Preston Poulter et al v. Ali "Dean" Assaf et al (2021)

[Spectre_06]

Well, let's how The Court addresses this then.

I would expect that if the court decides it lacks personal jurisdiction for Ethan, it will dismiss it for all three since Preston alleges the facts for establishing it are the same across the board. Interestingly, they still try to downplay that John is in Florida and they don't establish how his damages would put him in the court.

 

[AnOminous]

Preston has filed his response to Dean's motion to dismiss. It's pretty much a copy-paste of his response to Ethan's motion to dismiss, under the claim they're substantially the same even though they really aren't. He did bring up that Dean waived personal jurisdiction in his reply, but the court has the ability to determine on its own that it lacks jurisdiction. In fact, one of the cases they cite (Revell v. Lidov) was affirmed on appeal that the lower court lacked personal jurisdiction.

One notable fact is that in between Assaf filing his answer (August 4) and obtaining counsel and filing a motion to dismiss (August 18), only two weeks had passed, and nothing substantive had occurred in the case. One could interpret the pro se answer as having raised the personal jurisdiction issue inartfully by characterizing it as an objection to venue. Regardless, though, there's no indication of any intent to waive the issue.

There is no prejudice to the plaintiff here, nor any indication Assaf intended to do anything but avoid defaulting by filing a pro se answer, and once counsel was obtained, the defense promptly raised the issue of personal jurisdiction in its first subsequent filing before the plaintiff did anything whatsoever.

And indeed, as you note, the court could have raised the issue of personal jurisdiction or lack thereof sua sponte, so it would be absurd to claim it couldn't address a motion on the issue by a party.

Counsel for plaintiff is treating the issue as a game of gotcha, but these aren't the bad old days where you could accidentally waive jurisdiction if your lawyer failed to use magic words like calling it a "special appearance" when appearing to contest personal jurisdiction, or merely by mentioning some issue about the substance of the case.

 

[Spectre_06]

One notable fact is that in between Assaf filing his answer (August 4) and obtaining counsel and filing a motion to dismiss (August 18), only two weeks had passed, and nothing substantive had occurred in the case. One could interpret the pro se answer as having raised the personal jurisdiction issue inartfully by characterizing it as an objection to venue. Regardless, though, there's no indication of any intent to waive the issue.

There is no prejudice to the plaintiff here, nor any indication Assaf intended to do anything but avoid defaulting by filing a pro se answer, and once counsel was obtained, the defense promptly raised the issue of personal jurisdiction in its first subsequent filing before the plaintiff did anything whatsoever.

And indeed, as you note, the court could have raised the issue of personal jurisdiction or lack thereof sua sponte, so it would be absurd to claim it couldn't address a motion on the issue by a party.

Counsel for plaintiff is treating the issue as a game of gotcha, but these aren't the bad old days where you could accidentally waive jurisdiction if your lawyer failed to use magic words like calling it a "special appearance" when appearing to contest personal jurisdiction, or merely by mentioning some issue about the substance of the case.

I'd note Dean hasn't retained counsel, despite my telling him he should. This is a federal lawsuit, not small claims. A loss here has lasting impact on you financially, assuming they get what they ask for. That being said, as I expected they do try to claim that the fact he didn't raise it in his answer means he waives it, but a case they cite specifically (Kromtech USA) had the case against one defendant dismissed for lack of jurisdiction sua sponte without the defendant having even been served.

 

[I'm not a Robot]

I'd note Dean hasn't retained counsel, despite my telling him he should.

but he reached his GoFundMe goal of $1,000 to get a lawyer over a month ago... I guess that conversation didn't go so well. Probably just enough to get him in the door and then ask for $10,000.

 

[Spectre_06]

but he reached his GoFundMe goal of $1,000 to get a lawyer over a month ago... I guess that conversation didn't go so well. Probably just enough to get him in the door and then ask for $10,000.

I have no knowledge on this particular subject, but yes he'd need a few thousand as a retainer to begin with.

 

[AnOminous]

I'd note Dean hasn't retained counsel, despite my telling him he should. This is a federal lawsuit, not small claims. A loss here has lasting impact on you financially, assuming they get what they ask for. That being said, as I expected they do try to claim that the fact he didn't raise it in his answer means he waives it, but a case they cite specifically (Kromtech USA) had the case against one defendant dismissed for lack of jurisdiction sua sponte without the defendant having even been served.

Oh, I thought he had. Well, in any event, I doubt failing to raise it indicated he never intended to raise it, especially when he did raise it nearly immediately in a motion to dismiss.

 

[mindlessobserver]

I have no knowledge on this particular subject, but yes he'd need a few thousand as a retainer to begin with.

A child custody case in county where you are just arguing over the details can set you back 10,000 dollars. A federal lawsuit? 1,000 dollars will get you the first 30 minutes of time.

Now consider the Vic Mignogna case which never even got to preliminary dismissal hearing in county Court. A quarter million dollars.

 

[5t3n0g0ph3r]

Rekieta did a dedicated stream on this case and caught up:

He also reviewed a recent response by @FROG's lawyers that had not been filed on PACER, yet.
I'm sure @Spectre_06 or @I'm not a Robot will post the document here soon.

 

[Strix454]

Preston has filed his response to Dean's motion to dismiss. It's pretty much a copy-paste of his response to Ethan's motion to dismiss, under the claim they're substantially the same even though they really aren't. He did bring up that Dean waived personal jurisdiction in his reply, but the court has the ability to determine on its own that it lacks jurisdiction. In fact, one of the cases they cite (Revell v. Lidov) was affirmed on appeal that the lower court lacked personal jurisdiction.

There is some unique content in the response. In particular they go out of the way to make a footnote attack on Vikki and accuse her of leaving her friends "holding the bag" and how she should be voluntarily appearing in spite of them not being able to properly do a process service. Its text that really sounds like Preston putting in his value add. They also mention the spectre report on youtube by name.

And while they provide quotes for how Dean allegedly libeled Lamont, they provide none at all for how Preston was defamed.

Also unique to this response is their response to the mention of Meyer vs. Maid. The most interesting thing is this idiotic footnote:

Perhaps ironically, the alignment of the parties there was the opposite of the alignment here. The plaintiff, Richard C. Meyer is allied with Assaf, Kundert, and Van Sciver, while the defendant, Mark Waid, is allied with Lamont and Poulter.

That is just weird and factually incorrect.

They claim Meyer's case doesn't count because he didn't make the same jurisditional argument that they do. Its really kind of a lazy argument.

They decline to respond to any of the exhibits presented in Dean's response based on the claim that the defendant is limited at the time of the response to responding to the text of their complaint.

as well:

1) They claim without supporting argument that Dean caused the "cancellation" of the Demonatrix campaign. Its based on the logic of "we say so".

2) They respond to the vague nature of their claims that Dean defamed them at some point over several months as not their problem. Dean should go figure out when he defamed them himself.

3) They use similar logic to prove that Preston and Lamont lost income & sales because they say so. That they were making $25K per campaign even though there is no factual proof of that.

4) Dean's claim that preston's life is not endangered by attending conventions is called a factual dispute which is only meaningful in the calculation of damages.

5) They attempt to make a broad argument that everything is about the trademark fight with EVS. That Dean and Vikki are his minions (or allies).

Its mostly a re-statement of the arguments in response to EVS as per jurisdiction. Its again not very impressive (IMO) as a legal document or an argument. The willingness of the attorney to allow all sorts of stupid comicsgate drama into his documents is just embarassing.

 

[Captain Manning]

And while they provide quotes for how Dean allegedly libeled Lamont, they provide none at all for how Preston was defamed.

Personally, I'd like to defame Peggy by pointing out that he is a emasculated FAGGOT who takes it up the ass, but since truth is an absolute defense against defamation, and there is indisputable video proof in support of my assertion, I guess I'm shit out of luck on this one.

Also unique to this response is their response to the mention of Meyer vs. Maid. The most interesting thing is this idiotic footnote:

Perhaps ironically, the alignment of the parties there was the opposite of the alignment here. The plaintiff, Richard C. Meyer is allied with Assaf, Kundert, and Van Sciver, while the defendant, Mark Waid, is allied with Lamont and Poulter.

That is just weird and factually incorrect.

To wit, Dean and Vikki had opined, on several occasions, that they felt Meyer didn't have much of a case. Their position there was driven by the fact that while Waid engaged in fuckery, Meyer ultimately got his book published through alternative means.

I could probably find at least three instances of them saying that on their show, if I were so inclined. It should be born in mind that D&V aren't CG, and are actually quite critical of it. I mean, their whole show can be best summed up as "here's the dumb stupid shit that happened in Comicsgate this week."

EVS, sure. He was Team Meyer. But so what?

 

[Strix454]

To wit, Dean and Vikki had opined, on several occasions, that they felt Meyer didn't have much of a case. Their position there was driven by the fact that while Waid engaged in fuckery, Meyer ultimately got his book published through alternative means.

EVS, sure. He was Team Meyer. But so what?

For my part, I can't remember Preston ever taking Waid's side in the dispute. Preston's involvement in CG started with him being FOR Meyer and wanting to be a bigger part of CG back at the end of 2018.

 

[5t3n0g0ph3r]

For my part, I can't remember Preston ever taking Waid's side in the dispute. Preston's involvement in CG started with him being FOR Meyer and wanting to be a bigger part of CG back at the end of 2018.

That's what I thought.
@PocketJacks never aligned himself with Waid as far I can tell.
Lamont? Who cares.

 

[Captain Manning]

For my part, I can't remember Preston ever taking Waid's side in the dispute. Preston's involvement in CG started with him being FOR Meyer and wanting to be a bigger part of CG back at the end of 2018.

That is a weird too. Yes.

He might have switched once he became a CG gadfly, but he's a nobody, so of course nobody gave a shit.

Lamont? Who cares.

Perhaps the FBI will, one day.

I have a suspicion that Lamont has... ahem... interesting things on his electronic devices that are worse than the Demonatrix. If you catch my drift.

I'm proudly part of the tinfoil hat brigade that thinks trying to get people to accept lolicon is part of a larger plan to push those boundaries even further.

But that's just me speculating, Peggy. No need to file a lolsuit.

 

[5t3n0g0ph3r]

So, CourtListener is not up to date with the filings available on this case.
I looked on the site and I found this regarding getting documents uploaded on the site:

The exception to this is that if your documents are on PACER, it's possible for you to use our RECAP Project to get us copies of the documents. Do to so, simply install either our Firefox or Chrome extension, and then purchase the documents from PACER.

RECAP:

RECAP is an extension for Firefox or Chrome that makes PACER cheaper and easier to use. If you install the RECAP extension, you will donate the documents you purchase on PACER to our public collection, which we call the RECAP Archive. In addition, if you have the extension installed and try to download an item from PACER that we already have, you will instead get it for free from our archive.

If you use PACER, we recommend you install RECAP — it will save you money

If a brave soul could make sure the site is up to date with the case, I would appreciate it.

 

[Strix454]

Its possible to see which documents are NOT on CourtListener yet via pacemonitor which can be somewhat useful

Getting documents through pacemonitor however costs $,

 

[Spectre_06]

@FROG 's response brief is up. It's a pretty good read, and straight up calls the plaintiffs liars in their citations. No idea why it was late by a day.

 

[Strix454]

This one has some good stuff:

1) They call them out on how little of their complaint addressed Lamont.

The two allegedly defamatory statements Case 3:21-cv-01176-K-BN Document 30 Filed 09/28/21 Page 5 of 14 PageID 340 __________________________________________________________________________________________ DEFENDANT ETHAN VAN SCIVER’S REPLY BRIEF PAGE 2 spoken by Van Sciver do not mention Lamont. See D. Br. at 10, n.4.1 Plaintiffs’ opposition brief disputes none of this and no rationale is offered to rescue Lamont’s causes of action against Van Sciver. Therefore, Lamont’s case against Van Sciver must be dismissed.

2) They call them out on misrepresenting the facts of Calder v. Jones

They characterize Calder with brazen inaccuracy
....
Here Plaintiff is not quoting Calder. Plaintiff is quoting a lawyer’s unsuccessful argument about Calder in a later case

3) They call them out on their strange understanding of Revell v. Lidov

But despite its encouraging quote, Revell’s holding is directly contrary to Plaintiffs’ interests here and can be cited as precedent in favor of Defendant Van Sciver

4) Then they call them out on the selective quotations and misleading presentation of quotations

Plaintiffs truncated Van Sciver’s actual statement and replaced it with their lawyer’s words, “associated with.” Plaintiffs thus converted a statement distinguishing Poulter from an “actual, you know, child pornographer, uh pedophile” into one which “associated” Poulter with “an actual child pornographer and pedophile.”

AND

Plaintiffs argue the above somehow implicates Van Sciver. Despite the fact that he showed “a few images,” he nevertheless “clearly intended” false assertions. This misleading, out of context quotation to the record is no substitute for legal argument. Indeed, it is a tacit admission that Plaintiffs have no valid legal argument and have failed to state a claim upon which relief may be granted against Van Sciver.

Brutal.....

5) They go after Preston over how the trademark dispute was presented in the case.

Plaintiff Poulter originally pleaded that he was “owner of [the trademark] Comicsgate” and “promoter of Comicsgate,” that “Ethan Van Sciver claims [the Comicsgate trademark] is no longer of interest to him,” and that Van Sciver “would do whatever he had to do to interfere with Poulter’s comic business.” Complaint, Doc. 6, at ¶¶19, 20. But as Van Sciver presented his side of the story in these briefs, Poulter’s case is falling apart. The Comicsgate trademark was not owned by Poulter (or Lamont). Poulter merely filed an “intent to use” application and has filed a Cancellation Proceeding before the U.S. Patent and Trademark Office attacking the pre-existing registered Comicgate trademark owned by another. See Doc. 28-2, Ex.2 (Cancellation No. 92075375, Ethan Van Sciver, co-defendant).

The brief really took the other side apart and made them look not good. They really took the attorney on the other side to school in terms of the precedents involved. They just don't have a good argument to make on jurisdiction in the case.
They really hit just about all the right points in the response.

 

[5t3n0g0ph3r]

In other news, CourtListener was updated.
Thank you to whoever got that accomplished.
Now we wait for Dean's reply to @PocketJacks & Lamont.

 

[Strix454]

As far as Dean's reply goes......

- One could make the same arguments that @FROG did on jurisdictional matters. The key things to point to are the misunderstaning of Calder v. Jones in the brief and the misrepresentation of the precedent set by Revell v. Lidov. It would be best to distill the response down to the absolute minimum.

- One should look carefully at claiming that nothing has been so far presented that indicates he defamed Preston. Basically the opposite of FROG's argument that (in FROG's case) that Lamont's claims should be dismissed because they have not shown FROG said anything about Lamont. In the paperwork so far presented, there is very little in terms of established fact or direct quotes to suggest that Dean defamed Preston.

- The final important bit in FROG's brief is "Plaintiffs argue the above somehow implicates Van Sciver. Despite the fact that he showed “a few images,” he nevertheless “clearly intended” false assertions."

This is important. The complaint claims clear intentions to make false assertations. But anything presented in the streams to prove those assertations (images, etc) works against the idea that there was ever a clear intention to say something known to be false.

While the other side can make arguments to the effect that all sorts of details should wait for trail to be discussed, ANY details from the original streams that show that there was reasoning behind the accusations rather than a "clear intention" to say something false can be presented in that light. Because Preston opened the window to it by claiming a clear intention to be false.

Of course I have no expertise and this is all nonsense that could not be taken seriously by anyone. I'm going to get my tinfoil hat now and attempt to contact bigfoot through psychic energy.

 

[SargonF00t]

Of course I have no expertise and this is all nonsense that could not be taken seriously by anyone. I'm going to get my tinfoil hat now and attempt to contact bigfoot through psychic energy.

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