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").

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