On Friday, March 13, 2015, Handshoe actually filed his amended complaint in Starrett's Mississippi court.
Judge Starrett issued the order on March 10, 2015, in part, he stated because Mr. Abel had failed to file an opposition to Handshoe's motion to amend the legal action to include the new defendants and claims. The lawsuit was previously only based on alleged misrepresentation under the Digital Millenium Copyright Act. The judge also said, however, that under federal law plaintiffs are generally allowed to make a first amendment.
The purported copyright violation by Abel was for "misrepresentation" in a take down notice sent to Handshoe's web host HostGator. As the Technology & Marketing Law Blog recently stated this will be a difficult case to make out:
To discourage abuses of the notice-and-takedown system, Congress enacted 17 USC 512(f) to create a new cause of action for sending bogus takedown notices.Mr. Abel had filed a motion to dismiss the lawsuit on August 6, 2014. Judge Starrett never ruled on the motion until the same day he decided in favor of Handshoe; that is more than 7 months after Abel's motion was filed. Legal observers say this is an extraordinary amount of time for the judge not to rule on a motion challenging jurisdiction. Federal court rules say motions on jurisdiction supposedly have priority. By contrast, Judge Starrett ruled on Handshoe's motion to amend in less than a couple of weeks since the deadline passed for Abel to file his opposition.
512(f) was a good idea, but it has failed terribly in the field. In the 2004 Rossi case, the Ninth Circuit gutted 512(f) by requiring 512(f) plaintiffs show that a takedown notice sender lacked subjective good faith. Absent a “smoking gun” email (which, almost certainly, will be found only in discovery and only if the 512(f) case survives a motion to dismiss), it’s virtually impossible for a plaintiff to prove the absence of subjective good faith.
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| Legal clown Douglas Handshoe, CPA |
Remarkably, Canadian court documents show that Handshoe was admonished in 2013 by judges there while he was a defendant in a copyright infringement and defamation lawsuit precisely for filing "rude" and scandalous materials with the court. Handshoe ultimately lost in that case, and also lost an attempt to have the resulting proceeding against him removed to federal court under the SPEECH Act.
Loyola's legal clinic was appointed by the Louisians state divorce court to represent the minor child's interests. The father--a process server who has served Handshoe with lawsuits on several occasions--was involved in a divorce proceeding. In what distinctly appears like payback for having served him with legal process, Handshoe took items from the divorce court file, including a drawing by the minor child, for publication on his blog. The court record was shortly thereafter sealed apparently due to Handshoe's publications on his blog. The father and Loyola jointly filed the appeal brief.
Legal observers say it is entirely unclear if Handshoe has actually stated any facts or law in his lawsuit sufficient to constitute "abuse of process" and "malicious prosecution." In addition, such complaints are usually brought within the court where the alleged abuse and malcicious prosecution occured. The fact that an appeal is ongoing also makes Handshoe's claims before Judge Starrett appear dubious.
This started when Handshoe and Jack "Bobby" Truitt were sued by the process server, Chris Yount, for internet defamation. Handshoe and his Covington attorney Truitt allegedly defamed Yount through innuendo published on Slabbbed that he had molested the minor child. Truitt allegedly participated in identifying Yount and his child by posting comments on Slabbed. Handshoe claims the child's drawing showed "a young child being sodomized by a line of robots." On his blog he had published that the drawing depicted a male child being sodomized. The Louisiana divorce court apparently did not agree, and any reasonable person looking at the drawing could not come to that conlusion, which appears to be motivated by what attorney Abel termed Handshoe's personal obsession with other men's sexuality. Truitt has, since Handshoe's intention to sue Loyola became public, withdrawn the Truitt Law Firm's advertising from Handshoe's web site, distancing himself from the blog. Truitt graduated from Loyola Law School.
An open question remains as to whether Handshoe will "man up"--one of his favorite phrases--and actually serve Loyola, Fernandez, and the others with the lawsuit, or if he's simply engaged in using the courts to chill speech he doesn't like.
According to the district court order, Abel is free to again file documents seeking dismissals of the lawsuit, including possibly seeking attorney's fees, which started when Abel served a takedown notice on Handshoe's web host pursuant to an order from the Louisiana court. The aim was to have the sensitive drawing removed from publication on Handshoe's blog. Allegedly, Handshoe published the drawing yet again in another blog post. Remarkably, Judge Starrett also earlier denied Abel's motion to remove the sexually-explicit image from the public court file available online.
Abel claims he has no contacts with Mississippi. One can only wonder how Handshoe and his wife Jennifer Handshoe or any other parents would respond to having their child's drawing published prominently on the internet, let alone alongside alleged accusations about sexual molestation.
Loyola, attorney Fernandez, and the other defendants will now likely have to answer Handshoe as well. They are likely to seek dismissal on various grounds as well as fees & costs.
If the case goes forward, it will pose numerous legal questions, including the boundaries of the First Amendment and a Mississippi federal court's power to interfere in the judicial process of Louisiana state courts. Handshoe's action could be seen as an illegal collateral attack. Handshoe's motives, privacy concerns and the protection of the minor child will be important issues.
