mardi 10 janvier 2017

Homophobic Mississippi blogger Douglas Handshoe loses again, this time in Mississippi state court: JUDGMENT OF NOVA SCOTIA COURT NOT REPUGNANT, says judge

The owners of Trout Point Lodge, Vaughn Perret and Charles Leary, have announced their trial court victory over Mississippi blogger Douglas K. Handshoe in Hancock County Circuit Court in their effort to enforce a momentous Canadian copyright infringement judgment.

Handshoe had initiated a barrage of litigation and motions to try to prevent this eventuality--including throwing his company Slabbed New Media into Chapter 11 bankruptcy--weaving conspiracy theories and arguing that Canadian law and court decisions were repugnant to Mississippi law. Judge Chris Schmidt found otherwise in an Order issued on January 5, 2017. 

The judge discounted Handshoe's argument that the Nova Scotia Supreme Court had no personal jurisdiction over him and detailed the blogger's numerous appearances and motions in the Canadian action in 2013. Judge Schmidt also embraced comity with Canada, and dismissed Handshoe's arguments that the 2010 SPEECH Act applied to this case. "The judgment of the Nova Scotia Supreme Court is not repugnant to Mississippi Law," stated the Order. 

Handshoe has failed to appreciate the difference between his "free speech" rights--which in Handshoe's universe only he is entitled to--and the protection of intellectual property rights, a mistake that has proved fatal to his unceasing campaign to injure Leary, Perret, and their business Trout Point Lodge. Handshoe was represented by attorney G. Gerald Cruthird. 

More to come . . . 

vendredi 18 mars 2016

BREAKING: Bankruptcy Blues--Another federal judge takes sua sponte action regarding blogger Douglas Handshoe

It didn't take long for the U.S. Bankruptcy Court sitting in Gulfport, Mississippi to set a date for a motion to convert or dismiss Slabbed New Media's bankruptcy--Judge Katharine Samson acted on
her own within a matter of hours after the U.S. Trustee filed to dismiss the case. 

Mississippi blogger Douglas Handshoe put his sole-proprietor shell company Slabbed New Media, LLC into voluntary bankruptcy in June, 2015, immediately after Louisiana's 5th Circuit Court of Appeal turned down his request to reconsider its decision denying Handshoe's anti-SLAPP motion in the defamation lawsuit against him by process server Chris Yount. SLAPP stands for "strategic lawsuit against public participation." Bankruptcy judge Samson just this week sua sponte set a hearing on the U.S. Trustee's motion to convert the preposterous Slabbed bankruptcy into an involuntary, Chapter 7 bankruptcy, or to dismiss the case altogether. Neither option looks good for Handshoe.

Within the past few months, Judge Halil Ozerden and Judge Keith Starrett have also sua sponte taken action in Handshoe lawsuits, a sign that perhaps the patience for the litigious Handshoe in the Southern District of Mississippi is wearing thin. Judge Starrett dismissed Handshoe's case in its entirety. Judge Ozerden is considering two motions to dismiss filed by the National Geographic Society and the parent company of the Toronto Star newspaper--two of the many media outlets Handshoe has sued for "conspiracy" against him. Blogger Handshoe is suing the press for "conspiring" with a Canadian wilderness lodge to take away his "free speech rights"-- hypocrisy anyone? What happened to journalistic freedom, Doug? Freedom for you but no one else . . .
Judge Samson should have good reason to scrutinize what Handshoe is attempting to do using her court. As the U.S. Trustee poins out in its motion:
This small business case has been pending for almost nine months. On January 11, 2016, the Court entered its Order extending the time for the Debtor to file a disclosure statement and plan. DKT. #58. The January 11, 2016, Order provided the Debtor an additional sixty days, or until March 11, 2016, to file a disclosure statement and plan. Id. But as of the filing of this motion, the Debtor has not filed a disclosure statement or a confirmable plan of reorganization.
So Handshoe missed the deadline ordered by Judge Samson, even after she was nice enough to give him an extra 60 days to get his "reorganization" of Slabbed together. Perhaps the $11,000 Handshoe "loaned" to Slabbed to pay to bankruptcy lawyer Craig Geno has run out? Now why would you loan money to your bankrupt company that earns a few hundred dollars every few months?

In any event, though Handshoe did not appear on the initial listing of purported creditors, in October, 2015, Handshoe filed papers saying Slabbed owed him $500,000! Huh?!?!

"There appears to be no assets for the Debtor to protect through this bankruptcy proceeding," says the U.S. Trustee in its March 14, 2016, filing. The Trustee's motion has detailed exactly what kind of "business" Handshoe is running:
According to the Debtor’s most recently-filed monthly operating report (“MOR”) for December 2015, the Debtor reported $165 in total income and $136 in total expenses for December 2015. DKT. #60. According to the Debtor’s November 2015 MOR, the Debtor reported $100 in total income and $506 in total expenses for November 2015. DKT. #57.
According to the Debtor’s October 2015 MOR, the Debtor reported $115 in total income and $137 in total expenses for October 2015. DKT. #53.
Wow! How many tens of thousands of taxpayer dollars do you think is being spent on this "bankruptcy" of his little LLC put in motion by Mr. Handshoe? And for what purpose? Abuse of the court's process????

One thing Handshoe got out of filing for Chapter 11 protection is that Chris Yount's lawsuit against him and Slabbed is, at least for the time being, automatically stayed. Sound like bad faith?

So, Judge Samson will have a lot to think about for that hearing she set for April 28 . . . Should be a good show. It's scheduled for 1:30 pm and everyone should attend. Will Craig Geno be there?

jeudi 28 janvier 2016

BREAKING: 2nd federal judge acts sua sponte: Judge Ozerden dismisses homophobic Mississippi blogger Douglas Handshoe's court filing

U.S. District Court Judge Halil "Sul" Ozerden, who is presiding over the conspiracy lawsuit filed by Mississippi blogger Douglas Handshoe against the National Geographic Society, the Toronto Star newspaper, and other defendants, issued an Order late yesterday striking Handshoe's latest court filing to amend his legal complaint.
THIS MATTER COMES BEFORE THE COURT sua sponte for consideration of the Second Amended Complaint for Damages, Declaratory and Injunctive Relief [22] filed by Plaintiff Douglas Handshoe on January 22, 2016, without Plaintiff first obtaining leave of Court or opposing parties’ written consent. For the reasons that follow, the Court will strike this unauthorized pleading.
Just before Judge Ozerden issued his order, lawyers for the Toronto Star had filed a motion seeking to strike the illegal Second Amended Complaint. They pointed out that Handshoe has already once been warned by a federal judge about precisely this practice of illegal amendments:
Plaintiff here should be familiar with the process of amending pleadings as he was recently admonished by a court for similar practices; see Handshoe v. Abel, No. 1;14-cv-159-KS-MTP, 2016 WL 110519, slip op. at *2 (S.D. Miss. Jan. 8, 2016) (striking Plaintiff’s amendments to add new claims and parties and warning “that the proper avenue for adding such claims and parties is through a motion for the Court’s leave or with opposing party’s written consent pursuant to Federal Rule of Civil Procedure 15(a)(2).”)
Indeed, within less than a month, both Judge Ozerden and Judge Starrett in the now-dismissed Handshoe v Abel case have acted on their own accord, that is "sua sponte," to prevent Handshoe from making illegal amendments to his various lawsuits. Judge Ozerden did not even reference to Tronto Star's motion in his decision. Legal observers say that district court judges acting sua sponte is very rate, and that this could indicate a pronounced shift in the way Handshoe is being viewed within the U.S. District Court for the Southern District of Mississippi.

That Handshoe, after being "warned" by one federal judge in the same court against amending without permission, Handshoe would two weeks later do exactly the same thing, could greatly favor Defendant Chris Yount's case that Handshoe should be considered a vexatious litigant. How long the district court judges--Kaith Starrett, Chief Judge Louis Guirola, and Judge Ozerden--will put up with Handshoe's conduct without taking action to sanction him is an open question. He currently has matters pending before all three

Yount in the Abel case is seeking sanctions against Handshoe, and the response from the inveterate blogger is due tomorrow. An exhibit filed by Yount shows that Handshoe has filed court papers against dozens of persons, including National Geographic, in the past three years.

Indeed, the table of litigation exhibit filed by Yount speaks for itself. When will the Mississippi courts stop being so accommodating to Douglas Handshoe?

Douglas K. Handshoe
Douglas K. Handshoe
Douglas K. Handshoe

mercredi 13 janvier 2016

Can a blogger bankrupt his blog, claim indemnity, stay the lawsuit against him, and get paid $500,000 for writing defamatory blog posts and infringing copyright? You decide . . . or Judge Katharine Samson will . . .

On January 11, 2016, U.S. Bankruptcy Judge Katharine M. Samson in Gulfport, Mississippi, denied Slabbed New Media, LLC's motion to extend "exclusivity" in its Chapter 11 case, but granted the sole-proprietorship of blogger Douglas Handshoe more time to file a plan of "reorganization."
"denied as to an extension of exclusivity"

He's going to need it

This may be the first step in the bankruptcy court scrutinizing this most bizarre and tactical of bankruptcy filings done by homophobic blogger Douglas Handshoe. Though Handshoe is the sole member of the company, and though he is the publisher and nearly sole author of his blog, Handshoe now claims that because he is being or has been sued, his company is bankrupt, and he, personally, has been damaged, with the bankruptcy as proof. In fact, he has used the LLC's bankruptcy he initiated as evidence of personal damages in court briefs filed in some of his numerous lawsuits against those going after him in various courts for defamation.

The company has, for the past few years, made less than $1000 in annual "profits," which all went to Handshoe. According to the bankruptcy entries, it has no means of existence besides "contributions" from readers. It sells no advertising. "Slabbed New Media" has no sustainable way to make money, because it is essentially Mr. Handshoe's personal hobby (when he's not filing new legal actions). In its last financial report, Slabbed lost over $400 for the month of November, 2015, with an income of $100. I wonder how much the federal courts and the Department of Justice are spending on Slabbed's "bankruptcy"?

As is well known, Handshoe has a $180,000 copyright infringement judgmeent against him; is currently being sued for defamation in two Louisiana courts; and owes hefty attorney's fee awards in both those cases; all personally. In one of those cases, court records show he's used the automatic stay procedures of federal bankruptcy law to stop Chris Yount's lawsuit against him (b/c it also names Slabbed), while he went on to pursue Yount in Mississippi federal court. Fortunately for Mr. Yount, that lawsuit was just thrown out by the federal court. So, was reason number one for putting Slabbed into bankruptcy to stall out the Yount lawsuit?

That's not all. Of course, when he put Slabbed into bankruptcy Handshoe did not appear on the list of creditors filed with the court. Perhaps that would have raised some eyebrows at the U.S. Trustee's Office. In fact, all the creditors he did list in that mandatory filing made under penalty of perjury never filed (probably because really Handshoe owes them money, not Slabbed), except for one teeny tiny one.

So, lo and behold, this past October only two people filed papers as creditors of Slabbed: a guy who Handshoe uses as a process server, with a claim of $80.00; and Handshoe, with a claim of $500,000.00!

Handshoe says there is an indemnity agreement between Slabbed and him personally. Huh?

Bankruptcy Court document claiming Handshoe is owed $500,000 by Slabbed
So, Handshoe's logic seemingly goes like this: When he attracts liability on his blog by infringing others' copyright or publishing defamatory material, it's really the company that's at fault because he's merely acting as an official of the company. In addition, he must be indemnified against those legal judgments against him personally by the company, 'cause he was just doing his job. So, he's "loaned" Slabbed over $11,000 so it could hire a bankruptcy lawyer in Jackson, and declare bankruptcy. In yet, he's also given Slabbed a $48,000 judgment debt owed to him personally, which he previously also transferred to his lawyer Bobby Truitt, where it's enrolled in three Louisiana court cases by Truitt. So he's owed $500,000, but in spite of that, he's given Slabbed $48,000 that at the same time he's given to someone else, and he's loaned the sole-proprietorship that make a few hundred dollars a year in profit $11k of his own money as well. Wow, you might need a "forensic accountant" like Handshoe to figure that one out.

As noted by the National Geographic Society in its brief on dismissal of the lawsuit against it filed by Handshoe, he's getting confused, to be Slabbed or not to be Slabbed?
 to establish standing to bring the claims he has asserted against NGS, Plaintiff would need to plausibly allege both (1) a concrete injury in fact that is fairly traceable to the actions of the defendant and (2) that he is asserting his own legal rights and interests, not the legal rights or interests of third parties. See, e.g., United States v. Johnson, 632 F.3d 912, 919 (5th Cir. 2011); Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015). Plaintiff has not alleged – and is foreclosed as a matter of law from alleging – that he meets either requirement, for his own allegations conclusively demonstrate that (1) he has not suffered an injury that is fairly traceable to any act of NGS, and (2) he is impermissibly seeking to prosecute claims that – if they were viable at all – belong to Slabbed.
 Plaintiff cannot manufacture standing by purporting to bring this action “in his individual capacity and as publisher of Slabbed New Media, LLC.” Am. Compl. at 1. This conclusory allegation is directly contradicted by the allegations in the Amended Complaint noted above that deny any personal involvement of Plaintiff in these events. It is well settled that where a complaint’s allegations are contradicted by facts pled in the complaint or its exhibits, the court is under no obligation to accept the contradicted allegations as true. See, e.g., United States ex rel Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004); Simmons v. Peavy- Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940). Nor can Plaintiff bring a claim on behalf of Slabbed, because it is a company with a separate and distinct legal interest from Plaintiff, and “as a fictional legal person can only be represented by licensed counsel.” In re K. M. A., Inc., 652 F.2d 398, 399 (5th Cir. 1981).

Also, there's an interesting part of bankruptcy law that one hopes Judge Samson might consider in looking at the mess Handshoe has made in her court. As explained in "Intentional Torts & Bankruptcy":
Section 523 of the Bankruptcy Code  sets forth exceptions for discharge which "strikes at the very heart of an individual debtor's fresh start."  Recent attention has focused particularly on Section 523(a)(6) of the Code, which limits discharge for debt "for willful and malicious injury by the debtor to another entity or to the property of another entity." Simply stated, Section 523(a)(6) attempts to incorporate intentional tort principles into bankruptcy law, thereby excepting from discharge any debts the petitioner incurred as a result of their intentional wrongdoings.
In addition, bankruptcy courts have the duty to scrutinize things like "indemnification agreements" under the same part of the Code:
 Dischargeability is determined by the substance of the liability, not the form, and inquiry must be made into the true and essential nature of the debt. Pepper v. Litton, 308 U.S. 295, 305-306, 60 S.Ct. 238, 244-245, 84 L.Ed. 281 (1939); Brown v. Felsen, 442 U.S. 127, 139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979); Pauley v. Spong (In re Spong), 661 F.2d 6, 9 (2d Cir.1981). A debt that originates from the debtor's fraud should not be discharged simply because the debtor has entered into a settlement or indemnification agreement, and the debt now arises from a contract rather than a tort. See Greenberg v. Schools, 21 B.R. 1011 (S.D.Fla.1982), aff'd. 711 F.2d 152 (11th Cir.1983); Fireman's Fund Ins. Co. v. Covino (In re Covino), 12 B.R. 876 (Bankr.M.D.Fla.1981).
How will Judge Samson deal with these issues? Stay tuned . . .

Court orders deadline for homophobic Mississippi blogger to answer sanctions motion for vexatious litigation

The U.S. District Court for the Southern District of Mississipp immediately responded to a motion from Handshoe's former litigation opponent, process server Chris Yount. Within one day, Judge Keith Starrett has set a deadline by which Handshoe must answer Yount's request for sanctions against Handshoe, including possibly enjoining him from filing more lawsuits. The Mississippi blogger's case against Yount and Daniel Abel was thrown out in its entirety last week by the judge.

Yount is also asking for return of the money he had to earier pay Handshoe, reimursing him for service costs.
As an exhibit, Yount included an email he received from Handshoe on the same day the homophobic blogger entered a default against his co-defendant Abel. The default move would ultimately cause Judge Starrett to sua sponte issue orders dismissing allegations, and demanding that Handshoe show cause and amend his lawsuit so that it actually stated a proper claim. Handshoe failed on both. The email shows Handshoe threatening to sue Yount's minor son if Yount did not immediately drop his defamation lawsuit against Handshoe in Louisiana. Handshoe already owes Yount substantial attorney's fees awarded by a decision of the Louisiana Fifth Circuit Court of Appeal last year.

"I will be moving to incude your son . . . as a defendant in the federal court matter," Handshoe wrote to Yount on December 11, 2015, "If you do not move to dismiss the 24th JDC case by close of business Monday, I will be filing to amend this action to include" Yount's son. We will see what the federal judge makes of such a threat, which Handshoe characterized as a "settlement" offer. Suing someone's minor child unless they drop their valid lawsuit against you doesn't look like good faith to  legal observers.

Yount also filed a table he compiled of all the litigation Handshoe has started over the past couple of year, including suing the National Geographic Society for conspiracy, and earlier trying to get an injunction from the Mississippi federal court against the chief judge of New Orleans Civil District Court so that Handshoe would not have to answer discovery requests!  That table, filed as "Exhibit B" can be viewed here and is quite extraordinary.

Handshoe has sued some parties multiple times, often with seemingly overlapping claimsof conspiracy and "abuse of process" as well as misrepresentation under the Digital Millenium Copyright Act. This includes gay couple Charles Leary and Vaughn Perret, who have judgments against Handshoe from Nova Scotia Supreme Court. Handshoe continues to publish homophobic comments on his blog. He had stated on his blog and in court papers that a drawing by Yount's son  showed "a young child being sodomized by a line of robots." This resulted in Yount suing him for defamation (that's not what the drawing depicted). Handshoe, in turn, sued Yount in the case that was just dismissed by Judge Starrett.

Yount also points out in his brief that Handshoe has allegedly diobeyed rules regarding compulsory counterclaims precisely designed so the amount of lawsuits is not multiplied.

Handshoe has until January 29, 2016, to respond. In his final decision in this case, Judge Starrett found Handshoe went beyond the scope of his order, and also misrepresented facts to the court. It looks like Handshoe will have a busy January! Tick tock, tick tock . . . .

samedi 9 janvier 2016

A disobedient Miss. homophobe: Douglas Handshoe snubs his nose at federal judge's order; case dismissed

Three weeks ago, on his own account, sua sponte, U.S. District Court Judge Keith Starrett had ordered Mississippi accountant and inveterate blogger Douglas Handshoe to show cause why his "abuse of process" claim against a Louisiana process server should not be thrown out, and also gave him a final chance to amend his lawsuit to properly allege a claim of misrepresentation under the Digital Millenium Copyright Act (DMCA) against the process server, Chris Yount, and Louisiana civil rights attorney Daniel Abel.

Handshoe failed miserably at both, and more than raised the ire of the court. On January 8, 2016, within a day of Handshoe making his latest, rambling & incoherent filings in the case, the judge not only dismissed all claims, but gave extensive reasons. Legal observers say a federal judge acting on his own order to dismiss claims with prejudice is highly unusual. It's even more unusual, perhaps unprecedented, for a federal judge to respond in just one day to dismiss a plaintiff's amended complaint, even before the defendants had a chance to respond. But that's just how great a legal wizard Handshoe is.

Handshoe has recently launched a torrent of litigation in the U.S. District Court for the Southern District of Mississippi, including suing the National Geographic Society for conspiracy, and suing the Toronto Star newspaper twice, once for defamation and once for conspiracy. In this Yount case, he sued even more people.

Judge Starrett was obviously less than enchanted with Handshoe's filings entered on January 7, where the blogger disobeyed the court's orders, and also clearly misrepresented facts in signed or sworn court documents. This is not dissimilar from Handshoe's appearances in Nova Scotia Supreme Court, where Justice Kevin Coady found: "In fact it is not an overstatement to say that Mr. Handshoe “snubs his nose” at all judicial officers and institutions of Nova Scotia."

Handshoe has for years accused his legal opponents of perjury as part of a purported grand international conspiracy by a "band of gay men" involving money laundering, a 12-room Nova Scotia wilderness resort, a copyrighted drawing of purportedly sodomizing robots, and a former Louisiana politician. Handshoe's multiplicitous litigation tactics have started to backfire, and the consequences could be dire for Handshoe, who supposedly runs an accounting practice, but appears to do little more than concoct Internet diatribes, including publishing adjudicated homophobic commentary about his legal foes.

In his reasons, Judge Starrett notes that 3 weeks earlier he had given Handshoe a last chance to fix his hapless lawsuit in one specific way: to properly plead DMCA misrepresentation, which is a federal issue. Instead, Handshoe disobeyed the judge "by adding claims, parties, and superfluous facts to his Amended Complaint." The court thus threw out all of his unauthorized amendments, which had included naming Chris Yount's minor son as a defendant, as well as the owners of Trout Point Lodge of Nova Scotia, Vaughn Perret and Charles Leary, who are currently trying to enforce a $180,000 copyright infringement judgment from Nova Scotia Supreme Court against Handshoe in Mississippi. Handshoe used his favorite legal device, "conspiracy," in his latest version of the lawsuit, which was a bald attemp to falsely manipulate the amount of damages he was claiming to keep the case from being tossed out by the court.

Next Judge Starrett addressed Handshoe's response to the "show cause order" regarding the federal court's ability to take jurisdiction over the purported claim of "abuse of process" by Yount.  Federal courts only have jurisdiction in many state law claims if the amount of damages is high enough. "In Plaintiff’s sworn Affidavit," wrote Judge Starrett, "he represented that his claims against Abel, who is jointly and severally liable for the same claims against Yount, entitled him to a damages award amounting to $75,000, which does not exceed jurisdictional amount required for diversity jurisdiction." So, what did Handshoe do? He filed a nearly incomprehensible brief, and no evidence or affidavit, and suddenly changed the amount he was claiming to $113,802. This was a stupid move. (He did a similar thing a couple of years earlier with Chief Judge Louis Guirola, see below).

Federal judges don't like being toyed with, don't like being lied to, and don't like frivolous litigation. Handshoe conveniently upping his purported damages from a few weeks earlier when he idiotically did not claim the right amount in a sworn affidavit was too much for the court. "His failure was due to a misreading of the law that, he argues, should be excused because of his status as a pro se litigant." Boo hoo, poor Doug Handshoe. For once in Handshoe's legal career, the judge didn't buy his BS.

Those pesky affidavits.

In swearing to $75,000 in damage Handshoe "represented by implication that this amount was calculated based on the total amount of damages which he incurred and to which he was entitled under law." So, either Handshoe lied to the court the first time, in the affidavit, or he was lying to the judge now. Handshoe thought he could bluster and bullshit his way through to victory, but no. "Plaintiff’s argument now amounts to an admission that he previously made false representations concerning his damages to the Court and that, in doing so, willingly forewent an additional potential award of about $40,000 from Abel in default judgment." Had the judge followed that line, Handshoe could have been found to be committing perjury for swearing a false affidavit. But the judge clearly wanted to dispose of Mr. Handshoe's case forever, and so he chose a different path. "The Court will not accept this argument. The Court will take Plaintiff’s signed and sworn Affidavit [75-1] as true, and find that the damages claimed in this action amount to $75,000. As such, the jurisdictional amount required for diversity jurisdiction under 28 U.S.C. § 1332(a) is not met, and Plaintiff’s claim of abuse of process must be dismissed without prejudice for want of subject matter jurisdiction." (Of course, Judge Starrett could not dismiss "with prejudice" because he didn't have jurisdiction over the issue).

So, no more "abuse of process."

Maybe the "fabled Slabbed legal team" about which Handshoe has written so much needs to go back to the drawing board. Stop filing new lawsuits as a litigation tactic might be a good place to start. "Abuse of process" anyone?

Next, Judge Starrett turned to the DMCA issue. This has to do with copyright notices sent to web hosts regarding material being published on the Internet that allegedly infringes copyright. The judge succinctly summarized: "A person is liable under 17 U.S.C. § 512(f) if he “knowingly materially misrepresents under this section . . . that material or activity is infringing.”" Handshoe claimed that--as part of a massive conspiracy-- attorney Abel and his client Yount made knowing misrepresentations in a DMCA notice sent to Handshoe's web host about Handshoe publishing a drawing authored by Yount's minor child. Yount had served Handshoe with legal process in several of the lawsuits against him (yes, Mr. Handshoe frequently get sued, but never stops defaming), and Handshoe was getting tired of it, so he went into the contents of the Yount divorce court file in Louisiana, from whence he got the drawing, and published it on his site along with innuendo about sodomy that was never a topic of the court case itself.

The full background of Handshoe's use of the pornographic drawing is given in a decision of the Louisiana Fifth Circuit Court of Appeal, discussed here.

In any event, the first time around, Handshoe had simply claimed that no copyright exists in a child's drawing, and therefore the DMCA notice had involved misrepresentation. Judge Starrett found at that time that the self-proclaimed "premiere legal affairs blogger of the Gulf South," Handshoe demonstrated "a plain misunderstanding of copyright law" and that the child did have valid copyright in the drawing. "In his new amendments relating to this claim," summarized Judge Starrett, "Plaintiff contends that he had a right to the image in controversy based upon it appearing in an unsealed and public court document. As such, he argues that his use of the image was not infringing, and Yount and Abel’s contention that it amounted to a misrepresentation under § 512(f)." Wow, so when a copyrighted work enters the public domain, it looses its copyright? Really, Doug?

No, that's part of what copyright is all about.
a copyrighted work does not lose its copyright protection simply because it is easily available to the public. See Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12F.3d 527, 537 (5th Cir. 1994) (“[P]rotected expression does not lose its protection simply because it is widely disseminated. If [the expression] is widely discussed, described, and reproduced, it is presumably with the permission of the copyright holder . . . [or]
because such discussion, description, and reproduction constitutes fair use.”) (emphasis in original).
So, there went Doug's new theory of why he wasn't wrong. Maybe Doug should stick with accounting (though given his track record of representations to federal courts, maybe not). (Also, maybe the Mississippi Board of Public Accountancy should look at Handshoe's inventive accounting of his damages in his brief to Judge Starrett).

But Judge Starrett went further and examined if possibly the Handshoe lawsuit revealed another valid basis for suing. "Given that there is no dispute that the minor child drew the image, and therefore held a copyright in it under 17 U.S.C. § 102(a)(5), nor is there a dispute that Plaintiff posted the image
without permission of the copyright owner or his agent, the only avenue through which Plaintiff
could have used the image was through the doctrine of fair use. See 17 U.S.C. §§ 106-07." So, did Handshoe make this basic legal argument? "Plaintiff does not plead that his use of the image constituted fair use." Even if he did, could Handshoe have ever proved his use of the drawing was "fair"--taking a sexually explicit minor child's drawing from a divorce file to write about it on the Internet as seeming revenge against a process server? No. 

Oh well.

Then Judge Starrett went to the cutting edge of 17 USC 512(f) case law, and cited a very recent decision of the 9th Circuit Court of Appeal. "Plaintiff does not allege that Yount and Abel did not in good faith consider any fair use defense he may have had before issuing the DMCA takedown notice. See Lenz v. Universal Music Corp., 801 F.3d 1126, 1132-33 (9th Cir. 2015) (holding that the DMCA requires copyright owners to consider fair use before issuing a takedown notice under § 512)."

Judge Starrett then properly went to Handshoe's own words and claims, or lack of them, to irrevocably dismiss the copyright claim. That is, Handshoe supplied his own evidence of why his lawsuit should be shuttered forever. "Plaintiff’s Amended Complaint [80] excerpts the takedown notice, which states that Yount and Abel did “have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” (Amended Complaint [80] at p. 11 (emphasis added).) As fair use is an authorized use under copyright law, see Lenz., 801 F.3d at 1132, the Court can only assume, absent any contrary allegations from Plaintiff, that Yount and Abel considered in good faith the applicability of the fair use doctrine in forming this belief. The Court therefore does not find that Plaintiff has sufficiently pleaded a misrepresentation under § 512(f)." That was that, the case was closed.

However, this is not the first time Douglas Handshoe has misrepresented jurisidctional amounts in the U.S. District Court for the Southern District of Mississippi.

In 2013, he had sued Abel, Yount, Leary, Perret, Trout Point Lodge, and others (sound familiar?) in Hancock County Circuit Court, and that case was removed by the defendants to the same federal court where Judge Starrett presides. In that case, Douglas Handshoe decided he liked being in state court, so he filed papers and an affidavit about his damages.

With this affidavit, Handshoe convinved Chief Judge Louis Guirola to remand the case to state court. Judge Guirola found in a published decision:
The defendants filed briefs asking the Court to construe Handshoe's Complaint in a manner that would demand punitive damages, seek the dismissal of lawsuits pending in other jurisdictions, and request that the Canadian judgment be overturned. The defendants argue that the Court should add the value of the Canadian judgment and other lawsuits filed by the defendants against Handshoe to the amount in controversy claimed by Handshoe. The defendants also rely on the fact that Handshoe is demanding approximately $55,000 in attorneys' fees pursuant to the SPEECH Act in the Handshoe I lawsuit. Certain defendants also accuse Handshoe of fraudulently asserting that the amount in controversy is less than $75,000.
The Court is not persuaded the defendants' arguments that Handshoe may later seek damages exceeding $75,000. Handshoe's Complaint makes no reference to punitive damages, and in affidavits filed one month after removal of the case to this Court, Handshoe stated that his damages totaled $25,000. (Handshoe II, ECF Nos. 19-1, 20-1, 24-1). In his brief concerning subject matter jurisdiction, Handshoe itemized those damages and specifically stated that the damages he sought at the time of removal totaled $25,000. He also submitted an affidavit in which he specifically disavowed his right to recover any damages in excess of $74,999.99 in this lawsuit. The defendants have not provided the Court with any evidence that disputes the amount of damages claimed by Handshoe.
Lo and behold, in October of 2014, Handshoe made a mockery of Judge Guirola's reliance on his statements and affidavit, and amended his remanded Hancock County lawsuit to allege everything Judge Guirola had found he would not ask for, including over $2.4 million, punitive damages, blocking of judgments against him, and injunctions.

Notably, such conduct itself is viewed dimly by the Mississippi federal courts:
If the plaintiff later attempts to amend the complaint to seek damages in excess of $75,000, exclusive of interest and costs, this Court may entertain removal under Tedford v. Warner-Lambert Co., 327 F.3d 423, 428-29 (5th Cir. 2003). See also Lee v. State Farm Mutual Automobile Ins. Co., 360 F. Supp. 2d 825, 832-33 (S.D. Miss. 2005) (stating that under Mississippi rules a plaintiff may amend as late as the close of evidence at trial, however "the Court presumes that the state trial judge would prohibit such an amendment as it would be allowing the Plaintiff to perpetrate a fraud on this Court").

vendredi 8 janvier 2016

Mississippi blogger's lawsuit dismissed by federal court; judge determines Douglas Handshoe admitted making false representations to the court

The U.S. District Court for the Southern District of Mississippi has just dismissed all claims homophobic Mississippi blogger Douglas Handshoe made against his numerous legal oponents in a
case involing Handshoe's allegations involving a "line of gay robots"and a minor child's drawing. The court has also struck recent amendments made by Handshoe to add new defendants, including the owners of a remote Nova Scotia wilderness lodge.

In his Memorandum Opinion & Order, Judge Keith Starrett found blogger and CPA Handshoe "exceeded" an order of the court, in that "amendments to his complaint exceed the allowance made by the Court."

Much more notably, the Mississippi federal court found "Plaintiff’s argument now amounts to an admission that he previously made false representations concerning his damages to the Court . . ."
Part of the federal court's decision
This case has attracted the attention of copyright lawyers from around the United States, as Handshoe was using an aspect of Internet copyright law to pursue, through the courts, a grand conspiracy theory. Handshoe recently sued the National Geographic Society, among others, for conspiracy in an ongoing case in the same federal court.

The U.S. District Court also roundly rejected Handshoe's allegation of "mispresentation" under the Digitial Millenium Copyright Act, and dismissed the claim with prejudice.

More to come . . .