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Toucher's Answer

If you're a public figure and someone says something that you believe to be untrue about you, Toucher's answer to Barnes' defamation complaint demonstrates why you should probably save your money and ignore it.

Toucher's Motion to Dismiss Denied; Barnes vs Toucher Continues

Toucher's attorneys had made a motion to dismiss Steve Barnes' lawsuit alleging defamation.  Judge Julie E. Carnes writes:

...[T]here are a number of elements required to maintain a defamation action. Here, plaintiff [Barnes] has alleged facts sufficient to meet all of them. First, falsity has been alleged and this is sufficient to survive a motion to dismiss. Second, plaintiff has alleged facts which, if true, would suggest that the statements were not privileged because the statements were not discreet or limited in scope to an appropriate audience. (Am. Compl . [31] at S 26 .) Further, it is clear that they were published, according to the complaint. (Id.) Third, it is unnecessary for the Court to determine plaintiff's status as a public figure today because he has pled facts sufficient to suggest malice on the part of defendant. (Id . at 1 29 .) By claiming that defendant [Toucher] was in a position to know, or knew or recklessly disregarded the truth, plaintiff has met his pleading burden. (Id .) Fourth, although plaintiff has arguably not pled facts sufficient to make a claim for slander per se, his allegations may constitute slander per quod. [Link added.]
...
It is possible and permissible for the jury to find that the statements that Barnes was fired implied that he had done some undisclosed acts, which necessitated his termination. Further, the jury could find that this is defamatory . This is especially true considering the circumstances surrounding Chris "Crash" Clark's notorious departure from the station . (See Am .Compl . [31] at SIH 35 - 36 .) This simple potential implication from defendant's words is all that is required to survive this motion to dismiss.  It is not the Court's position to decide that defendant's statements were or were not defamatory, so long as they are not nondefamatory as a matter of law.

Not all was bad for Toucher in the decision, however.  Judge Carnes gave her opinion on some of Barnes'  attorney's more colorful examples of defamation:

The only statements alleged by plaintiff that could conceivably be actionable here are the statements that plaintiff was fired.  All the other statements made by defendant, no matter how offensive and unnecessary, are not generally actionable...

Although the statements that plaintiff is a "retard" or is "captain back acne" could seemingly be proved false, they fall under the category of hyperbolic and scatological language, which are also not actionable

For more background on this case, check out the Barnes vs. TJ&L Category.

"the lone remaining Defendant" Is Off Hook on Copyright Infringement Claim

On July 11, Barnes settled his copyright infringement claim with Cumulus, Unihost, Jimmy, and Leslie.  On Friday, Barnes filed dismissal notices related to the four, along with a "NOTICE OF DISMISSAL OF COPYRIGHT INFRINGEMENT CLAIMS AGAINST FRED TOETTCHER." 

COME NOW, Plaintiffs NO WITNESS, LLC and STEPHEN BARNES and inform the Court that as part of the settlement with four of the Defendants (all Defendants except Mr. Toettcher), the Plaintiffs have agreed to dismiss all claims related to copyright infringement against all of the Defendants, even against Defendant Toettcher. Plaintiffs point out that the other four Defendants have been dismissed from the action altogether, leaving only Mr. Toettcher as the lone remaining Defendant. It is also noted that Defendant Toettcher has not answered the Complaint, instead having moved for a dismissal (which motion is still pending before the Court). Under these circumstances, Plaintiffs would appear to have the unilateral power under Rule 41(a)(1)(i) to dismiss the copyright claims against Defendant Toettcher by filing this Notice.

Essentially, the only claims that remain are the ones related to Toucher's alleged defamation.  Toucher's motion to dismiss that complaint was sent to the Judge Julie Carnes on July 12, 2007. 

Barnes Settles with Everyone Except Toucher

Barnes vs. TJ&L is now Barnes vs. T.  According to an order by Judge Julie E. Carnes:

On July 11, 2007, plaintiff's counsel, Arthur Gardner, orally advised that the above entitled action has settled with all of the defendants, except Fred [Toucher].

Toucher's motion to dismiss has also been ordered reactivated. 

Correction: Toucher "not close" to settlement

I mistakingly interpreted "NOTICE by Fred Toettcher Regarding Settlement" on the Docket report from the U.S. Party / Case Index as a "notice of settlement."  On Friday, as well as throughout the weekend, the text of fliings was not available, only the summaries in the docket report.  Today, once the actual filing was available, I discovered that the exact opposite is true.

From the Notice Regarding Settlement filed 5/24/2007: "Defendant Fred Toettcher ... notifies the Court that he is not close to a settlement with either Plaintiff."

Toucher/Barnes Settle?

Toucher's attorney Robert Spears filed a notice of regarding settlement with the District Court on May 24th.

In the meantime, Judge Julie Carnes has dismissed all of the pending motions to dismiss with prejudice.  According to the docket report of the case : "The moving party may send notice to the Court reactivating these motions, within thirty (30) days from the date of this Order, if settlement is not consummated."

Update 5/29/2007

Changed "of" to "regarding".  Toucher is, apparently, not close to settling his case and has asked that his motion to dismiss be reactivated.

Jimmy, Leslie, Cumulus "close to an agreement" with Barnes. Toucher, not so much.

According to a joint motion filed by Cumulus counsel David Stewart and Jimmy and Leslie's counsel Brandon Witkow on April 13, 2007:

The parties to this motion have been diligently working towards reaching a settlement agreement in this case, and these parties believe that they are close to an agreement regarding the settlement of all claims with the Plaintiffs. 

The purpose of this motion was essentially to defer Cumulus, Jimmy and Leslie's compliance with Local Rule 26.1 until the court's ruling on pending motions to dismiss.  In contrast, Toucher and Barnes both complied with local rule 26.1. 

One interesting aspect of the rule 26.1 disclosures were that both parties are required to name potential witnesses.  Proving his uncanny ability to insert himself into any social situation, on Barnes' list:  "Christopher Colandro" [sic].

Baron, Fram No Longer Charged with Defamation

In addition to the differences I documented yesterday, according to a motion filed October 9th by Art Gardner, Barnes' attorney: "The original Complaint has been amended so that the Amended Complaint does not charge Defendants Baron or Fram with defamation."

Is "Smart-Aleck" a Legal Term?

Barnes has amended his complaint against Toucher, et al.  While the copyright infringement portion of the complaint appears (upon a cursory glance) to be unchanged, the defamation count has been expanded (pdf 410K).  One new tidbit:

43. Defendant [Toucher] did not, within seven days after receiving the demand, correct and retract the libelous statements in as conspicuous and public manner as that in which the alleged libelous staements were published. Instead, Defendant [Toucher’s] posted a “smart-aleck” response on his website... [hyper-link added]

Here's the correspondence (pdf 285K).  Here's my original post on the lawsuit.

Developing...

 

Lawsuit Update

September 13, was the latest deadline for answers in Barnes vs. TJ&L.  Here's a brief run down of the developments.

Cumulus and Unihost have retained David Stewart, an Intellectual Property Attorney from Alston and Bird, one of Atlanta's premier firms, to represent them.   He has requested and received an extension (agreed to by Barnes' attorney) till 9/25/2006 to respond.  Toucher's attorney has requested and received a 9/25/2006 extension.

Leslie and Jimmy's attorney has filed a motion to dismiss with regard to the defamation complaint.  According to the motion:

[Barnes'] Complaint is devoid of any of the alleged defamatory statements Defendants Baron and Fram are believed to have uttered. Accordingly, even accepting Plaintiffs allegations as true, Plaintiffs failure to set forth even the substance of any alleged defamatory statement sufficient to give Defendants Baron and Fram notice of the basis for the claim and permit Defendants Baron and Fram to form a responsive pleading.

The premise of this being that every time an alleged defamation is mentioned in Barnes' complaint -- e.g. "captain back acne" -- it is coming from Fred Toucher.  The motion asks that the judge dismiss the case or in the alternate require that Barnes' attorneys amend the complaint "setting fourth a more definite statement as to the defamation claim."