Case: 2:09-cv-00219-WOB-CJS Doc #: 192 Filed: 05/17/13 Page: 1 of 22 - Page ID#: 3033

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON SARAH JONES, Plaintiff, v. DIRTY WORLD ENTERTAINMENT RECORDINGS LLC dba THEDIRT.COM, HOOMAN KARAMIAN aka NIK RICHIE aka CORBIN GRIMES, DIRTY WORLD, LLC dba THEDIRTY.COM, and DIRTY WORLD ENTERTAINMENT, LLC dba THEDIRTY.COM, Defendants. SECOND AMENDED PROPOSED JURY INSTRUCTIONS AND VERDICT FORM OF DEFENDANTS DIRTY WORLD, LLC AND NIK LAMAS-RICHIE Case No. 2:09-cv-00219-WOB Judge William O. Bertelsman

COME NOW Defendants Dirty World, LLC and Nik Lamas-Richie, by and through counsel, pursuant to the Courts March 11, 2013 Final Pretrial Conference Order [Doc #178], and requests that the following Amended Jury Instructions and Verdict Form be provided to the jury during the trial of this matter. DIRTY WORLD, LLC AND NIK LAMAS-RICHIE /s/ David S. Gingras ____________ Of Counsel

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Alexander C. Ward, Esquire HUDDLESTON BOLEN LLP 855 Central Avenue, Suite 301 P.O. Box 770 Ashland, KY 41105 606.329.8771 and Alexis B. Mattingly, Esquire HUDDLESTON BOLEN LLP 611 Third Avenue P.O. Box 2185 Huntington, WV 25722-2185 304.529.6181 and David S. Gingras, Esquire (admitted pro hac vice) GINGRAS LAW OFFICE, PLLC 4025 E. Chandler Blvd., #70-A26 Phoenix, AZ 85048 480.668.3623 Counsel for Defendants, Dirty World, LLC and Nik Lamas-Richie

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 1 You are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testifies, or by the character of the testimony given, or by evidence contrary to the testimony. You should carefully examine all the testimony given, the circumstances under which each witness has testified, and whether every matter in evidence tending to show whether a witness is worthy of belief. Consider each witnesss intelligence, motive and state of mind, and demeanor or manner while testifying. Consider the witness's ability to observe the matters as to which the witness has testified, and whether the witness impresses you as having an accurate recollection of these matters. Also, consider any relation each witness may have with either side of the case, the manner in which each witness might be affected by the verdict, and the extent which the testimony of each witness is either supported or contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses, may or may not cause you to discredit such testimony. Two or more persons seeing an event may see or hear it differently. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood. After making your own judgment, you will give the testimony of each witness such weight, if any, that you think it deserves. In short, you may accept or reject the testimony of any witness, in whole or in part. In addition, the weight of the evidence is not necessarily determined

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by the number of witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony of a small number of witnesses as to any fact is more credible than the testimony of a large number of witnesses to the contrary. Federal Jury Practices and Instructions, 5th Edition, Section 105.01.

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 2 During the trial, certain testimony has been presented by way of deposition. The deposition consisted of sworn, recorded answers to questions asked of the witness in advance of the trial by one or more of the attorneys for the parties to the case. Such testimony is entitled to the same consideration and is to be judged as to credibility, and weighed, and otherwise considered by you, insofar as possible, in the same way as if the witness had been present and had testified from the witness stand. Federal Jury Practices and Instructions, 5th Edition, Section 105.02.

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 3 You must decide this case as an action between persons of equal standing and worth in the community, and holding the same or similar stations in life. A business entity is entitled to the same fair trial in your hands as a private individual. All persons, including business entity, stand equal before the law, and are to be dealt with as equals in a court of justice.

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 4 Federal law provides as follows: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. This means that an owner, operator or user of a website cannot be treated as the publisher or speaker of any information provided by another person. 47 U.S.C. 230(c)(1)

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 5 In order to recover for a defamatory statement or invasion of privacy, a public figure must show the statement is (1) facially defamatory, (2) untrue, and (3) that the defamatory statement was made with actual malice. A statement can be facially defamatory and libel if untrue if it would (1) bring the person about whom the statement is made into public hatred, contempt or ridicule; (2) cause the person to be shunned or avoided; or (3) injure the person in their business or occupation. A defamatory statement can be said to have been made with actual malice only if it was made with knowledge that it was false or with reckless disregard of whether it was false or not. That is to say that actual malice entails more than mere negligence. It requires that the publisher of the defamatory falsehood entertained serious doubts as to the truth of the published material. Actual malice must be shown by clear and convincing evidence. Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724 (Ky. 1999).

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 6 In order to recover for a defamatory statement a private figure must show the statement is (1) a defamatory statement; (2) about the plaintiff; (4) that is published; and (5) that causes injury to reputation. To be defamatory the statement must be untrue. A statement can be facially defamatory and libel if untrue if it would (1) bring the person about whom the statement is made into public hatred, contempt or ridicule; (2) cause the person to be shunned or avoided; or (3) injure the person in their business or occupation. Finally, to recover a private plaintiff must show that the libel resulted from negligence on behalf of the publisher, measured by what a reasonably prudent person would or would not have done under the same or similar circumstances. The Plaintiff must prove each element including material falsity and negligence by clear and convincing evidence. Gahafer v. Ford Motor Co., 328 F.3d 859, 861 (6th Cir. Ky. 2003). McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981), cert. denied, 456 U.S. 975, 72 L. Ed. 2d 849, 102 S. Ct. 2239 (1982). Ashby v. Hustler Magazine, Inc., 802 F.2d 856, 858 (6th Cir. Ky. 1986) (internal citations omitted). ______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 7 You have been instructed that in order to recover the Plaintiff must prove that the statements published were materially false. That is to say that substantial truth is a defense to defamation, even if the allegedly defamatory statement was made with or inspired by malice or ill will or is libelous per se. In considering the truth as a defense you are instructed that substantial truth provides a defense to defamation even if what was published is not the precise or exact truth. Rather minor inaccuracies do not amount to falsity as long as the substance, the gist, or the sting of the libelous charge is justified. Put another way, the statement is not considered false unless it would have a different effect on the mind of the reader than the truth would have produced. Ky. Kingdom Amusement Co. v. Belo Ky., Inc., 179 S.W.3d 785 (Ky. 2005). Bell v. Courier-Journal & Louisville Times Co., 402 S.W.2d 84, 87 (Ky. 1966).

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 8 Under the First Amendment, there is no such thing as a false idea. This means that every person in the United States is entitled to express his or her own personal opinions, even if those opinions are offensive. In order to protect the right to freedom of speech, defamatory statements cannot be based on expressions of opinion, even if the opinion is hurtful, mean, or insulting. defamatory statement must be based on a false statement of fact. Expressions of opinion are entitled to strong protection under the First Amendment. Therefore, a statement of opinion cannot support a defamation claim unless the speakers opinion also implies the existence of undisclosed facts which are themselves defamatory. If a speaker expresses an opinion based on facts which are disclosed, then the speakers opinion is protected and cannot support a defamation claim. Yancey v. Hamilton, 786 S.W.2d 854, 857 (Ky. 1990); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974) Restatement (Second) of Torts 566 cmt. d (1977). Rather, a

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 9 Even when a statement appears to contain one or more facts which could be defamatory assuming the facts are proven false, the statement is still entitled to protection under the First Amendment when it is clear that the statement contains hyperbole, exaggeration, or any other type of speech which was clearly not intended to be taken literally as fact. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 10 A statement is not defamatory unless it is of and concerning the Plaintiff individually. This means that a statement which criticizes a large group of people will not support a defamation claim by each individual member of that group. This type of general statement is not of and concerning any one person and therefore is not actionable. So, for example, a statement that All lawyers are shysters would not permit every lawyer in the country to sue for defamation because this statement was not of and concerning any one specific person; it was a general comment regarding a large group. O'Brien v. Williamson Daily News, 735 F.Supp. 218, 223 (E.D.Ky. 1990) (holding affirmed 931 F.2d 893 (6th Cir. 1991); Louisville Times v. Stivers, 252 Ky. 843, 68 S.W.2d 411 (1934); Restatement (Second) of Torts 564A cmt a (1977).

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 11 Plaintiff claims that Defendants conduct was outrageous and beyond the bounds of conduct acceptable in civilized society and constitutes intentional infliction of emotional distress. In order to prevail in this claim, the Plaintiff must prove by a preponderance of the evidence each of the following: First: that the Defendants conduct was intentional or reckless; Second: that the Defendants conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; Third: that there is a causal connection between the Defendants conduct and the Plaintiff's emotional distress: and Fourth: that the Plaintiff's emotional distress is severe. The conduct alleged by the Plaintiff must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. Conduct that the Defendants know that the other person will regard as insulting or will hurt her feelings is not enough to establish intentional infliction of emotional distress. Stringer v. Walmart Stores, Inc., 151 S.W.3d 781 (Ky. 2005); Clark v. United Parcel Service, Inc., 286 Supp.2d 819 (W.D. Ky. 2003).

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 12 The following are instructions on Plaintiff's claim for damages. However, you should not interpret the fact that you are given instructions concerning the issue of Plaintiff's damage claim as indicating that Plaintiff should, or should not, prevail in this case. It is your task to determine whether Defendants are liable. You are being instructed on damages only so that you will have guidance in the event you decide that Defendants are liable and that Plaintiff is entitled to recover money from Defendants. However, any damages you award must have a reasonable basis in the evidence. Damages need not be mathematically exact, but there must be enough evidence for you to make a reasonable estimate of damages without speculation or guess work.

______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 13 Defendants are not liable for any ailments Plaintiff may suffer from that were caused by anything other than any wrongful actions by Defendants. Similarly, any physical or emotional injuries that you find are attributable to a cause other than any wrongful actions by Defendants are not part of this action and should not be considered by you. If you find by that the injuries of which Plaintiff complains were caused by something or someone other than Defendants, then Defendants are not liable for such injuries. ______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 14 Punitive damages means damages, other than compensatory and nominal damages, awarded against a person to punish and to discourage him and others from similar conduct in the future. You may award Plaintiff punitive damages only if she has proven, by clear and convincing evidence, that Defendants acted toward Plaintiff with oppression, fraud or malice. Oppression means conduct which is specifically intended by the Defendants to subject the Plaintiff to cruel and unjust hardship. Fraud means an intentional misrepresentation, deceit, or concealment of material fact known to the Defendants and made with the intention of causing injury to the Plaintiff. Malice means either conduct which is specifically intended by the Defendants to cause tangible or intangible injury to the Plaintiff or conduct that is carried out by the Defendants both with a flagrant indifference to the rights of the Plaintiff and with a subjective awareness that such conduct will result in human death or bodily harm. If you find from the clear and convincing evidence that Defendants acted toward Plaintiff with oppression, fraud or malice, then you may, in your discretion, award punitive damages to Plaintiff. KRS 411.184 ______ Given ______ Given as Modified ______ Refused ______ Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 15 If you determine that punitive damages should be awarded, you shall then determine the sum of punitive damages. In determining the amount of punitive damages to be assessed, you should consider the following factors: (a) The likelihood at the relevant time that serious harm would arise from the Defendants misconduct; (b) The degree of the Defendants awareness of that likelihood; (c) The profitability of the misconduct to the Defendants; (d) The duration of the misconduct and any concealment of it by the Defendants; and (e) Any actions by the Defendants to remedy the misconduct once it became known to the Defendants. KRS 411.186 ______ Given ______ Given as Modified ______ Refused ______Withdrawn

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 16 We the jury unanimously finds in favor of the Defendants, Dirty World, LLC and Nik Lamas-Richie, and against Plaintiff, Sarah Jones.

This _____ day of _____________________, _________________________ Foreman of the Jury

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 17 We the jury unanimously find in favor of the Plaintiff, Sarah Jones, and against the Defendant, Dirty World, LLC, and assess the Plaintiff's actual damages in the sum of $____________________.

This _____ day of _________________________.

__________________________ Foreman of the Jury

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DEFENDANTS REQUEST FOR INSTRUCTION NO. 18 We the jury unanimously find in favor of the Plaintiff, Sarah Jones, and against the Defendant, Nik Lamas-Richie and assess the Plaintiff's actual damages in the sum of $____________________.

This _____ day of _________________________.

_________________________ Foreman of the Jury

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CERTIFICATE OF SERVICE I hereby certify that on May 17, 2013, I electronically filed the foregoing Amended Proposed Jury Instructions and Verdict Form of Defendants Dirty World, LLC and Nik LamasRichie with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of record.

/s/ David S. Gingras Counsel for Defendants, Dirty World, LLC and Nik-Lamas Richie