Finally got around to reading the new papers filed in the Joseph Rakofsky v. the Internet case. Here they are:
- Defendants’ Opposition to Motion to Amend
- Eric Turkewitz’s Affidavit in Opposition to Amend Complaint
- Defendants’ Reply to Response to Motion to Dismiss
- Eric Turkewitz Affidavit in Support of Motion to Dismiss
A couple of weeks ago I did my best to try and breakdown Rakofsky’s set of papers. This week Marc Randazza and Eric Turkewitz did a much better job.
The opposition to Rakofsky’s Motion to Amend discusses Rakofsky’s endless amount of paper he has made everyone sift through, including opposing a pro hac motion, requesting a stay and then violating it by trying to file motions that were deemed “incomprehensible”, and then appealing the denial of those motions. Rakofsky also sought $5000 settlements from many of the defendants, which some actually paid. As the Defendants point out:
Once the Court granted Marc Randazza’s pro hac vice admission on September 15, 2011, Rakofsky requested and received a stay of proceedings so that he could retain new counsel. On October 24, 2011, however, Rakofsky attempted to file documents with the court in violation of this very stay that he had just requested.
Rakofsky again tried to receive ex parte relief from the Court on December 23, 2011, bringing an order to show cause that sought a wide range of relief ranging from a second amendment of the complaint, to court orders that involved at least one non-party, Google, Inc. On the face of these papers, it was hard to understand what, exactly, Rakofsky wanted the court to do. The filing was so awful that Justice Goodman, who handled this matter prior to her retirement, denied it on January 3, 2012 as “incomprehensible.”
Rakofsky’s proposed Seconded Amended Complaint is a staggering 269-page, 1223-paragraph document seeking more than $200 million in damages. I’m sure the court will love it.
As for the response to Rakofsky’s reply to the motion to dismiss, this sums up the theory of Rakofsky’s case:
Rakofsky would have this court believe that the judge presiding over the U.S. v Deaner case questioned Rakofsky’s competence and ethics because he (the judge) was threatened by Rakofsky’s brilliance. (Opp. at 16, 52, 66-67) Once the Court buys that, the Court should then believe that the defendants all conspired to write about the judge’s statements as part of an elaborate plan to get rich off the extensive client network he accumulated over his vast time practicing law. (Opp. at 39, 43, 44, 68).
And of course, none of what happened is Rakofsky’s fault…
When his misdeeds became a matter of national discussion, Rakofsky failed to consider that perhaps the reason that the entire legal profession was abuzz with the story of his incompetence and ethical failures in the Deaner trial was because he was, indeed, both incompetent and unethical. Incapable of self-reflection, Rakofksy then set his sights on quashing the First Amendment rights of these defendants in order to vindicate his ego (See Id.; see generally Opp. to Mot. to Dismiss) and trying to extort nuisance settlements from the defendants (Doudna Mot. To Dismiss Ex. F). Joseph Rakofsky has proven himself incapable of learning lessons or respecting constitutional rights. It is now incumbent on this Court to dismiss this litigation and force Rakofsky to accept the latter, though he may be incapable of the former.
And while Rakofsky claims that linking to other stuff creates liability, there is one teeny problem… it actually doesn’t:
Under Rakofsky’s view, merely linking to this unfavorable coverage is a source of liability because it creates a web. This bizarre theory undermines the World Wide Web’s very purpose as a conduit for free information, and has been roundly rejected. Firth v. State, 98 N.Y.2d 365 (N.Y. 2002); Haefner v New York Media, LLC, 82 A.D.3d 481, 482 (1st Dept. 2011) (linking to allegedly defamatory articles not defamation); Martin v. Daily News, L.P., 35 Misc. 3d 1212A (N.Y. Sup. Ct., N.Y. County 2012) (holding that links sharing a previously available allegedly defamatory article through social media outlets did not constitute defamation); See Salyer v. Southern Poverty Law Ctr., Inc., 701 F. Supp. 2d 912, 918 (W.D. Ky. 2009).
Here is where it gets weird… Rakofsky’s admitted that “incompetence” is a matter of opinion and therefore cannot be the subject of a defamation claim:
Rakofsky admits that the defendants’ statements regarding his incompetence are not defamatory, and “would be a matter of opinion that would be neither provably true nor untrue.” (Opp. at 47, 52)
So why is he still pursuing the claim? Because now Rakofsky is trying to claim apparently that there was no mistrial. Which is weird, because he swore under oath that there was a mistrial, and he put “MISTRIAL!” on his own Facebook page. As you might imagine, the Defendants decimate him on that point:
The Deaner case did, in fact, end in mistrial. On March 31, 2011, Rakofsky himself boasted on his Facebook profile “1st Degree Murder… MISTRIAL!” (Ex. F). Rakofsky swore under oath that he even asked the Deaner court to effectuate a mistrial in his October 24, 2011 affidavit submitted to this Court (Rakofsky Aff. of Oct. 24, 2011 ¶ 32). By Rakofsky’s logic, he has defamed himself. Rakofsky plays semantics as to what precisely ended the Deaner case – though it appears likely that the “conflict” with his client arose from his own incompetence – but the outcome was undoubtedly a mistrial. On April 1, 2011, Judge Jackson “grant[ed] the motion for new trial.” (Ex. E at 5:2), explaining to Deaner that the consequence of granting the motion would result in “abort[ing] the trial,” “dismiss[ing] the jury” and his continued detention while the government could re-try him. (Id. at 2:17-3:6) Clearly, this is a “mistrial.”
Just in case anyone has forgotten:
So that’s Joseph Rakofsky’s case in a nutshell. He took on a murder case as his first trial and he did such an
abysmal awesome job that the judge declared a mistrial dismissed the case because Rakofsky was incompetent too awesome. Then bloggers like Brian Tannebaum, Scott Greenfield, Carolyn Elefant, and Eric Turkewitz sought to tell a cautionary tale get rich off Rakofsky by linking to each other’s blog posts. And although Rakofsky admits that the blog posts constitute protected First Amendment speech stuff that makes him butthurt, he wants to continue with the claim because I don’t really know why.
There are also a few bonus LULZ in here…
Bonus I: Rakofsky refused to allow service by email, but then he refused to serve the Defendants with all the papers.
While we could not stop the voluminous paper filings, as this case sadly missed the new ECF system, defendants sought to ease the deluge by agreeing to service by email. The plaintiffs refused, preferring to mail volume after volume of paper, much of it merely re-stating the same “facts” they hope will one day rescue them from sanctions. But the plaintiffs now reap what they have sown, having created massive quantities of opposing papers and then failing to keep up with it and properly serve them as the court directed.
The defendants’ motion to dismiss may be granted simply by default. Rakofsky has neither properly nor timely served his opposition briefs on these defendants and many others, and have intentionally withheld a complete record from defendants’ counsel (Turkewitz Aff. ¶¶ 6-10). This is despite repeated attempts to convince him to do so.
Opposing briefs were to be served by May 18th (Ex. V). But plaintiffs only served one of their 13 sets of papers on us by that date. The Washington Post and Reuters briefs were served May 22nd and 10 more briefs were served May 24th (id. ¶¶ 6-10). This predictable gaffe is not only problematic, but prejudicial as well – Rakofsky’s opposition to the defendants’ motion to dismiss incorporates by reference other memoranda of law that the defendants had been neither timely received nor served (Opp. at 2). Plaintiff has thus consented to the defendants’ motion to dismiss by virtue of this failure to properly serve its responses. CPLR § 2214(c) (“Only papers served [properly] shall be read in support of, or in opposition to, the motion”); Traders Co. v. AST Sportswear, Inc., 31 A.D.3d 276, 277 (1st Dept. 2006); Auchampaugh v. Lewis, 173 A.D.2d 1059, 1060 (3d Dept. 1991).
In sum, the Rakofsky plaintiffs seem to have made every conceivable mistake in trying to start and maintain a lawsuit, and then persisted in making mistakes once it was started, including a $10,000,000 claim that he now concedes is frivolous yet wants to continue.
Bonus II: Rakofsky has a computer “expert” who claims to be proficient in C+++ and HTML 5, which he calls “hyper treading multi language.” (Hint: HTML means “HyperText Markup Language”). The defendants crush this point:
Rakofsky’s “forensic expert” reveals his lack of qualifications within two paragraphs of his affidavit. Specifically, Mr. Alayon claims to be an “expert” in “HTML 5 (which he mysteriously refers to as “hyper treading multi-language”) and he claims proficiency in “C+++”. (Alayon Aff. ¶ 2) Neither of these languages even exist. HTML 5 is the fifth iteration of the HyperText Markup Language (“HTML”) standard, which has been in use since 1990. This is the anchor of the Internet, which allows sites to link to each other.
Alayon places the defendants in the position of proving a negative with respect to his claim that he is an expert in “C+++.” (Id.) While C, C++ and C# are all recognized computer languages, “C+++” does not exist, and is often the subject of programmer jokes. Normally, discrediting an expert takes some work, but when a professed “expert” actually claims to be proficient in a programming language that only exists in programmer jokes about computer ignoramuses, all of the sport is taken out of the thing. Alayon’s errors betray his ignorance in an area where he is supposedly authoritative.
Only one word can describe all this: PWN3D.