sarah jones v. dirty world, llc - response to motion for sanctions re settlement letter

7/30/2019 Sarah Jones v. Dirty World, LLC - Response to Motion for Sanctions Re Settlement Letter

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION AT COVINGTON

SARAH JONES, a/k/a/JANE DOE,

Plaintiff,

v.

DIRTY WORLDENTERTAINMENTRECORDINGS LLC dbaTHEDIRT.COM, HOOMAN

KARAMIAN aka NIK RICHIE aka CORBINGRIMES, DIRTY WORLD,LLC dba THEDIRTY.COM,and DIRTY WORLDENTERTAINMENT, LLCdba THEDIRTY.COM,

Defendants.

Case No. 2:09-cv-00219-WOB

Judge William O. Bertelsman

DEFENDANTS DIRTY WORLD, LLC ANDNIK LAMAS-RICHIE’S RESPONSE TOPLAINTIFF’S MOTION FOR SANCTIONSAND TO ORDER REMOVAL OF LETTER FROM DIRTY.COM [SIC]

Defendants Dirty World, LLC d/b/a THEDIRTY.COM and Nik Lamas Richie a/k/a

Nik Richie (“Defendants” or “DW”) respectfully submit the following response to Plaintiff

Sarah Jones’s (“Plaintiff” or “Ms. Jones”) Motion for Sanctions and other related relief (Doc.

#154). The motion is without merit and should be denied.

The underlying facts are not disputed. On January 2, 2013, Plaintiff’s counsel Eric

Deters sent a demand letter to Defendants’ counsel. In the letter, Mr. Deters threatened to

inflict “great pain” upon defendants unless he was immediately paid $1 million. Mr. Deters

further implied that if he was not paid, he would reveal some unidentified harmful or

embarrassing information regarding Mr. Richie at trial. This implied threat was made within

a callous and snide remark suggesting, “you will enjoy the surprises I have for Nik when he’s

on the stand. As you know, I don’t have to provide you questions prior to trial, only

exhibits.”

Case: 2:09-cv-00219-WOB-CJS Doc #: 156 Filed: 01/11/13 Page: 1 of 30 - Page ID#:1949



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Although designated as “Confidential Settlement Negotiations”, Defendants

interpreted the letter exactly as it was intended—as an attempt to extort $1 million from

them. Based on their belief that Mr. Deters’ letter was severely unprofessional and likely

unlawful, Defendants posted the letter on their website for public review and comment along

with the text of an email response from undersigned counsel to Mr. Deters.

A copy of the actual January 3, 2013 post containing the letter is attached hereto as

Exhibit A. As reflected in the post, in the nine days since it first appeared on the site, the

post has received close to 200,000 views and nearly 1,000 comments/votes. A handful of the

viewer comments actually express support for Ms. Jones. However, the vast majority of

viewers interpreted the threat letter exactly as Defendants did—as both shockingly

unprofessional and likely unlawful.

In the instant motion, Mr. Deters employs precisely the same “ready, fire, aim”

approach to litigation which has resulted in his suspension from the practice of law and the

repeated imposition of substantial Rule 11 sanctions from this court. See Deters v. Davis,

2011 WL 2417055, *4 (E.D.Ky. 2011) (criticizing Deters for his “Ready, Fire, Aim”

approach to litigation” and finding, “Deters appears to believe that he can file any suit

against any person, and only later conduct the required research and, if necessary, amend to

bring his claims in compliance with the law. That is not what Rule 11 requires.”) Indeed, in

Deters, Plaintiff’s counsel was sanctioned for violating Rule 11 by doing exactly what he has

done here—taking a legal position without first performing any research to confirm the

validity of his position and actively misrepresenting the law.

Amazingly, Plaintiff’s counsel admits as much in his motion, acknowledging

“counsel has not researched the law on this unique circumstance ... .” This is, of course, no

excuse for filing a groundless motion. Further, it is an active misrepresentation insofar as

Mr. Deters fails to note that undersigned counsel has researched the law in this area and has

explained to Mr. Deters that Defendants’ conduct was entirely lawful.

Specifically, the same day that his first threat letter was posted on Defendants’

website, Mr. Deters sent a second letter to undersigned counsel demanding that the first letter




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be removed. Undersigned counsel immediately responded to Mr. Deters via email, a copy of

which is attached hereto as Exhibit B.

In this email, Mr. Deters was informed that based on the California Supreme Court’s

decision in Flatley v. Mauro, 39 Cal.4th 299, 139 P.3d 2, 46 Cal.Rptr.3d 606 (Cal. 2006), his

conduct likely constituted “civil extortion” under California law. Like in Flatley, Mr. Richie

is a resident of California and California law applies to such a threat. Indeed, but for a few

minor factual differences, the facts of Flatley are closely analogous to those here.

In Flatley, like in this case, the plaintiff’s attorney demanded a payment of $1 million

from the victim in a letter which, as here, purported to be a legal “settlement demand”. Like

in this case, the letter at issue in Flatley (a complete copy of which is appended as an exhibit

to the California Supreme Court’s decision) also contained a disclaimer indicating that “This

communication is governed by ... Rule 408 of Federal Rules of Evidence. All information

herein is for settlement purposes only.”

Despite these disclaimers, the California Supreme Court agreed that the $1 million

demand from plaintiff’s counsel “constitute[s] criminal extortion as a matter of law.”

Flatley, 139 P.3d at 22. This finding was due in large part to vague implied threats used by

plaintiff’s counsel suggesting that unless payment was received, he would release some type

of unidentified embarrassing information about the victim. Indeed, on this particular point,

the language used in Flatley —“[w]e are positive the media worldwide will enjoy what they

find[]”, 139 P.3d at 22 (emphasis added), was virtually identical to the sarcastic and sadistic

language used by Mr. Deters: “you will enjoy the surprises I have for Nik when he’s on the

stand.” Both messages convey exactly the same unlawful threat— pay me $1 million or you

will be sorry.

Mr. Deters did not, of course, offer any further detail regarding the “surprises” he had

in store for Mr. Richie. Rather than helping his position, this ominous lack of specificity is

exactly why the California Supreme Court found the threat in Flatley crossed the line from a

legitimate settlement offer into a criminal extortion threat; “Indeed, the very vagueness of the

accusation serves the dual purpose of ‘magnifying the fear of his victim’ and ‘protect[ing]’




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the extortionist ‘in the event of the failure to accomplish his extortion and ... prosecution.’”

Id . at 23 (quoting People v. Massengale, 261 Cal.App.2d 758, 765, 68 Cal.Rptr. 415 (1968)).

Here, Defendants reasonably believed that Mr. Deters’ threats were both

unprofessional and unlawful. Unwilling to remain silent victims of this outrageous conduct,

Defendants published the demand letter to inform the public of these events and to allow

them to judge Mr. Deters’ actions on their own as many have done.

In his motion, Mr. Deters cites no authority whatsoever that would prohibit such

conduct and Defendants have located no such authority. To be sure, although Fed. R. Evid.

408 limits the admissibility of settlement offers as evidence, nothing in that rule requires the

recipient of an unlawful demand letter to remain silent about the threats contained therein.

On the contrary, Mr. Deters’ unilateral decision to designate his demand letter containing

illegal threats as “confidential” is no more enforceable than a rapist’s instruction to his victim

never to tell a soul what has happened.

For these reasons, Plaintiff’s motion for sanctions should be denied.

RESPECTFULLY SUBMITTED: January 11, 2013.

NIK LAMAS-RICHIE/s/ David S. GingrasOf Counsel

David S. Gingras, Esquire (admitted pro hac vice)

GINGRAS LAW OFFICE, PLLC

3941 E. Chandler Blvd., #106-243Phoenix, AZ 85048480.668.3623

And

Alexander C. Ward, Esquire Alexis B. Mattingly, Esquire

HUDDLESTON BOLEN LLP HUDDLESTON BOLEN LLP855 Central Avenue, Suite 301 611 Third AvenueP.O. Box 770 P.O. Box 2185Ashland, KY 41105 Huntington, WV 25722-2185606.329.8771 304.529.6181

Counsel for Defendants

Nik Lamas-Richie and Dirty World, LLC




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CERTIFICATE OF SERVICE

I hereby certify that on January 11, 203, I electronically filed the foregoing with the Clerk of

the Court by using the CM/ECF system, which will send a notice of electronic filing to all

counsel of record.

/s/ David S. GingrasCounsel for Defendants,Dirty World, LLC and

Nik Lamas-Richie




Exhibit A




Exhibit B




David Gingras

From: David S. Gingras [[email protected]]

Sent: Thursday, January 03, 2013 9:18 AM

To: 'Eric Deters'

Cc: '[email protected]'; '[email protected]'

Subject: RE: Jones v. Dirty.com et al.

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1/11/2013

Mr. Deters,

While couched as a "settlement demand", your letter threatened Nik with "great pain" unless he paid you $1million. This demand is absolutely shocking. You also made an implied threat to expose embarrassinginformation about Nik unless you were paid.

At best, your conduct was severely unprofessional and at worst, it was almost certainly criminal. In Flatley v.Mauro, 39 Cal.4th 299, 139 P.3d 2, 46 Cal.Rptr.3d 606 (2006), the California Supreme Court found that virtuallyidentical conduct by an out-of-state lawyer directed at a California victim constituted "extortion as a matter of law". The lawyer at issue in that case was sued civilly for his conduct and he was also suspended from thepractice of law for one year (the lawyer never requested readmission and has since given up the practice of law). As you know, Nik is a resident of California and as such, if your threat violated California law which I strongly

believe it did, you would be exposed to liability in California.

Nik posted your letter with my express permission. He did this in order to draw public attention and scrutiny toyour actions, as he has an absolute right to do. If you feel shame or embarrassment as a result, then theappropriate remedy is not to seek groundless sanctions from the court. Rather, you should realize that makingchildish, unprofessional, and unlawful threats is improper and unethical, and you should control your actionsaccordingly.

If you have any questions, please let me know. As for your "settlement" offer (and without in any acknowledgingthat the letter was a legitimate settlement offer as opposed to an unlawful threat), it is respectfully rejected.

David S. Gingras, [email protected].: (480) 668-3623

Fax: (480) 248-3196

From: Eric Deters [ mailto:[email protected]]

Sent: Thursday, January 03, 2013 7:37 AM

To: < [email protected]>

Cc: [email protected]; [email protected]; Eric Deters

Subject: Jones v. Dirty.com et al.

Please see attached.

*Voice mails and faxes are forwarded to me as e-mails. This e-mail , including attachments, is coveredby the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and other similar statutes. This e-mail, including attachments, is confidential, and is intended solely for the use of the




individuals or entities to whom it is addressed. This communication may contain material protected bylawyer-client privilege, settlement discussions, a trade secret or other protected information which arenot to be used by the intended recipient or for any other purpose as determined solely by Eric C. Deters& Partners, P.S.C. I f you are not the intended recipient or the person responsible for delivering the e-mail to the intended recipient, be advised that you have received this e-mail in error and that any use,dissemination, forwarding, printing, or copying of this e-mail and any file attachments is strictlyprohibited. If you have received this e-mail in error, please immediately notify us by telephone at (859)

363-1900 or by reply e-mail to the sender. You must then destroy the original transmission and itscontents. CLIENT E-MAIL & ELECTRONIC POLICY 1. Be aware that e-mails sent from a devicebelonging to others, such as your employer's computer, may not be attorney-client protected unless youhave a reasonable expectation of privacy. This concept also may apply if the e-mail is sent through anemployer's network. The benchmark is a reasonable expectation of privacy." Do NOT expect privacy onany employer or public computer. 2. Avoid chain e-mails that go on-and-on. Avoid sending cross-correspondence beyond the original message and one reply. In other words: "One message, one reply."3. Avoid the Reply-All Button. Think before you hit the Send Button. 4. Strip-off the e-mail addressesof those who should not be receiving a copy of the communication, or a future response thereto. 5.Never include in an e-mail anything that you would not put in hard copy correspondence. People tend tostate things in e-mails they would not in a regular letter. 6. Unprivileged e-mails may become evidence.

Most Lawyer-Client and Doctor-Patient e-mails are privileged. 7. If you intend an e-mail or document tobe Attorney-Client privileged, preface the e-mail or document with: "Prepared at the Request of Counsel" or "This Document is Intended to be Lawyer-Client Privileged." 8. If you intend an e-mail or document to be Attorney-Client privileged, do not copy anyone else with the e-mail or document. 9.Never tweet or post anything about your legal matter on a social network, even the private side.

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sarah jones v. dirty world, llc - response to motion for sanctions re settlement letter

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