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)
DANIEL PARISI, WHITEHOUSE.COM INC., )
WHITEHOUSE NETWORK LLC AND )
WHITEHOUSE COMMUNICATIONS INC., )
)
Plaintiffs, )
) Case No.: 1:10-cv-00897 (RJL)
v. )
)
LAWRENCE W. SINCLAIR A/K/A “LARRY
SINCLAIR”, JEFFREY RENSE, BARNES & )
NOBLE, INC., BARNESANDNOBLE.COM )
LLC, AMAZON.COM, INC., BOOKS-A- )
MILLION, INC. and SINCLAIR PUBLISHING, )
INC., )
)
Defendants. )
dismiss the complaint or in the alternative for summary judgment (“Sinclair’s Motion”).
Sinclair’s Motion principally seeks dismissal of Plaintiff Parisi’s libel and related claims
against Sinclair and Sinclair Publishing, Inc. Barnes & Noble, Inc. and barnesandnoble.com
llc (collectively “Barnes & Noble”) support Sinclair’s efforts to seek early resolution of
Plaintiffs’ claims. However, Sinclair’s motion also requests that, if the Court dismisses
Plaintiffs’ claims against Sinclair and/or Sinclair Publishing, that it also dismiss Barnes &
Noble’s cross-claims for indemnity and contribution against Sinclair and Sinclair Publishing,
Inc. as moot. Barnes & Noble submits this memorandum for the limited purpose of opposing
FACTUAL BACKGROUND
The Plaintiffs in this action contend they were defamed by the book Barack Obama &
Larry Sinclair: Cocaine, Sex, Lies & Murder? (the “Book”). In addition to suing the author
Sinclair and the publisher Sinclair Publishing, Inc. (collectively, the “Sinclair Defendants”),
Plaintiffs also have named as defendants several booksellers, including Barnes & Noble.
Plaintiffs have sued Barnes & Noble under a “distribution plus” theory for both distributing the
Book and “the affirmative act of publi[shing]” certain allegedly false statements on
barnesandnoble.com on its display page for the Book under the headings “From the Publisher”
and “Synopsis.” (Cplt ¶ 39.) As he has confirmed, Sinclair wrote the contested website copy.
(See Affidavit of Lawrence W. Sinclair, sworn to Nov. 15, 2010, ¶ 2 [Doc. No. 83].)
By letter dated June 8, 2010, Sinclair and Sinclair Publishing, Inc. agreed to indemnify
Barnes & Noble with respect to the Book and this action (the “June 8, 2010 Indemnity”). The
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under this indemnity within 60 days of receipt of each bill for legal
fees or costs, or of any court order or other applicable document.
See June 8, 2010 Indemnity, Barnes & Noble Answer, Doc. No. 42, Ex. 2.
Barnes & Noble filed its answer on August 24, 2010, and asserted cross-claims for
indemnification and contribution against the Sinclair Defendants under both the June 8, 2010
Indemnity, and statutory and common law. [Doc. No. 42, ¶¶ 122-155.]
On January 28, 2011, Sinclair filed the instant motion to dismiss or, in the alternative, for
summary judgment, seeking dismissal of all claims that Plaintiffs have asserted against Sinclair
in his role as the author and publisher of the Book. Sinclair argues that the alleged claims
against him are not plausible because the allegedly defamatory statements in the Book are
substantively true, Plaintiff cannot prove that Sinclair acted with actual malice, and Plaintiff
cannot prove required damages. In his motion, Sinclair further requested that, should the Court
dismiss the claims against the Sinclair Defendants, the Court also dismiss Barnes & Noble’s
cross-claims for indemnification and contribution as moot. [See Doc. No. 94-1 at 25-26.]
Sinclair’s motion does not seek dismissal of the claims that Plaintiffs have asserted
against Barnes & Noble related to either distribution of the Book or the copy posted on Barnes &
Noble’s website.
ARGUMENT
Contrary to Sinclair’s contention, Barnes & Noble’s potential claims for indemnity and
contribution against him will not be moot should the Court decide to dismiss the Plaintiff’s
claims against the Sinclair Defendants. As such, Barnes & Noble respectfully requests that
Under the terms of the June 8, 2010 Indemnity, Barnes & Noble has a broad right to seek
indemnification from both Sinclair and Sinclair Publishing LLC with respect to any and all
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“causes of action, liabilities, losses, damages, penalties, assessments, judgments, awards or costs,
including reasonable attorneys' fees and costs, and including any amounts paid by Barnes &
Noble in a settlement” of the above-captioned action. It is plain from the face of the June 8,
2010 Indemnity that Barnes & Noble’s rights are not somehow limited by or to the claims that
Plaintiffs have asserted against the Sinclair Defendants. For example, Barnes & Noble’s right to
seek indemnity with respect to its “attorneys’ fees and costs” incurred in this action would not be
extinguished simply because the Plaintiffs’ claims against Sinclair had been dismissed.
Similarly, while Barnes & Noble believes it should ultimately prevail in this action, unless the
Court were to rule for all purposes in the case that both the Book and the contested website copy
are true and accordingly cannot form a basis for any of the five claims pled, there remains the
possibility that Barnes & Noble will be held liable in the case. In such circumstances, Barnes &
Noble would then have a cause of action for indemnification and contribution against Sinclair
under the June 8, 2010 Indemnity and statutory and common law with respect to any judgment
entered against it, regardless of whether the claims against Sinclair himself had been dismissed.
See, e.g., Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw &
Folley,71 N.Y.2d 21, 23-24, 517 N.E.2d 1360, 136 (N.Y. 1987) (“[T]wo or more persons who
are subject to liability for damages for the same personal injury, injury to property or wrongful
death, may claim contribution among them whether or not an action has been brought or a
judgment has been rendered against the person from whom contribution is sought.”); New York
Practice Commentaries C1401:3 (McKinney 1997) (“A tortfeasor’s liability for contribution may
flow from either of two sources: breach of a duty to the plaintiff [the injured party] or to the
Sinclair also argues that, if his motion is granted Barnes & Noble’s cross-claims must be
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dismissed because they no longer comply with Rule 13(g) of the Federal Rules of Civil
Procedure, which permits cross-claims “aris[ing] out of the transaction or occurrence that is the
subject matter of the original action.” This argument is not persuasive. While Rule 13(g)
governs the circumstances under which a cross-claim may be asserted, it does not mandate the
dismissal of Barnes & Noble’s properly asserted cross-claim should plaintiffs’ claims be
dismissed against Sinclair. See, e.g., Shaps v. D.F.D.S., 1985 WL 269, at *3 (S.D.N.Y. 1985)
(“A cross-claim, once properly made, does not cease to be proper because the defendant to
whom they were addressed ceased to be a co-defendant. The cross-claim remains subject to this
court's jurisdiction.”); Slotkin v. Brookdale Hospital Center, 377 F. Supp. 275 (SD N.Y.1974)
(finding, where a stipulation of dismissal had been signed by plaintiff and one defendant against
whom a cross-claim had been made by another co-defendant, that the dismissal of the main
action did not operate to dismiss the cross-claim asserted by the co-defendant).
In short, the resolution of Sinclair’s Motion will not and cannot dispose of the claims for
indemnification and contribution that Barnes & Noble may have against the Sinclair Defendants.
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CONCLUSION
For all the reasons set forth herein, Barnes & Noble, Inc. and barnesandnoble.com llc
respectfully requests that the Court deny Sinclair’s request that their cross-claims be dismissed as
moot in the event that Sinclair’s motion to dismiss or in the alternative for summary judgment is
granted; and (ii) grant any additional relief, including attorneys’ fees and costs, which this Court
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CERTIFICATE OF SERVICE
I hereby certify that, on the date below, I caused the foregoing MEMORANDUM OF
DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT to be served via ECF
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[PROPOSED] ORDER
Upon due consideration of the motion to dismiss or in the alternative for summary
judgment, filed by defendant Lawrence W. Sinclair, dated January 28, 2011, and the opposition
thereto filed by co-defendants Barnes & Noble, Inc. and barnesandnoble.com LLC (collectively,
ORDERED that defendant Lawrence W. Sinclair’s motion to dismiss Barnes & Noble’s
SO ORDERED.
_________________________________
United States District Judge
Richard J. Leon