Case 1:10-cv-00897-RJL Document 39 Filed 08/03/10 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
DANIEL PARISI, et al., )
)
Plaintiffs, )
)
v. ) No. 1:10-cv-00897-RJL
)
LAWRENCE W. SINCLAIR a/k/a “Larry Sinclair”, )
et al., )
)
Defendants. )
)

REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’

MOTION FOR A DEFAULT JUDGMENT AGAINST SPI

Plaintiffs, Daniel Parisi (“Parisi”), Whitehouse.com Inc., Whitehouse Network LLC

(“WN”), and White House Communications Inc. (“WHCI”) (collectively referred to as

“plaintiffs”), hereby submit this reply to the response of defendants Lawrence W. Sinclair

(“Sinclair”) and Sinclair Publishing, Inc. (“SPI”) to plaintiffs’ motion for a default judgment

against SPI.1

ARGUMENT

SPI was served on June 7, 2010 (Dkt. No. 4). SPI did not timely file an answer within

the required 21 days, June 28.2 Despite having had 57 days to retain counsel, SPI has failed to

1
Plaintiffs filed their motion for a default judgment on July 8, 2010. (Dkt. No. 24).
Sinclair served an opposition on July 21, 2010 by email and mail and it was filed with the Court
on August 3. (Dkt. No. 37). On July 22, defendant Amazon.com, Inc. filed a response to the
motion for default. (Dkt. No. 30). Plaintiffs filed their reply to Amazon’s response on July 28.
(Dkt. No. 31). On August 3, Sinclair filed a purported “response” to plaintiffs’ reply to Amazon.
(Dkt. No. 38). A surreply is not permitted under Local Rule 7.
2
SPI argues that it filed an answer. (Dkt. No. 28; Dkt. No. 38 at 2). However, SPI is not
represented by counsel and Sinclair cannot appear on its behalf. See, e.g., Rowland v. Cal. Men's
Colony, 506 U.S. 194, 201-02 (1993); Jones v. Niagara Frontier Transportation Auth., 722 F.2d
 Case 1:10-cv-00897-RJL Document 39 Filed 08/03/10 Page 2 of 6

do so. Sinclair has also indicated that there is no need for SPI to retain counsel to represent SPI.

On this record, plaintiffs’ motion for a default judgment should be granted.

Sinclair’s purported dissolution of SPI does not have the effect he believes it has and it is

irrelevant here. A dissolved corporation may be sued if so permitted under the law of the state of

incorporation. Fed. R. Civ. P. 17(b); Brown v. Sunrise Senior Living Servs., 2009 U.S. Dist.

LEXIS 71943, *4-5 (S.D. Fla. Aug. 7, 2009); Grguric v. Little Mermaid S., Inc., 2008 U.S. Dist.

LEXIS 30386, *5 (S.D. Fla. Apr. 10, 2008). “In particular, state corporate law determines the

suability of a dissolved corporation . . . .” Ripalda v. Am. Operations Corp., 977 F.2d 1464,

1468 (D.C. Cir. 1992) (citing Oklahoma Natural Gas Co. v. Oklahoma, 273 U.S. 257, 260

(1927) (capacity of dissolved corporation depends upon the corporate laws enacted by the state

that brought the corporation into being)). Here, SPI is undisputedly a Florida corporation.

(Dkt. No. 15 Ex. B). Florida’s corporation statute speaks to the effect of a dissolution. It

provides, in relevant part, that:

(1) A dissolved corporation continues its corporate existence

but may not carry on any business except that appropriate to
wind up and liquidate its business and affairs, including:

(a) Collecting its assets;

(b) Disposing of its properties that will not be distributed in kind

to its shareholders;

(c) Discharging or making provision for discharging its

liabilities;

(d) Distributing its remaining property among its shareholders

according to their interests; and

(e) Doing every other act necessary to wind up and liquidate its
business and affairs.

20, 22 (2d Cir. 1983); Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366 (Fed. Cir. 1983). Plaintiffs
motion to strike Dkt. No. 28 is pending (Dkt. No. 29).

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 Case 1:10-cv-00897-RJL Document 39 Filed 08/03/10 Page 3 of 6

(2) Dissolution of a corporation does not:

(a) Transfer title to the corporation’s property;

(b) Prevent transfer of its shares or securities, although the

authorization to dissolve may provide for closing the corporation’s
share transfer records;

(c) Subject its directors or officers to standards of conduct

different from those prescribed in ss. 607.0801-607.0850 except as
provided in s. 607.1421(4);

(d) Change quorum or voting requirements for its board of

directors or shareholders; change provisions for selection,
resignation, or removal of its directors or officers or both; or
change provisions for amending its bylaws;

(e) Prevent commencement of a proceeding by or against the

corporation in its corporate name;

(f) Abate or suspend a proceeding pending by or against the

corporation on the effective date of dissolution; or

(g) Terminate the authority of the registered agent of the

corporation.

(3) The directors, officers, and agents of a corporation dissolved

pursuant to s. 607.1403 shall not incur any personal liability
thereby by reason of their status as directors, officers, and
agents of a dissolved corporation, as distinguished from a
corporation which is not dissolved.

Fla. Stat. 607.1405 (emphasis added). “Undisputably, Florida law permits an aggrieved party to

sue a dissolved corporation.” Samples v. Conoco, Inc., 165 F. Supp. 2d 1303, 1319 (N.D. Fla.

2001) (citing Fla. Stat. § 607.1405); see also Grguric, 2008 U.S. Dist. LEXIS 30386, *6; Ron's

Quality Towing, Inc. v. Southeastern Bank of Florida, 765 So.2d 134, 135 (Fla. 1st DCA 2000).

In Brown, the Court ruled that the citizenship of a dissolved Florida corporation was relevant to

determining whether diversity of citizenship existed. 2009 U.S. Dist. LEXIS 71943, *4-5.

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The suggestion by Sinclair and SPI that the purported dissolution removes SPI as a party

or substitutes Sinclair personally for SPI is expressly contradicted by Florida law. Plaintiffs can

pursue their claims against SPI, even assuming arguendo that it has been dissolved.

Sinclair and SPI also claim that the summonses are defective because they supposedly

did not include a name and address for service of answers.3 Sinclair and SPI, however, were

well aware of the name and address of plaintiffs’ counsel. The name and address is set forth in

the complaint and in other documents filed with the Court to commence this case, and which

were personally served on Sinclair and SPI along with the summonses. (Dkt. Nos. 1, 2). On

June 7, 2010, the same day the summons and complaint was served, SPI posted the following on

its website:

Dan Parisi & Patton Boggs, LLP Have Filed Suit, Let The Ride
And Discovery Begin

Today, June 7, 2010 @ 7:55 PM I was served “Summons in a Civil

Action” filed in the United States District Court for the District of
Columbia, “Daniel Parisi, et al, v Lawrence W. Sinclair, et al. Case
number 1:10-cv-0897-RJL (the RJL being District Judge Richard
J. Leon (left) who the case was assigned to.

(Dkt. No. 15 Ex. C; see also Ex. 1). Moreover, Sinclair and SPI also ignore the fact that they

communicated with plaintiffs’ counsel after service of the pleadings (see, e.g., Ex. 2), and served

3
“When an alleged defect in service is due to a minor, technical error, only actual
prejudice to the defendant or evidence of a flagrant disregard of the requirements of the rules
justifies dismissal.” Libertad v. Welch, 53 F.3d 428, 440 (1st Cir. 1995) (holding that District
Court erroneously dismissed claims where the summons failed to state the name of the person
served); see also Chan v. Society Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)
(“Technical defects in a summons do not justify dismissal unless a party is able to demonstrate
actual prejudice.”); Hobson v. Wilson, 737 F.2d 1, 45-46 (D.C. Cir. 1984) (dismissal for
defective service should be granted only when defendant was prejudiced); In re Pharmaceutical
Indus. Average Wholesale Price Litig., 307 F. Supp. 2d 190, 196 (D. Mass. 2004) (“Technical
defects in the form of the summons and the complaint do not invalidate an otherwise proper and
successful delivery of process under Fed. R. Civ. P. 4.”); FDIC. v. Swager, 773 F.Supp.
1244, 1249 (D. Minn. 1991) (“Technical defects contained within a summons do not justify
dismissal unless a party is able to demonstrate actual prejudice.”).

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their various court filings on plaintiffs’ counsel. (See, e.g., Dkt. Nos. 14, 23, 37, 38). This

argument does not provide any basis to deny plaintiffs’ motion for a default judgment.

Finally, Sinclair and SPI’s response to the default judgment motion does not oppose the

specific relief sought by plaintiffs to be included in the judgment -- damages against SPI in the

amount of $5,000,000, an accounting and imposition of a constructive trust as to SPI’s proceeds

from its defamatory statements and its ownership of any assets, including copyrights. Without

any such opposition, no hearing is necessary to award the relief sought pursuant to Fed. R. Civ.

P. 55(b)(2), and a judgment in plaintiffs’ favor should be entered against SPI.

CONCLUSION

For all the foregoing reasons, plaintiffs’ motion for a default judgment against SPI should

be granted.

Dated: August 3, 2010 Respectfully submitted,

/s/ Richard J. Oparil

Richard J. Oparil (D.C. Bar No. 409723)
PATTON BOGGS LLP
2550 M Street, NW
Washington, DC 20037
(202) 457-6000
(202) 457-6315 (fax)

Kevin M. Bell (admitted pro hac vice)

PATTON BOGGS LLP
8484 Westpark Drive
McLean, VA 22102
(703) 744-8000
(703) 744-8001 (fax)

Attorneys for Plaintiffs

5109207

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CERTIFICATE OF SERVICE

I hereby certify that on August 3, 2010, a copy of the foregoing was served on counsel

for the parties that have appeared in the case by the Court’s ECF system and on the following by

email:

Lawrence W. Sinclair
9 Spring Drive
Port Orange, FL 32129
lsinclair@sinclairpublishingllc.com

Sinclair Publishing, Inc.

9 Spring Drive
Port Orange, FL 32129
lsinclair@sinclairpublishingllc.com

s/ Richard J. Oparil
Richard J. Oparil (DC Bar No. 409723)

5109207