Good day, eh. Well for those of you keeping an eye on such things, yesterday, Monday August 11, 2014, Houston, TX attorney Jeffrey Dorrell filed his brief with the Fort Worth, TX 2nd Court of Appeals in the LOLsuit involving James McGibney vs The Internets – the Texas case.
On February 19, 2014, plaintiffs James McGibney (who we don’t like) and his revenge porn / blackmail company ViaView (who we also don’t like) sued Thomas, Neal and nine other defendants for claims of defamation, “blackmail,” “extortion,” harassment, stalking, intentional infliction of emotional distress, tortious interference with “business relations,” business disparagement, and “gross negligence per se in violation of TEX. PEN. CODE §§ 22.07, 42.07, and 42.072” arising from Internet postings plaintiffs claimed were “unlawful verbal acts.” If you wish to read the complaint McGibney filed, just click here ====> McGibney vs The Internets – Texas Lawsuit
But before we get started here, we are wondering if anyone else noted all the nerd rage being expressed by James McGibney’s twitter supporters (and likely his own sock accounts) the past three or so days. Is he mad about something?
Too bad for little Jimmy boy that the die has already been cast and that no matter how much he rages on twitter that it has ZERO effect on the outcome of the Texas LOLsuit, or the California LOLsuit. More importantly, it has ZERO effect on whether or not your advertisers & investors will be coming back to you. lol Mc-Stupid! El oh el.
Here are some quick highlights about the Texas Anti-SLAPP statute which is codified at Texas Civil Practice & Remedies Code, Chapter 27:
- The statue allows a judge to dismiss frivolous lawsuits filed against one who speaks out about a “matter of public concern” within the first 60 days. “Matter of public concern” is defined expansively in the statute. And specifically, as pertains to McGibney, “matter of public concern” includes “an issue related to a public figure.” See Section 27.001(7)(D) of the Act.
- The Anti-SLAPP motion is supported by affidavits explaining to the court that the lawsuit is based on, relates to, or is in response to one’s exercise of his right to free speech, right to petition or right of association.
- The burden of proof is initially on the party who files the Anti-SLAPP motion to establish (by a preponderance of the evidence) that the lawsuit was filed in response to the exercise of his First Amendment rights. Then the burden shifts to the plaintiff to establish (by clear and specific evidence) a prima facie case for each essential element of the claim.
- The statute creates a stay of discovery in a lawsuit while an Anti-SLAPP motion is pending and/or appealed. The court has discretion to order discovery pertaining to the motion if it feels it is necessary.
- The statute provides for mandatory fee shifting when a party wins an Anti-SLAPP motion so that the person or entity wrongfully filing a lawsuit must pay the defense costs. There is a discretionary fee award if the Court finds that the Anti-SLAPP motion was frivolous or brought solely for the purpose of delaying the proceedings.
- The statute provides an immediate right to an expedited appeal if the Anti-SLAPP motion is denied.
Thus, a malicious or frivolous lawsuit that chills speech is the SLAPP; the statute employed against it is the anti-SLAPP statute, and the motion under the statute is an anti-SLAPP motion. Got it?
So here is a run down on what has been happening in the Texas case.
On March 18, 2014, Rauhauser specially appeared, generally denied, and filed a counterclaim. On March 20, 2014, Rauhauser then filed a motion to dismiss under the Citizens Participation Act (the anti-SLAPP statute in Texas). Plaintiffs nonsuited their claims without prejudice. On May 16, 2014, Rauhauser amended his motion. On May 19, 2014, Rauhauser supplemented his motion with evidence of attorney’s fees. May 21, 2014, the trial court held an oral hearing on Rauhauser’s amended motion. The trial court never ruled on Rauhauser’s motion. The motion was denied by operation of law on June 20, 2014. See TEX. CIV. PRAC. & REM. CODE § 27.008(a). Notice of this interlocutory appeal was filed within 20 days of the denial on July 10, 2014, in accordance with TEX. R. APP. P. 26.1(b).
As noted above, the Citizens Participation Act was enacted “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002. Courts are instructed to “construe [the statute] liberally to effectuate its purpose and intent fully.” Id. § 27.011(b).
In the appellate brief filed by attorney Dorrell, he presents five issues for the court’s consideration:
Issue 1: Did Rauhauser show by a preponderance of the evidence that plaintiff’s suit is “based on, relates to, or is in response to exercise of the right of free speech?”
Issue 2: How hateful can comment on matters of pubic concern be without losing constitutional protection?
Issue 3: Did plaintiffs marshal “clear and specific evidence of a prima facie case for each element of each claim in question?”
Issue 4: Can a court grant a motion to dismiss and order sanctions under the Citizens Participation Act after the plaintiff nonsuits his claims?
Issue 5: Can this Court reverse and render judgment awarding Rauhauser the attorney’s fees and sanctions of which the evidence was uncontested?
Because this case is entitled to expedited review, the court of appeals will likely reach a decision in October.
As stated above, James McGibney is a disgusting little man who runs a revenge porn / blackmail website called Cheaterville.com. He also runs the hate speech / bullying website Bullyville.com.
Some important things to remember are that McGibney uses his websites to punish behavior he finds morally repugnant and to prosecute vendettas against his personal enemies (i.e. all of us). Visitors to McGibney’s http://www.bullyville.com will find the page emblazoned with what could be fairly described as McGibney’s business philosophy: “Sometimes you have to be a bully to beat a bully.” One journalist has compared what he called McGibney’s “antibullying crusading” to “old-fashioned vigilantism.” Yet another called his Cheaterville website “crowd sourced blackmail.”
The appellate’s brief goes on to say that: In their pleadings, plaintiffs give just four actual statements vaguely alleged to have been published by “Retzlaff and the other Defendants,” apparently on a blog known as “BV Files.” [Which is us!]
Plaintiffs do not describe the context or circumstances of the statements or explain how ten defendants could be equally liable for a statement published only once. Plaintiffs also do not explain how they attribute pseudonymous blog postings to Retzlaff, Rauhauser, or other defendants, or what they mean by the phrase “unlawful verbal acts.” The four statements sued upon are:
(i) “I am simply amazed that this this BullyVille guy, James McGibney, is still alive. If I was listed on his website, I would put a bullet in his head. It’s as simple as that. His home address has been posted online. And he makes scheduled public appearances. One of these days James is going to post the name of the wrong guy and it will cost him, and his family, their lives.”
(ii) “I would like to bury a hatchet right in [McGibney’s] fucking damn face.”
(iii) “It will be really funny seeing someone post pics of your wife Christina when she is shopping at Smith’s with ur two kids.”
(iv) “I have Twitter and a little bit of me dies everytime (sic) I log in. I want to kill most people. Starting with Bullyville. F_cking damn cesspool.”
Okay. Even if true – so what?
Although McGibney melodramatically characterize these statements as “terroristic threats” of “murder and actual killing”, the statements are, in reality, rhetorical hyperbole expressing the speaker’s opinion that McGibney’s bullying tactics are reprehensible.
In their response to the anti-SLAPP motion, McGibney & ViaView argued that these statements are “simply not protected speech.” Plaintiffs are not the first SLAPP suit respondents to make this argument. However, the flawed logic of plaintiffs’ argument has already been considered and rejected by many courts across the country.
The Texas Supreme Court has recognized a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on” public figures. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex. 2004) (internal citation omitted).
Speech does not lose its protected character simply because it may embarrass others or coerce them into action. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982). A statement may be false, abusive, unpleasant, or objectionable without being defamatory in light of the surrounding circumstances. Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854 (Tex. App.—Dallas 2003, no pet.)[emphasis added].
“Hey BV Files, what kinds of bullying tactics does McGibney use and display on a daily basis for the past three years“, you ask? Well take a look:
So with public displays like this, is it any wonder that there is a great deal of public comment about this man’s tactics?
HEY JAMES MCGIBNEY! WHEN WE SENT EMAILS TO ALL OF YOUR ADVERTISERS AND CELEBRITY SPONSORS DO YOU REALLY THINK THAT WE HAD TO MAKE SHIT UP ABOUT YOU OR JUST SEND THEM COPIES OF THIS STUFF HERE AND THE STUFF ON CHEATERVILLE?
We got screen shots of ALL of your twitter posts, McStupid. The Good, the Bad, the Ugly and (unfortunately for you) the Truth. What do you think their reaction was upon viewing the garbage that you posted (until Twitter banned your ass)? Do you think Smokey bear was impressed at all the websites you buy up in the names of your enemies? Yeah, I don’t think so.
Here is the affidavit that McGibney made in the Texas LOLsuit in which he tries to deny that he had anything to do with the harassment & stalking of attorney Dorrell. Like we believe you, McStupid, because you have never done anything like that before, have you? Oh, wait…you have. JAMES MCGIBNEY IS A PERJURIOUS LYING SACK OF SHIT – 100% VERIFIED!!
The rest of the brief goes into great detail about how McGibney failed to provide any evidence to support his claims, as well as failed to provide any evidence of damages – all necessary in order for him to defeat the anti-SLAPP motion. You can read it all here =========> Appellate’s Brief filed 8-11-2014
McGibney & ViaView have until September 1, 2014, to file their response with the court of appeals in Texas.
Hey James McGibney, while your sitting in bed tonight and contemplating what has happened, we hope you will remember that suicide is not a solution.
We said it before, and we’ll say it again, because it’s just so god damn funny that it bears repeating again and again, and then some more:
How shitty must your company and business plan be if all it took to destroy it (and permanently ruin your reputation) was supposedly one angry convicted felon (and alleged member of a murderous prison gang) saying mean things about you on Twitter? Seriously. If you believe everything that McGibney is saying (and who wouldn’t because, after all, McGibney has always been so honest in the past), but if you believe everything that McGibney said, all it took was one man and a handful of emails & tweets to ruin forever McGibney’s ViaView company. Of course, this is not true. But wouldn’t it be really funny if it was?
You morons need to remember that it isn’t Twitter Court that counts, but the courtrooms of the 67th District Court of Tarrant County, TX in Ft. Worth and the US District Court in San Jose, CA that counts!!! McGibney has been spending months trying to trash a man who simply does not care with all kinds of wild and unprovable allegations that he supposedly said mean things on the internets – like someone being a troll or a dick online is some big news event.
Someone being a troll on the internet is about as news worthy as a cat stuck in a tree. Seriously.
No, James McGibney, no one is listening to you anymore. You are obviously raging at a man who simply does not care and whose life you cannot affect, and that fact just eats you up on the inside. lol
Hey James McGibney & Company: Was it worth losing $20,000 a month for the last year over this nonsense? Was it worth losing ALL of your advertisers and celebrity sponsors over? Was it worth losing your public reputation and your investors over? All just so you could see who has the biggest dick and is the boss of Twitter and the interwebs.
But, hey – sometimes you got to be a bully to beat a bully, right?
rage harder, twitter nerd. rage harder.