here. The Fifth Circuit explicitly stated in Revell that such contacts are not sufficient to support the exercise of jurisdiction
In my opinion, the response doesn't make a good argument on Texas jurisdiction. Its too close to arguments that were explicitly rejected in Revell. Just one person living and having supposedly suffered harm in Texas is not enough.
