Poor Jimmy boy has been having a very bad week. It seems that some person has filed a motion in federal court seeking to have McGibney’s federal LOLsuit dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
In fact, this unknown person has filed four separate motions seeking various court orders against McGibney and his idiot LOL-lawyer Jay Leiderman for filing a bogus lawsuit.
For those that have not been paying attention, James McGibney (who we don’t like) has filed a second LOLsuit in San Jose, CA, against EVERYONE who has ever had anything negative to say about McGibney or who has ever disagreed with McGibney in a federal court lawsuit styled James McGibney vs The Internets – San Jose. In that LOLsuit filed in the United State District Court for the Northern District of California – San Jose Division, McGibney is represented by an attorney from Ventura, CA, named Jason (Jay) Leiderman (http://www.jayleiderman.com). You can see a copy of it here: Amended Complaint — McGibney v The Internets
FUN FACT: An LOLsuit is a portmanteau from taking “LOL” (Laugh Out Loud) and combining it with “lawsuit.” Thus, an LOLsuit is a joke lawsuit, or a lawsuit that is a joke. Note that it is a very real lawsuit filed in a real court. But the premise behind the lawsuit, or the legal reasoning expressed therein, is a total joke (i.e. makes one LOL when reading it). It was first used by a friend of the BV Files who goes by the twitter handle @rchPr1357 (https://twitter.com/rchPr1357).
So for today’s topic we will be talking about James McGibney (who we don’t like), why it totally sucks to be him, and the various goings on in the federal LOLsuit. Please just keep in mind that this legal “advice” is completely marginal, at best, and is only worth what you paid for it. For all you know, the person behind this post could be a drunken chicken pecking away randomly on someone’s unattended laptop! Nothing substitutes for the advice of a lawyer YOU paid for.
A motion to dismiss for failure to state a claim upon which relief can be granted tests the formal sufficiency of the plaintiff’s statement of its claim for relief in its complaint. The motion cannot be used to resolve factual issues or the merits of the case. Such a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is appropriate only if the plaintiff has not provided fair notice of its claims and factual allegations that – when accepted as true – are plausible and rise above mere speculation. Such motions are usually viewed with disfavor.
A motion to dismiss for failure to state a claim admits the facts alleged in the complaint but challenges the plaintiff’s right to any relief based on those facts.
For those of you new to BV Files, here is a guide to help you understand the players, who we don’t like, and why:
- ViaView, Inc. is a company incorporated in Delaware that is owned by seven guys involved in the construction industry in Las Vegas, Nevada.
- Cheaterville.com is a revenge porn site that is run by ViaView. On Cheaterville people can post intimate photos and personal details about their ex-. If you find yourself posted on Cheaterville, you will be forced to pay them $199 (or more!) if you want to ransom back your photos and get the post removed.
- Bullyville.com is a hate speech / bullying website that is run by ViaView. While on the surface the website looks innocently enough, if you just barely scratch the surface by looking in its Articles section you will find some of the most vile and ugly hate speech one could ever imagine.
- James Alex McGibney. He is born in Oct. 31, 1973, from the town of Monroe, NY, who lives in San Jose, CA, and is married to Christina Orduna McGibney (born in June 12, 1981 in the SF-Bay area), with whom he has three small boys with. He is a liar, a thief, and a criminal – seriously. He has falsely claimed to having an Executive Education from Harvard Business School. He does have a FAKE college degree from Chadwick University, a well known diploma mill since shut down by the Govt., and has filed for Ch. 7 bankruptcy at least twice in recent years.
The owners of ViaView consist of the following individuals:
- Dave Suder – West Coast President/CEO of KHS&S Contracting, who is also on the Board of Regents for Servite Catholic High School in Anaheim, CA. His son David Stone Suder is currently on trial in Orange County, CA for multiple counts of child rape involving VERY YOUNG CHILDREN!
- Mark Caspers – owner of Las Vegas based Caspers Construction Company, LLC.
- Michael T. Carr – a man who calls himself “The Profit Prophet” (bet he didn’t see this coming?) and who is currently in hiding from his wife’s divorce lawyer.
- Wayne P. (Pat) Hibbs – President/CEO of Caspers Construction Company, LLC.
- Nikolas (Nick) Mamula – owner of a Las Vegas pre-fabricated stone products & tile company called T. Nicholas Co.
- Scott Corey Ryan – a lawyer licensed to practice law in Arizona, Illinois, and Nevada who is employed by Caspers Construction Company, LLC.
- James McGibney – serial resume fraudster & deadbeat with TWO Chapter 7 bankruptcies under his belt.
In the case at hand, revenge porn / blackmail company ViaView and its CEO / part owner James McGibney sued a bunch of random people for (1) Tortious Interference with Contractual Relations; (2) Tortious Interference with Prospective Economic Advantage; (3) Intentional Infliction of Emotional Distress; (4) Defamation; (5) Public Disclosure / Invasion Of Privacy in US Federal Court, the Northern District of California, San Jose Division.
As stated by one of the defendants to this case, “The case arises from an attempt by plaintiff ViaView and its employee / CEO James McGibney to silence free speech and online criticism of plaintiff’s company (which is a revenge porn website).” In our opinion, truer words have never been spoken before.
So as a part of the initial round of filings, this defendant seeks to have the case dismissed because the complaint does not provide fair notice of the claim and does not state factual allegations showing that the right to relief is plausible, and that the complaint does not provide the defendant with fair notice of plaintiffs’ claim.
The reasons why dismissal for these reasons seems appropriate is because, even if the allegations contained in plaintiffs’ complaint are true, so what?
Counts One & Two of the complaint (Tortious Interference with Contractual Relations and (Tortious Interference with Prospective Economic Advantage) seek to punish these defendants for basically organizing or participating in a boycott of plaintiffs’ revenge porn and blackmail business by contacting advertisers on plaintiffs’ websites and celebrity sponsors.
Pro Tip: Keep in mind that we are not saying that ANY of the allegations in plaintiffs’ LOLsuit are true (for the record, we don’t know or care). As stated above, for purposes of deciding this motion, the court will accept the allegations as true and then see if they state a viable cause of action.
The U.S. Supreme Court upheld the right to boycott in NAACP v. Claiborne Hardware Co. et al., 458 U.S. 886 (1982). The court held that the States have broad power to regulate general economic activities, but cannot prohibit peaceful political activity and organizing. This includes boycotts, which are protected under the First and Fourteenth Amendments in regards to freedom of speech and association. Also, within the right to freely associate is the right to demonstrate and align one’s self with the ideals of the association or business — or not.
The Supreme Court has held that individuals are not responsible for business losses due a non-violent boycott — even if a business fails. The First Amendment freedoms in a boycott trump the business owner’s success. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), Chief Justice Warren Burger stated:
The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent’s conduct by their activities; this is not fundamentally different from the function of a newspaper. Petitioners were engaged openly and vigorously in making the public aware of respondent’s real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.
In other words, even if the goal of the boycott is coercive action against a business entity, the boycott is protected under the First and Fourteenth Amendments as long as it remains non-violent. Thus, defendants have an absolute right to contact and make complaint to plaintiffs advertisers and sponsors.
Now as a part of of plaintiffs’ complaint, ViaView & McGibney include the following conclusory statements: that defendants repeatedly made “fraudulent and frivolous complaints to Plaintiffs’ advertising partners and sponsors.” See LOLsuit at ¶162. Because these statements are merely conclusions, they are not entitled to an assumption of truth and should be disregarded, as per applicable US Supreme Court case law.
With regards to the third and fourth claims, Intentional Infliction of Emotional Distress (against Mr. McGibney) and plaintiff’s fourth claim, Defamation (against Mr. McGibney), McGibney is a Public Figure.
How hateful can comment about a public figure be without losing constitutional protection? Because of the recent US Supreme Court decision involving the Westboro Baptist Church in Snyder v. Phelps, 131 S.Ct. 1207 (2011), there may now be no visible limit.
If we can go to the funeral of a US military service member with bull horns, signs and start picketing and hollering at the family members “Fag Troops,” “God Hates Fags,” “Fags Doom Nations,” “America is Doomed,” “Pope in Hell,” and “Priests Rape Boys”, people can certainly say that “ViaView is a revenge porn company” and “James McGibney abuses young women and little girls by posting revenge porn and charging them money to remove posts from his revenge porn website Cheaterville” and “Cheaterville is crowd-sourced blackmail” and that “James McGibney is a piece of human garbage” (which is totally true – seriously!).
As stated by the Court:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and-as it did here-inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course-to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.
As one commentator on the Bullyville website said:
Yes, even this statement here (assuming it was written by one of the LOLsuit defendants and not McGibney himself) is Protected Speech under the U.S. Constitution. In fact, as we are sure has already been explained to McStupid and his idiot lawyer, this does not even constitute a True Threat under the law and, thus, is not actionable whatsoever.
As one of the defendants argued to the federal court: It is impossible to conclude that a court constrained by Snyder’s precepts could find that Retzlaff’s alleged speech is anything other than constitutionally protected comment on McGibney’s controversial websites.
After all, if Nazis can march through downtown Skokie, IL (a town filled with recent survivors of the Nazi death camps in 1978), then people can certainly get away with saying the things McGibney claims were said about him.
And now we get to McStupid’s fifth and final claim: Public Disclosure of Private Facts / Invasion of Privacy in which McStupid complained about people posting his wife’s name on the internet (her name is Christina, by the way), as well as posting his home address (which is or was on 5608 E. Quiet Cloud Ct. in Las Vegas).
Seriously. This is what he complained about. lolololololololololololololololol
The man who runs a REVENGE PORN / BLACKMAIL website that posts many thousands of intimate photographs of young girls and their personal information cries like the bitch that he is because someone said the name of his wife, Christina, and posted his home address on the interwebs.
What a cry baby little punk James Alex McGibney is.
We guess his attorney forgot that, in California, the elements of a publication of private facts claim are: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to the reasonable person; and (4) which is not of legitimate public concern. California is notable for also requiring a plaintiff to show that the defendant published private facts “with reckless disregard for the fact that reasonable men would find the invasion highly offensive.” Briscoe v. Reader’s Digest Ass’n, 4 Cal. 3d 529 (1971), overruled on other grounds by Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004). What this means is that a plaintiff must show more than that you were simply wrong in believing publication of the facts in question was not offensive; the plaintiff must show that you entertained serious doubts about its offensiveness and decided to publish the facts in question anyway.
Oh, and the information actually has to be PRIVATE and not available elsewhere. Yeah, that’s an important element, too.
As pointed out to the court by the defendant, “the name of plaintiff’s wife, Christina, is easily found in public records (specifically, Clark County, NV marriage license records available online), and the plaintiff’s home address is listed in online SEC filings for ViaView, Inc., as well as with the Nevada Secretary of State’s Office online business filings for ViaView. Thus, these are clearly not private facts.”
If you wish to read the motion to dismiss in its entirety, just click here ====> mtn to dismiss – failure to state a claim – filed 8-7-2014 – Copy
You should check it out. Its pretty damn funny and we bet Judge Beth Freeman will get a kick out of reading it!
Oh, and for those that are in need of some serious lulz, you can read here below McGibney’s sworn Declaration that he filed in opposition to the anti-SLAPP motion filed by BV Files honorary Admin and full-time Hero to the People, Lane Lipton. We are in the process of doing a separate article on this, but we wanted to share this with you guys ASAP.
If you wish to read McGibney’s response and declaration in its entirety you may do so by clicking here ====> McGibney anti-SLAPP response & declaration
Hey McGibney & Company – how goes it with your trying to get someone to enforce your stupid restraining order that nobody gives two shits about??
Oh, and today we reached an amazing milestone that we never, ever thought we could possibly reach: OVER 1.3 MILLION VIEWS since we first started this website in mid-February 2014! Seriously.
We here at the BV Files thank you all so very, very much for taking time out of your day to come here and read the Truth. Without you, our teeming MILLIONS of readers, listeners, and supporters, we would have no reason to exist. We are averaging around 7 – 8,000 unique page views each day, and we enjoy reading all the emails that we get form y’all (yes, even the death threats). Keep in mind that we do respond to every message we get (yes, even the death threats), but because this is not our job, it might take a couple of days to get to your message. But we do enjoy and appreciate them all!!
We are especially thankful to those of you who have linked us on your website or otherwise redirected traffic here. SERIOUSLY – THANK YOU VERY MUCH!!!
Please enjoy this LIVE VIDEO feed from the McGibney command bunker