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Case 1:10-cv-00897-RJL Document 94 Filed 01/26/11 Page 1 of 3

THE UNITED STATES DISTRICT COURT


1 FOR THE DISTRICT OF COLUMBIA
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3 DANIEL PARISI, et al., )

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Plaintiffs, )
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v. )
6 ) Case No.: 1:10-cv-00897-RJL
LAWRENCE W. SINCLAIR, et al., )
7 )

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Defendants. )
8 )

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DEFENDANT, LAWRENCE W. SINCLAIR’S MOTION TO DISMISS
OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
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Defendant, Lawrence W. Sinclair (“Sinclair”), pro se, pursuant to Fed. R. Civ. P.
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12(b)(6), moves for dismissal of Plaintiffs’ claims against him based on Plaintiffs’ failure to state
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a claim upon which relief can be granted. In the alternative, Sinclair asks this Court to grant
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summary judgment in his favor on Plaintiff’s Complaint. In support of this Motion, Sinclair
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tenders a Memorandum of law. Furthermore, Sinclair adopts, cites, and incorporates in this
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17 Motion the arguments contained in Defendants, Barnes and Noble, Inc. and
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18 Barnesandnoble.com, LLC’s Motion for Summary Judgment and Reply Memorandum in

19 response to Plaintiffs’ Opposition to their Motion for Summary Judgment (Dkt No. 60 and 86).

20 WHEREFORE, Defendant, Lawrence W. Sinclair, respectfully requests that the Court


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21 enter an ORDER dismissing with prejudice the Plaintiffs’ claims against him, or granting
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summary judgment in his favor on those claims, thereby rendering moot the cross-claim filed
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against Sinclair by Defendants, Barnes and Noble, Inc. and Barnesandnoble.com, LLC, awarding
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Sinclair’s Motion To Dismiss Fed. R. Civ. P. 12(b)(6)- 1

PDF processed with CutePDF evaluation edition www.CutePDF.com


Case 1:10-cv-00897-RJL Document 94 Filed 01/26/11 Page 2 of 3

Sinclair his costs, and granting such other and further relief as the Court deems necessary and
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just under the circumstances.
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3 Furthermore, if the Court finds that Plaintiffs have failed to state a claim against him and

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4 the Court enters an Order dismissing said claims, or granting judgment in his favor on such

5 claims, Sinclair also asks that the Court dismiss the claims and cross-claims asserted against

6 Defendant Sinclair Publishing, Inc. on the ground that, since no cause of action can be asserted
7 against Sinclair, individually, no cause of action also can be asserted against Sinclair Publishing,

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Inc., which was solely owned and operated by Sinclair.
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Respectfully submitted this 28th day of January, 2011.
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13 /s/ Lawrence W. Sinclair


Lawrence W. Sinclair, Pro Se
14 Post Office Box 9222
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Chattanooga, TN 37412
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Telephone No. (218)269-2274
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Sinclair’s Motion To Dismiss Fed. R. Civ. P. 12(b)(6)- 2


Case 1:10-cv-00897-RJL Document 94 Filed 01/26/11 Page 3 of 3

CERTIFICATE OF SERVICE
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The undersigned certifies that on January 28, 2011 the foregoing Defendant, Lawrence
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3 W. Sinclair’s Motion to Dismiss was filed electronically with the Clerk of the Court to be served

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4 by operation of the Court’s electronic filing system upon all parties listed below. The

5 undersigned will also serve counsel listed below via electronic mail.

6 Richard J Oparil; ROparil@pattonboggs.com


Kevin M. Bell; kbell@pattonboggs.com
7 Patton Boggs LLP,

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Attorneys for Plaintiffs
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Steven J. Weber; Steven.weber@huschblackwell.com
R. Prescott Sifton, Jr.; scott.sifton@huschblackwell.com
10 Husch Blackwell Sanders, LLP,
Attorneys for Defendant, Books-A-Million, Inc.
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Stephen Smith; steve.smith@klgates.com;
12 Mathew Segal; matthew.segal@klgates.com,
Kari Vander Stoep; kari.vanderstoep@klgates.com
13 John Longstreth; john.longstreth@klgates.com
K&L Gates LLP,
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Attorneys for Defendant, Amazon.com, Inc.


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Linda Steinman; lindasteinman@dwt.com
16 John Eastburg; roryeastburg@dwt.com
Davis Wright Tremaine LLP,
17 Attorneys for Defendants, Barnes and Noble, Inc. and Barnesandnoble.com
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18 JoAnne Zawitoski; jzawitoski@semmes.com


Christina Bolmarcich; cbolmarcich@semmes.com
19 Semmes, Bowen, & Semmes,
Attorneys for Defendant, Jeffrey Rense
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/s/ Lawrence W. Sinclair
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Sinclair’s Motion To Dismiss Fed. R. Civ. P. 12(b)(6)- 3


Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 1 of 27

THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

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)

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DANIEL PARISI, et al., )

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Plaintiffs, )
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)
v.
) Case No.: 1:10-cv-00897-RJL
)
LAWRENCE W. SINCLAIR, et al., )
)

tor
Defendants. )
)

MEMORANDUM IN SUPPORT OF DEFENDANT,


LAWRENCE W. SINCLAIR’S MOTION TO DISMISS
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OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

Defendant, Lawrence W. Sinclair (“Sinclair”), pro se, hereby moves to dismiss Plaintiffs’

claims against him pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which

relief can be granted for the reasons set forth below. In the alternative, Sinclair requests that this
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Court grant summary judgment in his favor on Plaintiffs’ Complaint pursuant to Fed. R. Civ. P.

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STATEMENTS OF IRREFUTABLE FACT

The following statements of fact are true, as supported by the attached Declaration of

Lawrence W. Sinclair (see Exhibit A), and Plaintiffs cannot refute them.

1. On January 17, 2008, Defendant, Lawrence W. Sinclair posted a video on


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YouTube.com in which Sinclair made allegations that then Senator Barack Obama had engaged

in consensual sexual acts with Sinclair and used illegal drugs in Sinclair’s presence in November

1999. In this video Sinclair stated that he would take a polygraph test if Mr. Obama agreed to

take one too.


Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 2 of 27

1 2. Before posting this YouTube video, Sinclair had been verbally asked by The New

2 York Post (“The Post”) if Sinclair would agree to take a polygraph exam. Sinclair told The Post

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3 reporter that he would take the test. When Sinclair asked The Post reporter if The Post would pay

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4 for the polygraph The Post reporter told him that it is not proper for a news organization to

5 arrange and/or pay for a polygraph.

6 3. Shortly after posting the YouTube video, Sinclair was contacted by a Chicago

7 Tribune Washington, D.C. reporter, John Crewdson, and asked if Sinclair would agree to a face-

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8 to-face interview. Sinclair agreed to the interview. At the same time, Sinclair was contacted by a

9 New York Times reporter also seeking an interview. Sinclair met John Crewdson, of the

10 Chicago Tribune, in Duluth, Minnesota for five days in late January or early February in 2008.
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11 4. On the morning of February 15, 2008, Sinclair posted on his YouTube page and

12 his “larrysinclair0926.spaces.live” page a notice that he had contacted Jack Trimarco, former

13 FBI polygraph expert, asking Mr. Trimarco:


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14 A. If Mr. Trimarco could conduct a polygraph exam of Sinclair;

15 B. The cost for Mr. Trimarco to conduct a polygraph exam;

16 C. If Mr. Trimarco was “a-political” or if he was partisan to any party; and


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17 D. If Mr. Trimarco could state that he was not associated with any presidential

18 candidate or party.

19 5. Beginning the late 1990’s, Plaintiff, Daniel Parisi (“Parisi”) operated the website,
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20 WhiteHouse.com, (as well as other websites) as a pornographic website. In 2003, Congress

21 passed the Truth in Domain Names Act. The Truth in Domain Names Act was an attempt to

22 protect children from exploitation by thwarting the use of deceitful domain names for the

23 purpose of attracting users to pornographic websites. At some point after the passage of this

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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 3 of 27

1 legislation, Plaintiffs announced that Parisi was placing the domain name WhiteHouse.com up

2 for sale, and had decided to convert “WhiteHouse.com” from a pornography website (there are

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3 multiple news reports with multiple reasons cited for Parisi’s decision including “wanting to give

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4 the site back to the people,” and “Parisi’s fears his new child would be subjected to harassment

5 and ridicule over Parisi’s businesses”). See Exhibit B. After failing to sell the domain name, in

6 January 2008, Plaintiffs began an attempt to return “WhiteHouse.com” to a political website and

7 these efforts “were underway” in 2008 as Plaintiffs allege in Paragraph 17 of their Complaint.

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8 6. On February 15, 2008, after Sinclair posted notice on his YouTube page that he

9 had contacted the office of Mr. Trimarco, Plaintiffs posted the following notice on the website,

10 WhiteHouse.com: “WhiteHouse.com Presents: The $100,000 Larry Sinclair Polygraph


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11 Challenge.” This posting, made at approximately 3:30 p.m. eastern standard time, challenged

12 Sinclair to “put up or shut up.” See Exhibit C (“WhiteHouse.com Presents: The $100,000 Larry

13 Sinclair Polygraph Challenge”).


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14 7. On February 15, 2008, Plaintiff sent Sinclair, via Federal Express, next day

15 delivery on a Saturday, a slightly different written version of the offer posted on

16 WhiteHouse.com. See Exhibit D (February 15, 2008 Letter to Sinclair from Parisi and
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17 WhiteHouse.com). Sinclair received Parisi’s written offer of a “$100,000 Polygraph Challenge”

18 (“the Challenge”) on Saturday, February 16, 2008. See Exhibit E (“FedEx US Air bill” and

19 “FEDEX Saturday Priority Overnight bar-coded label”).


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20 8. Sinclair e-mailed Parisi on February 16, 2008 at 11:05 a.m. central standard time,

21 See Exhibit F (February 16, 2008 Sinclair e-mail to Parisi), setting forth the conditions under

22 which Sinclair would accept Parisi’s Challenge. Parisi responded to Sinclair’s e-mail on

23 February 16, 2008 at 11:10 a.m. See Exhibit G (February 16, 2008 Parisi e-mail to Sinclair). At

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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 4 of 27

1 11:32 a.m. on that same day, Parisi sent Sinclair another e-mail, see Exhibit H (February 16,

2 2008 Parisi’s second e-mail to Sinclair) asking Sinclair to publish on Sinclair’s YouTube page

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3 the “$100,000 Polygraph Challenge,” apparently for the purpose of gaining publicity for

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4 WhiteHouse.com and the Challenge.

5 9. After Sinclair accepted “the Challenge,” Plaintiffs immediately began publishing

6 articles about “the Challenge” on WhiteHouse.com, thereby fanning the fires of what was

7 already a very heated public and political controversy over allegations made by Sinclair against

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8 Barack Obama.

9 10. On February 17, 2008, Sinclair received a telephone voicemail message from Mr.

10 Trimarco informing Sinclair that he could not perform a polygraph exam of Sinclair. On this
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11 same date, Parisi and WhiteHouse.com published an article entitled “Larry Sinclair Accepts

12 WhiteHouse.com $100,000 Polygraph Challenge.” See Exhibit I (Screen Shot of “Larry Sinclair

13 Accepts WhiteHouse.com $100,000 Polygraph Challenge” as it appeared on WhiteHouse.com).


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14 The article stated, among other things:

15 The truth will set you free they say, but the truth plus $100,000
will set you even freer. That's the conclusion our good friend
16 Larry Sinclair has come to after considering the offer we made
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him yesterday: $10,000 to take a polygraph test over his Barack


17 Obama sex and drugs claims, and $100,000 if he passes it.

18 After communicating via email to work out the logistics of the


challenge, we were able to reach an agreement. Now, the plan is
19 to get together with Sinclair and one of the best polygraph experts
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in the country, and ask him some questions – with the camera
20 rolling, of course. As more details are made available we will post
it here.
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The results of the whole thing will be posted right here on
22 Whitehouse.com. Our pockets lighter by either ten grand or ten
times that amount, we'll all have a better sense of what to make of
23 Sinclair's almost-too-unbelievable-to-be-unbelievable allegations
against a Senator who is poised, perhaps, to make history.
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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 5 of 27

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Mr Sinclair has put up instead of shutting up so we will see which
2 way the chips fall.

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3 http://www.whitehouse.com/NewsComments.aspx?start=&NewsID=109

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4 11. On February 18, 2008, Plaintiffs announced on WhiteHouse.com at 1:00 p.m.

5 eastern standard time that the Polygraph Challenge had been scheduled for New York on the

6 following Tuesday. See Exhibit J (Screen shot of “Larry Sinclair $100,000 Polygraph Challenge

7 has been scheduled for next Tuesday in New York City” as it appeared on WhiteHouse.com).

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8 The article stated “Since the outcome of the test will be vital interest to the voting public our

9 findings will be made available before the presidential primaries in Texas and Ohio slated for

10 March 4.” See Exhibit J.


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11 12. In an e-mail sent by Parisi to Sinclair on February 18, 2008, two hours and forty-

12 four minutes after publishing the polygraph had been scheduled, Parisi indicated that the

13 Polygraph Challenge had not yet been scheduled and would be administered by “Dr. Ed Gelb”
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14 asking Sinclair to pick either Friday or Saturday. See Exhibit K (February 18, 2008 3:44 p.m.

15 Parisi e-mail).

16 13. From February 15, 2008 through at least February 26, 2008, Plaintiffs allowed
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17 comments to be posted by the public on WhiteHouse.com stating that “Dan Parisi is a

18 pornographer,” that Parisi “made his millions off of pornography,” that “WhiteHouse.com is best

19 known as an internet pornography site.”


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20 14. From February 16, 2008 through February 21, 2008, Parisi and Sinclair traded

21 numerous e-mails arguing about, inter alia, payment terms for the Challenge and who would be

22 permitted to witness the polygraph exam, and Parisi promise to disclose the verbal results of

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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 6 of 27

1 polygraph at the time they are given (which is always immediately after the test is completed.)

2 See Exhibits L-S

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3 15. On February 21, 2008, Parisi and WhiteHouse.com assistant editor Robert

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4 Braddock (“Braddock”) (who presented a North Carolina Driver’s License as identification)

5 appeared at Sinclair’s Duluth, Minnesota apartment to escort Sinclair to Los Angeles, California

6 for the polygraph examination which was scheduled for Friday, February 22, 2008. See Exhibit

7 T (Sinclair Flight Information). Parisi and Braddock both personally stated to Sinclair, while he

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8 was in route to and in Los Angeles on February 21 and 22, 2008, that “they” were still producing

9 and distributing pornography.

10 16. On February 22, 2008, at 11:15 a.m. eastern standard time, Parisi published an
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11 article on WhiteHouse.com entitled “Larry Sinclair agrees to reduced payout with $10,000 going

12 to Charity.” In that article, Parisi falsely published “Larry Sinclair wants to change the payout of

13 our Polygraph Challenge and we’ve agreed.” See Exhibit U (Screen shot of WhiteHouse.com’s
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14 “Larry Sinclair agrees to reduced payout with $10,000 going to Charity” as it appeared on

15 February 22, 2008).

16 17. On February 22, 2008, Sinclair was met in front of the Hilton Checkers Hotel by
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17 Braddock and a man claiming to be Parisi, who refused to produce any identification to Sinclair.

18 18. Sinclair was driven to the offices of Edward Ira Gelb (“Gelb”), the self-

19 proclaimed polygraph operator to the stars1, by Parisi and Braddock. Once there, Sinclair
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Gelb has administered polygraph test to a number of famous people including John and Patsy Ramsey (parents of
22 murder victim Jon Benet Ramsey) and O.J. Simpson Gelb had publicly claimed to hold a Ph.D. degree in
psychology since at least 1996. In 1997, he represented himself as a Ph.D. to the highest court in the land -- the
United States Supreme Court -- as a co-signer of the Committee of Concerned Social Scientists’ amicus brief in U.S.
23 v. Scheffer, where he is listed as "Ed Gelb, Ph.D." It turns out that Gelb’s Ph.D. is from a defunct, unaccredited
diploma mill in Mandeville, Louisiana. See www.antipolygraph.com/articles/article-036.shtml.
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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 7 of 27

1 completed in excess of five (5) hours of questioning by Gelb. After the entire process was

2 completed, Gelb, Parisi, and Braddock told Sinclair that the results of the test “would not be

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3 known until Monday at the earliest after Gordon Barland reviews the data.” Allegedly, Gordon

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4 Barland of Salt Lake City, Utah was supposed to conduct a “Blind Score” of Gelb’s chart before

5 any public disclosure of Gelb’s polygraph results would be made. Nevertheless, Plaintiffs chose

6 to publish the scores of Gelb before Barland ever received the data he was supposed to blind

7 score.

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8 19. On February 22, 2008 at 8:45 p.m. eastern standard time, Parisi published a false

9 and fabricated article on WhiteHouse.com titled “BREAKING NEWS - Larry Sinclair

10 Completed 4 Hour Polygraph Test Today.” See Exhibit U. Parisi’s article began with the
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11 statement “Due to security concerns, we had to move the Larry Sinclair Polygraph up a few

12 days,” however, the polygraph was never scheduled with Sinclair for any time other than

13 February 22, 2008. The “BREAKING NEWS” article also stated that “The results [of the
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14 polygraph exam] are being confirmed by a second expert and we’ll have conclusive word, along

15 with video of the whole thing, Monday or Tuesday.” See Exhibit U.

16 20. On February 23, 2008, Parisi, seeking further publicity, published an article on
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17 WhiteHouse.com with the headline “BREAKING NEWS - Larry Sinclair Passes Drug Test.” See

18 Exhibit V (Screen Shot of WhiteHouse.com). In this “BREAKING NEWS” article, Parisi stated

19 that “Video of the polygraph exam will be posted shortly.” During Sinclair’s flight from Los
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20 Angeles back to Minneapolis, while his cell phone was off, Parisi and Braddock had left

21 numerous voicemail messages on that cell phone threatening Sinclair, saying that Parisi and

22 WhiteHouse.com would publish that Sinclair had failed the polygraph and that he was lying if

23 Sinclair did not give them the name of the limo driver who witnessed Barack Obama with

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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 8 of 27

1 Sinclair in November 1999 and copies of e-mails between Sinclair and attorney, Gloria Allred.

2 During the layover at Minneapolis Airport, Sinclair received a telephone call from Parisi and

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3 Braddock in which they again demanded that Sinclair turn over the name and phone number of

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4 the limo driver, as well as the e-mails between Sinclair and Allred, or else Plaintiffs would

5 publish on WhiteHouse.com that Sinclair had failed the polygraph Challenge. Sinclair made it

6 clear to both Parisi and Braddock in that call that Sinclair had no intention of providing copies of

7 e-mails between Sinclair and Allred, nor would he provide any information on the limo driver

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8 without the permission of the driver.

9 21. On February 24, 2008, Sinclair returned home to constant harassment, demands

10 and threats by Parisi. Parisi began e-mailing Sinclair on February 24, 2008 claiming that Parisi
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11 would publish on WhiteHouse.com an article reporting that Sinclair had failed the polygraph.

12 When Sinclair failed to give in to Parisi’s demands for information, on February 24, 2008 at

13 11:45 a.m. eastern standard time, Parisi published an article on WhiteHouse.com titled “We will
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14 be releasing results of Mr. Sinclair’s 2 polygraph tests done by first expert at Noon today.” See

15 Exhibit V (Screen shot of WhiteHouse.com). This article falsely stated that “[W]e have just

16 received word that the second polygraph experts results will be done in about an hour,” thereby
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17 falsely implying that Sinclair had been examined by multiple polygraph examiners. Upon

18 information and belief, Dr. Gordon Barland had not at that time received the data necessary to

19 conduct a “blind score” and he never personally administered a polygraph exam to Sinclair.
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20 22. On February 24, 2008 at 2:15 p.m. eastern standard time, Parisi published on

21 WhiteHouse.com an article titled, “Deception Indicated in Both of Larry Sinclair’s Polygraph

22 Tests by First Polygraph Expert,” see Exhibit W (Screen shot of WhiteHouse.com), again falsely

23 suggesting that Sinclair has been examined by someone other than Gelb.

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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 9 of 27

1 23. On February 25, 2008 at 12:48 a.m. eastern standard time, Sinclair received a

2 phone call from an anonymous man who informed Sinclair that the polygraph exam arranged by

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3 Parisi of WhiteHouse.com was a set-up; that Parisi had been paid by the Obama campaign and/or

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4 David Axelrod to rig the polygraph; that Parisi would be placing a stop payment on the check

5 Parisi had issued to Sinclair, and that Parisi had been paid to arrange the polygraph. Sinclair

6 emailed Parisi at 1:46 a.m. central time on February 25, 2008 concerning this information that

7 Sinclair had been given in the 12:48 a.m. central standard time phone call. Instead of

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8 responding, Parisi published on WhiteHouse.com on February 25, 2008 at 4:15 p.m. eastern

9 standard time “WhiteHouse.com Releases Larry Sinclair Official Polygraph Results by Dr.

10 Gelb.” See Exhibit W (Screen shot of WhiteHouse.com).


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11 24. Parisi had posted an article on WhiteHouse.com on February 26, 2008 at 2:35

12 p.m. eastern standard time stating that “We are no longer going to post anything else on Larry

13 Sinclair Matter” See Exhibit X (February 26, 2008 screen shot from WhiteHouse.com at 2:35
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14 p.m. eastern standard time).

15 25. On February 26, 2008 Parisi sent Sinclair an email at 3:47 p.m. eastern standard

16 time alleging that polygraph expert Barland had concurred with Gelb’s findings, and then Parisi
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17 sent a second email at 3:55 p.m. eastern standard time wherein he stated “we will not post the

18 [Barland] report” See Exhibit Y (February 26, 2008 Parisi e-mails to Sinclair).

19 26. On February 26, 2008, Parisi shut down comments about the Challenge on
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20 WhiteHouse.com until he had implemented a system requiring individuals to register before

21 commenting on the site. See Exhibit Z (February 26, 2008 screen shot of WhiteHouse.com

22 referring to canceling postings pending implementation of registration process).

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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 10 of 27

1 WhiteHouse.com was later restored, but all articles and comments that had previously been

2 posted about Sinclair had been removed from the website and its archives.

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3 27. On February 28, 2008, Sinclair was notified by US Bank in Duluth, Minnesota

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4 that the $20,000.00 check issued to Sinclair by Parisi and WhiteHouse.com for the polygraph test

5 had been returned, due to Parisi placing a STOP PAYMENT on the check. See Exhibit AA

6 (Copy of returned Parisi check).

7 28. In or about June 2008, Sinclair decided to hold a Press Conference to disclose all

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8 the allegations Sinclair had made concerning then-Senator Obama. Sinclair had arranged to hold

9 the Press Conference at the National Press Club in Washington, D.C. on June 18, 2008 starting at

10 1:00 p.m. The announcement of the planned Press Conference by Sinclair brought very vocal and
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11 public outrage against the National Press Club and even became the subject of one of MSNBC’s

12 Keith Olbermann “worst person” tirades. Parisi, seeking yet more publicity in connection with

13 this very public and heated political controversy, decided to hold his own press conference at the
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14 National Pres Club later that same day but in a different room. On June 16, 2008, Plaintiffs

15 published an article on WhiteHouse.com titled: “WhiteHouse.com Larry Sinclair Polygraph

16 Press Conference at National Press Club June 18 at 4:00 p.m.” See Exhibit BB (Screen shot of
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17 WhiteHouse.com from June 16, 2008). Shortly after the Parisi Press Conference was cancelled,

18 Parisi deleted the June 16, 2008 article “WhiteHouse.com Larry Sinclair Polygraph Press

19 Conference at National Press Club June 18, at 4:00 p.m.” from WhiteHouse.com. See Exhibit
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20 CC (June 19, 2008 “WhiteHouse.com Or Is It Whitewash.com?” Article from Blogger News

21 Network).

22 29. In early 2009, based on his own personal experiences, Sinclair wrote and

23 published his book “Barack Obama & Larry Sinclair: Cocaine, Sex, Lies & Murder?” (“the

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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 11 of 27

1 Book” or “Sinclair’s Book”). Sinclair’s Book is a first person account of Sinclair’s personal life,

2 the events which took place between Sinclair and then-Senator Obama, and what transpired after

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3 Sinclair made his allegations about then Senator Obama public.

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4 30. Although Sinclair’s Book was written and published in early 2009, it was not until

5 May 28, 2010 that Sinclair received a letter delivered by FedEx from Richard J. Oparil of Patton

6 Boggs LLP, Plaintiffs’ counsel, claiming “the Book” was defamatory towards Daniel Parisi,

7 Whitehouse.com, WhiteHouse Networks LLC, and WhiteHouse Communications Inc. See

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8 Exhibit DD, (Letter from Oparil to Sinclair dated May 27, 2010). In that letter, Mr. Oparil

9 demanded that Sinclair stop printing, offering for/or selling the Book. Mr. Oparil’s letter did not

10 identify what material in the Book the Plaintiffs’ claimed was defamatory. On that same day,
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11 Plaintiffs also filed this action, naming Books-A-Million, Inc., Barnes and Noble, Inc.,

12 Barnesandnoble.com, LLC, Amazon.com Inc, and Jeffrey Rense as additional Defendants to the

13 suit. Plaintiffs have never sought any form of injunctive relief to stop the publication and
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14 dissemination of Sinclair’s Book.

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Sinclair’s Memorandum in Support of Motion to Dismiss
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1 ARGUMENT AND AUTHORITIES

2 I. Legal Standards for Dismissal and Summary Judgment

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3 “On a motion to dismiss for failure to state a claim upon which relief can be granted

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4 pursuant to Federal Rule of Civil Procedure 12(b) (6), the court must construe the allegations and

5 facts in the complaint in the light most favorable to plaintiff.” Vila v. Inter-American Investment,

6 Corp., 570 F.3d 274, 290 (D.C. Cir. 2009). However, a Fed. R. Civ. P. 12(b)(6) motion to

7 dismiss should be granted if a claim is not “supported by … facts consistent with the allegations

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8 in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007).

9 In Twombly, the Court refined the standards for dismissal under Fed. R. Civ. P. 12(b)(6),

10 creating a new, stricter standard of a pleading’s required specificity. Previously, under the
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11 standard the Court set forth in Conley v. Gibson, 355 U.S. 41 (1957), a complaint need only state

12 a “conceivable” set of facts to support its legal claims - that is, that a court could only dismiss a

13 claim if it appeared, beyond a doubt, that the plaintiff would be able to prove no set of facts in
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14 support of her claim that would entitle her to relief. In Twombly, the court adopted a more strict,

15 “plausibility” standard, requiring in this case “enough fact[s] to raise a reasonable expectation

16 that discovery will reveal evidence of illegal agreement.”


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17 Since Twombly was an anti-trust case, the general applicability of this heightened

18 standard of pleading outside of antitrust cases was established in Ashcroft v. Iqbal, 129 S.Ct.

19 1937 (2009).
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20 On a motion for summary judgment, the motion should be granted if the Court finds that

21 there are no disputes of material facts and that Sinclair is entitled to Judgment as a matter of law.

22 Fed. R. Civ. P. 56.

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Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 13 of 27

1 II. Plaintiffs’ Alleged Claims Against Sinclair for Defamation Are Not Plausible

2 A. The Alleged Defamatory Statements are Substantially True.

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3 Plaintiffs’ Complaint fails to state a claim against Sinclair for which relief can be granted,

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4 first, because the statements Plaintiff complains about in the Book are true and/or substantially

5 true.

6 In their Complaint (Dkt No. 1 at ¶ 32), Plaintiffs allege that the Book is replete with

7 “vicious attacks on Parisi and Whitehouse.com,” particularly the following passages:

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8 In fact, at 12:48 a.m. on February 25, 2008 (the day before Barland’s
review was even conducted), I received a telephone tip from 207-252-2796
9 and 207-899-0872, advising me that the polygraph was rigged and was
arranged by Dan Parisi and Obama Campaign advisor David Axelrod. The
10 man giving me the tip stated that, “Axelrod and the Obama campaign had
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agreed to pay Dan Parisi of Whitehouse.com, $750,000 to arrange a rigged
11 polygraph. Parisi and Axelrod were in a heated argument because the
Obama camp wanted Parisi to publish that you had failed the polygraph
12 faster than what Parisi had said. Parisi was refusing to publish anything
further on the polygraph until he was paid the other half of the three-
13 quarters of a million dollars agreed on.”
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14
When I received this information, I contacted Dan Parisi and informed him
15 of what was stated, and I asked Parisi to confirm or deny the allegations.
Instead of Parisi denying or confirming the allegations that he refused to
16 respond to the statements and then posted a statement on Whitehouse.com
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that he had been threatened repeatedly by “Sinclair’s supporters and that


17 Whitehouse.com would not publish anything further regarding Larry
Sinclair.” In addition, Parisi immediately shut down Whitehouse.com,
18 completely scrubbed the site of all posts and comments on the Larry
Sinclair/Barack Obama story, and revamped the format of the website
19 requiring individuals to register with Whitehouse.com before being able to
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comment. It was at that time, Whitehouse.com became the staunchest


20 promoters of Barack Obama, while slamming Hillary Clinton non-stop. I
also had asked Parisi to respond; I forwarded the information to Chicago
21 Tribune reporter John Crewdson and asked him to look into who the tipster
was. Crewdson actually spoke to the tipster and was told the same thing. In
22 addition, the tipster stated that I should look very carefully at the FEC
campaign finance reports for the period from January 1 through March 31,
23 2008 for the payments to Parisi. The tipster also advised me that Parisi had

24
13
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 14 of 27

1 many different holding companies, and the Obama campaign would not
have made a single individual payment.
2
Immediately after confronting Whitehouse.com’s Dan Parisi about the

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3 allegations that he arranged a rigged polygraph exam, he issued a stop
payment of the check issued to me for the polygraph exam. You see, Parisi

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4 had made a deal with David Axelrod and the Obama campaign. All of this
occurred on the very day that I published emails to Mr. Parisi asking for his
5 response to the claims made in an anonymous telephone tip.

6
The information Edward Gelb had obtained from the extensive pre-
polygraph interview suddenly was being posted on the internet at
7

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DemocraticUnderground.com, MyBarackObama.com, HuffingtonPost.com
and others. Only the information had been distorted and edited. In fact, it
8
was after the rigged “polygraph/fishing expedition” arranged by Dan
Parisi in a deal with advisor David Axelrod, that direct attacks began on
9
the internet and by phone against my father’s last wife, my nieces and
nephews, my mother and my brothers and sisters.
10
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11
Finally, in February 2008 I was told anonymously that Dan Parisi of
Whitehouse.com received $750,000 from the Obama campaign through
12
AKR Media to organize an effort to publicly discredit me. When I
confronted Parisi with this allegation, he did not deny it but instead
13
withdrew the second exonerating polygraph report of Dr. Gordon Barland.
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He also failed to post the video of my polygraph as he and Whitehouse.com


14
promised they would do. He even removed posts from their web site
altogether, claiming that they had "had enough of the attacks by Sinclair's
15
supporters and Sinclair himself.”
16
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After the polygraph exam was announced by the internet pornography


17
fraud Dan Parisi on Whitehouse.com.
18
However, it is not plausible that Plaintiffs could assert a claim against Sinclair for
19
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defamation based on these statements, because they are all true and/or substantially true.
20
Moreover, Plaintiffs cannot put forward an Affidavit disputing these facts. Sinclair did receive
21
the phone call on February 25, 2008 at 12:48 a.m. as stated in the Book and was given the
22
information as stated in the paragraphs cited by plaintiffs. Sinclair did contact Plaintiffs after
23
receiving the “phone tip” and Parisi did immediately issue a “STOP PAYMENT” on
24
14
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 15 of 27

1 WhiteHouse.com’s check; did publish a statement alleging WhiteHouse.com had been repeatedly

2 threatened and harassed by “Sinclair supporters;” did state “we will not publish anything else on

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3 the Larry Sinclair matter;” did remove Sinclair posts and comments; did remove comments on

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4 the Sinclair posts; and did institute a registration process. Information obtained by Gelb in the

5 extensive pre-polygraph interview was being used on blogs and internet forums to attack Sinclair

6 after the polygraph. It was after the polygraph that direct attacks began on Sinclair’s family

7 members by phone and over the internet. These statements are truthful. See Copeland-Jackson,

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8 55 F.Supp.2d at 217 (“If a publication is substantially true, then it is “true” as a legal matter for

9 defamation purposes.”).

10 Parisi is world famous for his involvement in pornography and has himself boasted in
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11 repeated news interviews of making “a million dollars a year” on internet pornography. (Parisi

12 claimed the “Whitehouse.com site…earns more than $1 million each year in revenue …” and

13 “draws more than 2 million visitors each month.”) See Exhibit B. (Whitehouse.com to get out of
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14 the Porn Business Associated Press). Plaintiffs have earned a reputation that persists to this date,

15 brought on by Plaintiffs own acts and business dealings in the internet pornography business, and

16 they now want a court to play priest and give them absolution.
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17 Plaintiffs next allege in the Complaint [Dkt No. 1 at ¶71] that Sinclair defamed them by

18 claiming “that in 2008-09 Whitehouse.com contained pornography and engaged in unlawful and

19 fraudulent conduct.” However, Sinclair never made any such statement or claim in his Book.
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20 Plaintiffs’ additional claim that Sinclair accused Plaintiffs of involvement in a “murder cover

21 up,” are completely without any basis in fact. Sinclair never makes any reference in his Book to

22 Parisi or WhiteHouse.com having any knowledge or involvement in the murder of Donald

23 Young. In fact, Plaintiffs admit in their Complaint that Sinclair never mentioned or disclosed to

24
15
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 16 of 27

1 Plaintiffs any information concerning Young. Sinclair never made any statements in the Book as

2 to whether the actions of Parisi or WhiteHouse.com were “criminal” nor “criminally fraudulent”

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3 as alleged by Plaintiffs.

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4 Sinclair’s statements concerning Parisi and WhiteHouse.com being an internet

5 pornographer and internet porn site in the Book were based on fact and therefore are

6 “substantially true.” In addition, Parisi and WhiteHouse.com advertised WhiteHouse.com as

7 “celebrating our 11th year” and “having been visited by over 100 million people since its

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8 inception.” See Exhibit BB. Such a claim clearly included WhiteHouse.com’s “pornography”

9 years as well as its visitors to WhiteHouse.com during its “non-pornography” days. By Parisi’s

10 own admission “no one went to WhiteHouse.com when it was a free speech site…since going to
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11 porn we average 2 million visitors per month” See Exhibit B.

12 Courts have held in analogous situations that statements about an individual’s past are

13 substantially true even when there are changed circumstances at the time of publication. For
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14 example, in Hughes v. Hughes, 122 Cal. App. 4th 931, 937 (2004), the statement “[o]ur dad’s a

15 pimp” was found to be a substantially true statement even though plaintiff was no longer

16 engaging in such activities. See also Guccione v. Hustler Magazine, Inc., 800 F.2d 298,302-303
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17 (2d Cir. 1986)(holding that statement about plaintiff’s current conduct is substantially true even

18 though plaintiff was no longer engaged in such conduct). Similarly, in G.D. v. Kenny, 984 A.2d

19 921, 934 (N.J. App. 2009), the court held the statement about the plaintiff’s past criminal
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20 conviction made by the defendant in a political flier were substantially true even though at the

21 time of dissemination the conviction had been expunged as if it “never occurred.” See also Bahr

22 v. Statesman Journal Co., 624 P.2d 664, 667 (Ore. 1981) (statements that plaintiff had been

23

24
16
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 17 of 27

1 convicted of crime were substantially true even though record had been erased pursuant to state

2 statute).

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3 Plaintiffs do not contend that WhiteHouse.com was never a “commercial porn site.”

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4 They merely state that it was not such a website during the “relevant time period.” But such

5 minor technicalities cannot form the basis of a libel claim.

6 While the statements regarding Mr. Parisi and WhiteHouse.com2 are clearly not false,

7 even if this was a close call, the court must err in favor of the Defendants. See Liberty Lobby,

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8 Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292 (D.C. Cir. 1988)(“Where the question of truth or

9 falsity is a close one, a court should err on the side of nonactionability.”) Gertz v. Robert Welch,

10 Inc., 418 U,S, 323, 345 (1974). Because the alleged defamatory statements in the Book are
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11 substantially true, Plaintiffs cannot state a claim for defamation and their related claims in the

12 Complaint must be dismissed too, as they stem from the implausible claims for defamation.

13 B. Plaintiffs Are Public Figures and Cannot Prove Actual Malice


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14 In order to state a claim for defamation under the facts in this case, Plaintiffs must prove

15 actual malice -- which they cannot do. Under Gertz v. Robert Welch, Inc., 418 U,S, 323, 345

16 (1974), an individual is classified as a public figure either (1) when the person “assume[s] roles
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17 of especial prominence in the affairs of society (an all-purpose public figure); or (2) when they

18 have “thrust themselves to the forefront of particular public controversies in order to influence

19 the resolution of the issues involved” (a limited-purpose public figure). The D.C. Circuit
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20 employs a three-part test to determine if an individual is a limited-purpose public figure,

21 examining (1) the nature of the public controversy, (2) the plaintiff’s role in the controversy, and

22

23 2
The other Plaintiffs are not addressed in the Book at all. Hence, Sinclair is entitled to a dismissal
as a matter of law of all claims made against him by Whitehouse Network, LLC and White House
24 Communication, Inc. See Footnote 3.
17
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 18 of 27

1 (3) “whether the alleged defamation was germane to the plaintiff’s role in the controversy.”

2 Lohrenz v. Donnelly, 350 F.3d 1272, 1279 (D.C. Cir. 2002); see also Pendleton v. City of

Haverhill, 156 F.3d 57, 67 (1st Cir. 1998).

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3

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4 Plaintiffs Parisi and WhiteHouse.com are, at a minimum, limited-purpose public figures.3

5 Parisi’s adult websites – in particular, WhiteHouse.com – achieved global notoriety for their

6 sexually explicit content.4 This fact is not only relevant to their roles as public figures but

7 completely undermines Parisi’s claim that he was defamed by the description of him as an

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8 “internet porn king.” (Dkt No. 1 at ¶36). Indeed, Parisi has spoken to the press about his

9 involvement in the porn industry and about WhiteHouse.com on numerous occasions. (See n. 4.)

10 In addition, Parisi’s provocatively-named adult-entertainment websites (including


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11 WhiteHouse.com and Madonna.com) received nationwide attention and became the center of a

12

13
3
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The Contested Copy and Sinclair’s Book only mention Plaintiffs Parisi and WhiteHouse.com. The
14 Book does not mention Whitehouse Network, LLC or White House Communications Inc. Because the
statements to which Plaintiffs’ complain are not “of and concerning” these additional entities, they may
not assert claims against Defendants arising out of statements contained in the Book and to which they are
15
not mentioned. Washington Post co. v. Keough, 365 F.2d 96, 970, n.5 (D.C. Cir. 1996).
16 4
See, e.g. Al Kamen, White House’s About-Face, Washington Post, Feb. 13, 2006 (“Dan Parisi, president
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of WhiteHouse.com, the former porn site that became a financial services site, writes to say he’s taking
17 the site in a new direction…. ‘It seems that people visiting the site only care about porn,’ Parisi said….”);
Donna De Marco, Wash. Times, Aug. 30, 2004 (“Mr. Parisi is . . . the owner of the pornographic Web site
18 Whitehouse.com . . . which attracts more than 2 million visitors a month”); James Gleick, Get Out of my
Namespace, N.Y. Times, May 21, 2004 (“The singer Madonna Ciccone won madonna.com from one Dan
19 Parisi, who was running yet another ‘adult-entertainment portal.’”); Paul Bond, Infamous Whitehouse
Domain on Block, Hollywood Reporter, 382 (30) 79 (Feb. 13, 2004) (“The Web site Whitehouse.com
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20 gets 2 million visitors per month. Some, no doubt, are seeking information regarding 1600 Pennsylvania
Ave. What they get instead is naked women…. The domain name Whitehouse.com was registered by Dan
Parisi, who first launched the site as a place to go for uncensored political speech. ‘We turned it into an
21 adult site because no one was going there,’ he said.”); Interview with Dan Parisi, Fox News: Your World
(Business), Feb. 11, 2004 (Parisi states he has been “in the [adult content/pornography] business now for
22 seven years”); Rick Fulton, Daily Record (Scotland), Oct. 17, 2000 (“Madonna yesterday won control of
the Internet name madonna.com. In Geneva, a three-member panel of the United Nations World
23 Intellectual Property Organization ruled that the singer could take over the site from New Jersey porn
entrepreneur Dan Parisi.”).
24
18
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 19 of 27

1 public debate over domain name rights that involved both the White House and Madonna, who

2 ultimately won the name “Madonna.com” from Parisi. (See n. 4.)

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3 Pertinent to this case, Parisi and WhiteHouse.com achieved prominence by injecting

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4 themselves into the public debate surrounding Sinclair’s allegations regarding Barack Obama.

5 Their efforts to “take on” Sinclair were widely-publicized, including by Plaintiffs themselves, as

6 the Complaint concedes.5 (See Dkt No. 1 at ¶¶ 23-28). Parisi reached out to contact Sinclair

7 regarding his allegations related to then-Senator Obama; offered to pay Sinclair to take

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8 polygraph examinations; and reported on his interactions with Sinclair and the results of the

9 polygraph examinations online on WhiteHouse.com. Parisi then continued to publish statements

10 on the subjects of the polygraph examinations and the substance of Sinclair’s allegations in
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11 various public forums, including on WhiteHouse.com. (Dkt No. 1 at ¶¶ 23, 28.) The alleged

12 defamatory statements in this case are indisputably “germane to Plaintiff[s’] participation in the

13 controversy.” Lohrenz, 350 F.3d at 1279. This is precisely the sort of situation in which courts
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14 have found that plaintiffs, by their willing participation in matters of public controversy, have

15 “assumed the risk that the ensuing discourse might contain errors of fact - errors for which the

16 speakers, in the absence of a showing of actual malice, could not be held liable.” Pendleton, 156
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17 F.3d at 71; see also Lohrenz, 350 F.3d at 1281.

18

19
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20
5
See, e.g., Whitehouse.com Press release, Wash. Daybook, June 17, 2008 (“Whitehouse.com
21 holds a news conference to release the results of two professionally administered polygraph tests
administered to Larry Sinclair, who alleges to have engaged in illegal drug use and ‘homosexual
22 activities’ with 2008 presidential candidate Sen. Barack Obama, D Ill.”); Alex Pareen, Obama’s
gay lover can’t pass polygraph, available at http://gawker.com/360609/obamas-gaylover-cant-
23 pass-polygraph (“Larry Sinclair, Barack Obama’s alleged former gay sex partner, was paid
$10,000 by WhiteHouse.com to take a polygraph test, which he failed….”).
24
19
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 20 of 27

1 Moreover, federal courts in D.C., applying D.C. law, have ruled that corporate plaintiffs

2 are considered public figures as a matter of law in lawsuits against mass media defendants, like

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3 Sinclair, that involve “matters of legitimate public interest.” See Oao Alfa Bank v. Center for

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4 Public Integrity, 387 F.Supp.2d 20, 48 (D.D.C. 2005) (citing other cases). This means that

5 WhiteHouse.com or any other corporate Plaintiff in this case has to prove actual malice in order

6 to prevail. There is no reason to believe this rule would not apply to lawsuits involving citizen

7 media defendants, like Sinclair because the underlying rationale of Alfa Bank focuses on the

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8 characteristics of corporations, not on those of the defendant in the lawsuit

9 Since its decision in New York Times Co. v. Sullivan, the U.S. Supreme Court has

10 recognized that “erroneous statement is inevitable in free debate and ... it must be protected if the
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11 freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive.’” 376 U.S.

12 254, 271-72 (1964). To carve out an area of breathing space so that protected speech is not

13 discouraged, the Supreme Court requires public figure plaintiffs to establish that a false,
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14 defamatory statement was published with actual malice.6 New York Times, 376 U.S. at 279-80;

15 Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); see also Lohrenz, 350 F.3d at

16 1274. The actual malice standard is a constitutional requirement intended to encourage


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17 “uninhibited, robust, and wide-open” debate on public issues, New York Times, 376 U.S. at 270,.

18 “The standard of actual malice is a daunting one.” McFarlane v. Esquire Magazine, 74 F.3d

19 1296, 1308 (D.C. Cir. 1996). Actual malice is a subjective test focused solely on the defendant’s
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20

21
6
Plaintiffs’ duplicative false light, business disparagement, tortious interference with economic advantage and civil
22 conspiracy claims are barred by the same defenses. The United States Supreme Court has held that a plaintiff may
not avoid constitutional defenses to a defamation claim by re-styling that claim as one for invasion of privacy, false
light, or any other tort. See, e.g., New York Times, 376 U.S. at 269 (constitutional protection does not depend on the
23 label given to cause of action); Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988). Here, Plaintiffs’ assorted
claims are based on the same alleged facts as their defective defamation claim, specifically, the allegedly false
24 statements regarding Mr. Parisi in the Book and the Synopsis.
20
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 21 of 27

1 actual state of mind at the time of publication, and not an objective test focused on the

2 reasonableness of the defendant’s conduct.

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3 The actual malice standard requires a public-figure plaintiff to prove that the defendant

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4 published a false statement “with ‘knowledge that it was false or with reckless disregard of

5 whether it was false or not.’” Masson, 501 U.S. at 510 (quoting New York Times, 376 U.S. at

6 279-80). The term “[k]nowledge of falsity means simply that the defendant was actually aware

7 that the contested publication was false.” Woods v. Evansville Press, Co., Inc., 791 F.2d 480, 484

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8 (7th Cir. 1986). Similarly, the term “reckless disregard” for the truth means that the “defendant

9 in fact entertained serious doubts as to the truth of [the] publication.” St. Amant v. Thompson,

10 390 U.S. 727, 731 (1968); see also Tavoulareas v. Piro, 817 F.2d 762, 776 (D.C. Cir. 1987) (en
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11 banc) (defendant must have “come close to willfully blinding itself to the falsity of its

12 [statements]”). A defendant must have a “high degree of … awareness of [] probable falsity.”

13 Garrison v. Louisiana, 379 U.S. 64, 74 (1964). “The caselaw is clear that the plaintiff must
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14 establish that even in relying upon an otherwise questionable source the defendant actually

15 possessed subjective doubt.” Secord v. Cockburn, 747 F. Supp. 779, 794 (D.D.C. 1990) (plaintiff

16 cannot survive summary judgment merely by showing that some of defendant’s sources were
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17 convicted felons).

18 “[R]eckless conduct is not measured by whether a reasonably prudent man would have

19 published, or would have investigated before publishing.” St. Amant, 390 U.S. at 731. Even
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20 “highly unreasonable conduct constituting an extreme departure from the standards of

21 investigation and reporting ordinarily adhered to by responsible publishers” will not suffice to

22 establish actual malice. Harte-Hanks Comm’s, Inc. v. Connaughton, 491 U.S. 657, 658 (1989).

23 “[F]ailure to investigate does not itself establish bad faith.” St. Amant, 390 U.S. at 732.

24
21
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 22 of 27

1 As an additional safeguard, the First Amendment requires that plaintiffs prove actual

2 malice by “clear and convincing” evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-

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3 257 (1986). This standard of proof imposes a “heavy burden [on plaintiffs], far in excess of the

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4 preponderance sufficient for most civil litigation.” Eastwood v. National Enquirer, Inc., 123 F.3d

5 1249, 1252 (9th Cir. 1997).

6 “Moreover, because the actual malice inquiry is subjective – that is, concerned with the

7 defendant’s state of mind when [it] acted – the inference of actual malice must necessarily be

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8 drawn solely upon…the information that was available to and considered by the defendant prior

9 to publication.” McFarlane v. Sheridan Square Press, 91 F.3d 1501, 1508 (D.C. Cir. 1996)

10 (hereinafter “Sheridan Square Press”); see also Secord, 747 F. Supp. at 792 (“[I]t is hornbook
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11 libel law that post-publication events have no impact whatever on actual malice as it bears on

12 this lawsuit since the existence or non-existence of such malice must be determine as of the date

13 of publication”); Herbert v. Lando, 781 F.2d 298, 305-306 (2d Cir. 1986) (“It is self-evident that
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14 information acquired after the publication of defamatory material cannot be relevant to the

15 publisher’s state of mind of his alleged malice at the time of publication”).

16 In this case, Plaintiffs cannot prove by clear and convincing evidence that any of the
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17 statements in the Book they claim are defamatory were published by Sinclair with knowledge

18 that they were false or with serious doubts as to their truth. To the contrary, the statements at

19 issue were published by Sinclair under the absolute conviction that they were true or
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20 substantially true.

21 Leave to amend would be futile in this case since Plaintiffs cannot satisfy the standards of

22 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544

23 (2007), in providing the necessary factual details to support their conclusory allegations of actual

24
22
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 23 of 27

1 malice. “[T]he complaint’s factual allegations must produce an inference of liability strong

2 enough to nudge the plaintiff’s claims ‘across the line from conceivable to plausible.’” Nemet,

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3 591 F.3d at 255-56 (quoting Iqbal, 129 S. Ct. 1937). Even taking all of Plaintiffs’ inadmissible,

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4 attenuated evidence as true, Plaintiffs have failed to come forth with any evidence – much less

5 clear and convincing evidence – that Sinclair had the requisite mental state – that is, “acted with

6 knowledge that [the allegedly defamatory statements regarding Parisi and WhiteHouse.com in

7 the Book were] false or with reckless disregard as to whether [they were] false or not.” New York

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8 Times, 376 U.S. at 279-80.

9 Any actual malice inquiry also must take into account the relevant context. Sinclair’s

10 Book is a political book about the President of the United States. In this country, we have “‘a
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11 profound national commitment to the principle that debate on public issues should be

12 uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and

13 sometimes unpleasantly sharp attacks on government[,] public officials,’ and public figures.”
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14 CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 293 (4th Cir. 2008) (quoting New York

15 Times, 376 U.S. at 270). Moreover, whether for good or ill, political discourse in this country has

16 become increasingly exaggerated and vituperative. Heated rhetoric and accusations have become
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17 the coin of the realm, especially regarding presidents or presidential candidates.7 Thus, books

18 like Sinclair’s and strong reader reactions for or against a book or author fall within the expected

19 spectrum of political discourse in today’s world, and hardly raise an eyebrow.


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20

21
7
See, e.g., Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry, by John E. O’Neill and Jerome
22 Corsi; High Crimes and Misdemeanors: The Case Against Bill Clinton, by Ann Coulter; The Manchurian President:
Barack Obama’s Ties to Communists, Socialists and other Anti-American Extremists, by Aaron Klein; The Secret
Life of Bill Clinton, by Ambrose Evans-Pritchard; Culture of Corruption: Obama and His Team of Tax Cheats,
23 Crooks, and Cronies, by Michelle Malkin; The Prosecution of George W. Bush for Murder, by Vincent Bugliosi;
Stupid White Me: ...And Other Sorry Excuses for the State of the Nation!, by Michael Moore; Lies and the Lying
24 Liars that Tell Them, by Al Franken.
23
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 24 of 27

1
C. Plaintiffs Cannot Prove Damages, which Are Required As a
2 Matter of Law, to Make a Claim for Defamation.

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3 “In order to establish a prima facie case of defamation (whether denominated libel or

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4 slander), a plaintiff must show that defendant communicated to a third person a false statement

5 about plaintiff that tended to harm [the] plaintiff’s reputation in the eyes of the community or to

6 cause others to avoid plaintiff.” McLaughlin v. Rosanio, 331 N.J. Super. 303, 312 (App. Div.

7 2000). “Another component of a statement's defamatory nature - and thus an element of a prima

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8 facie case - is that [a] plaintiff must have been harmed by the alleged defamation.” Id. at 313.

9 In Sisler v. Gannett Co., Inc., 104 N.J. 256, 281 (1986), the Court, citing the decision in

10 Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), and noting
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11 the “inherently amorphous quantification of libel damages[,]” stated that a plaintiff seeking to

12 recover damages for personal injury or mental anguish in a defamation suit “should offer some

13 concrete proof that his reputation has been injured.” The Court offered that this could be
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14 accomplished with evidence that an “existing relationship has been seriously disrupted” or with

15 testimony from third parties that, from their perspective, the aggrieved person’s reputation has

16 been diminished. Sisler, 104 N.J. at 281. The Sisler Court, however, was dealing with an
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17 allegedly defamatory publication that involved a matter the Court described as “implicat[ing] a

18 legitimate public interest with an attendant risk of publicity[.]” Id. at 279. Similarly, in

19 McLaughlin, supra, the Court concluded that the plaintiff, a political candidate seeking to
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20 recover damages arising out of an allegedly defamatory radio commercial, a communications

21 medium that the Court characterized as akin to libel, must adduce proof that “third parties

22 lowered their estimation of the plaintiff and that he or she suffered emotional or pecuniary harm

23 as a result.” 331 N.J. Super. at 313.

24
24
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 25 of 27

1 In their Complaint, Plaintiffs allege as their damages that “[a]s a direct and proximate

2 result of the defamatory statements of the defendants, the WhiteHouse.com website was shut

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3 down in 2008.” (Dkt No. 1 at ¶48). However, Sinclair’s Book was published in 2009. Plaintiffs

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4 cannot base their damages for defamation on statements that were not even published until the

5 year after they shut down their website. That does not make sense, it is not plausible, and this

6 Complaint must be dismissed on that basis.

7 In sum, because Plaintiffs are and will be unable to meet the pleading requirements of

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8 Iqbal, Sinclair’s Motion should be granted and any request for leave to amend should be denied

9 as futile. None of the evidence Plaintiffs point to in any way suggests that Sinclair acted with

10 actual malice regarding the statements in the Book related to Plaintiffs, much less acted with
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11 knowledge of falsity or reckless disregard of the truth or falsity of those statements under New

12 York Times, 376 U.S. at 279-80. None of Plaintiffs’ so-called evidence is related to any of the

13 allegedly false statements about Parisi contained in the Book, and Plaintiffs claim for damages
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14 are not plausible.

15 III. Where Sinclair has no direct liability to Plaintiffs as a matter of law, there can be no
cause of action brought against him in the form of a Cross-claim by Barnes & Noble, Inc.
16 and Barnesandnoble.com, LLC.
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17 The Federal Rules of Civil Procedure under Rule 13(g) allows cross-claims. Here,

18 Barnes & Noble, Inc. and Barnesandnoble.com, LLC have filed a cross-claim against Sinclair

19 seeking contribution and indemnity if a judgment were entered against them. See Design for
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20 Bus. Interiors, Inc. v. Herson's, Inc., 659 F. Supp. 1103 (D.D.C. 1986), which cites the case of

21 American National Bank and Trust Co. of Chicago v. Bailey, 750 F.2d 577, 581 (7th Cir. 1984)

22 (Rule 13(g) cross-claim must either arise out of the same transaction or occurrence as the main

23 action, or be related to the property that was the subject of the main action). If this Court finds

24
25
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 26 of 27

1 that as a matter of law there is no cause of action by Plaintiffs against Sinclair, then it follows

2 that the Court must dismiss the Cross-claim by Barnes & Noble, Inc. and Barnesandnoble.com,

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3 LLC, as the claim would be moot since there is no transaction or occurrence by which either

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4 Barnes & Noble, Inc. and Barnesandnoble.com, LLC should be indemnified by Sinclair.

5 CONCLUSION

6 For all the reasons set forth herein, Defendant, Lawrence W. Sinclair, respectfully requests that

7 the Court enter an ORDER dismissing with prejudice the claims against him or entering

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8 summary judgment in his favor on those claims (thereby rendering Defendants, Barnes and

9 Noble, Inc. and Barnesandnoble.com, LLC’s Crossclaim moot), awarding Sinclair his costs, and

10 granting such other and further relief as the Court deems necessary and just under the
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11 circumstances.

12 Furthermore, Sinclair requests that if the Court finds that Plaintiffs have failed to state a

13 claim against him individually and/or the Court enters an Order dismissing said claims, or
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14 granting summary judgment in favor of Sinclair on such claims, then Sinclair asks that this

15 Court also dismiss the Claims and Cross-claims asserted against Defendant, Sinclair Publishing,

16 Inc. in this case on the ground that since no cause of action can be asserted against Sinclair,
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17 individually, no cause of action can be asserted against Sinclair Publishing, Inc., which was

18 solely owned and operated by Sinclair.

19 Respectfully submitted this 28th day of January 2011.


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20

21

22 /s/ Lawrence W. Sinclair


Lawrence W. Sinclair, Pro Se
Post Office Box 9222
23 Chattanooga, TN 37412

24 Telephone number (218)269-2274


26
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-1 Filed 01/26/11 Page 27 of 27

1 CERTIFICATE OF SERVICE

2 The undersigned certifies that on January 28, 2011 the forgoing Memorandum in Support of

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3 Defendant, Lawrence W. Sinclair’s Motion to Dismiss was filed electronically with the Clerk of

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4 the Court to be served by operation of the Court’s electronic filing system upon all parties listed

5 below. The undersigned will also serve counsel listed below via electronic mail.

7 Richard J Oparil; ROparil@pattonboggs.com

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Kevin M. Bell; kbell@pattonboggs.com
8 Patton Boggs LLP,
Attorneys for Plaintiffs
9
Steven J. Weber; Steven.weber@huschblackwell.com
10 R. Prescott Sifton, Jr.; scott.sifton@huschblackwell.com
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Husch Blackwell Sanders, LLP,
11 Attorneys for Defendant, Books-A-Million, Inc.

12 Stephen Smith; steve.smith@klgates.com;


Mathew Segal; matthew.segal@klgates.com,
13 Kari Vander Stoep; kari.vanderstoep@klgates.com
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John Longstreth; john.longstreth@klgates.com


14 K&L Gates LLP,
Attorneys for Defendant, Amazon.com, Inc.
15
Linda Steinman; lindasteinman@dwt.com
16 John Eastburg; roryeastburg@dwt.com
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Davis Wright Tremaine LLP,


17 Attorneys for Defendants, Barnes and Noble, Inc. and Barnesandnoble.com

18 JoAnne Zawitoski; jzawitoski@semmes.com


Christina Bolmarcich; cbolmarcich@semmes.com
19 Semmes, Bowen, & Semmes,
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Attorneys for Defendant, Jeffrey Rense


20
/s/ Lawrence W. Sinclair
21

22

23

24
27
Sinclair’s Memorandum in Support of Motion to Dismiss
Case 1:10-cv-00897-RJL Document 94-2 Filed 01/26/11 Page 1 of 11

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Case 1:10-cv-00897-RJL Document 94-5 Filed 01/26/11 Page 1 of 2

THE UNITED STATES DISTRICT COURT


1 FOR THE DISTRICT OF COLUMBIA
2

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3 DANIEL PARISI, et al., )

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)
4
Plaintiffs, )
5
)
v. )
6 ) Case No.: 1:10-cv-00897-RJL
LAWRENCE W. SINCLAIR, et al., )
7 )

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Defendants. )
8 )

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11
[PROPOSED] ORDER
12

13 Upon due consideration of the motion to dismiss or in the alternative summary judgment
14
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filed by defendant Lawrence W. Sinclair, pro se, the memorandum in support thereof, and any
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opposition thereto, it is hereby ORDERED that Lawrence W. Sinclair’s motion is GRANTED
16
and
17
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1. Complaint of Plaintiffs Daniel Parisi, Whitehouse.com Inc., Whitehouse Network


18
LLC and Whitehouse Communications Inc. is hereby DISMISSED WITH PREJUDICE;
19
2. Cross-Claims of Cross-Claim Plaintiffs Barnes & Noble, Inc. and
20
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Barnesandnoble.com, LLC, is hereby DISMISSED AS MOOT;


21

22 3. Complaint of Plaintiffs Daniel Parisi, Whitehouse.com, Inc.; WhiteHouse

23 Networks, LLC and WhiteHouse Communications Inc. against Defendant Sinclair Publishing,

24 Inc. is hereby DISMISSED WITH PREJUDICE; and

25

Page 1 of 2
Case 1:10-cv-00897-RJL Document 94-5 Filed 01/26/11 Page 2 of 2

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3 4. Cross-Claims of Cross-Claim Plaintiffs Barnes & Noble, Inc. and

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4 Barnesandnoble.com LLC against Cross-Claim Defendant Sinclair Publishing, Inc. are herby

5 DISMISSED AS MOOT.

7 SO ORDERED.

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8

9
Dated: ___________________, 2011.
10 _________________________________
United States District Judge
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11 Richard J. Leon

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