03 December 2010

Defendants file Motion to Dismiss Free Press lawsuit, KingCast v. Kelly Ayotte, NH GOP and Nashua PD, NH Dist. 2010-CV-181.



Note: They are trying to avoid discovery by filing this, but they confuse the role of a Motion to Dismiss with the role of Summary Judgment.  Let me explain this to you laypeople, and to Defendants' lawyers like Jack Middleton, who was 100% wrong on the Pruneyard line of cases, which were recently followed in 2007. In Open Court he stated that these cases were no longer supported, but see Fashion Valley Mall, para. 3.

You see the Motion has to be read with all facts construed in the light most favorable to Plaintiff, i.e. me. And I mean just the words on the page, is there any possible way that there I have alleged a valid claim based on some Federal and/or local jurisdiction. And once you do that you take a cursory look to competing Federal Law in the circuits to see if there is a colorable claim. Whether or not the Court ultimately accepts the persuasive law and how it applies the law in my particular case in the Summary Judgment phase is up to debate after the Court reviews all of the relevant facts and nuances of the case, such as the fact that Defendants' first line of defense was not "private event" but was rather "you are not a journalist."

Be that as it may, what it all comes down to is that this is a case of First Impression in this District: No matter how much the Defendants try to avoid it, there has been no other time when someone coming to observe and ask questions has been expelled from a publicly-advertised event held on commercial property subject to state and local permitting. Their cited case of Kay v. Bruno, 821 f.2d 31 (1987),involves a bloke who wanted to disrupt the planned rally in order to get on stage and to participate, which would have altered the course of the planned rally.

By contrast, try as they might, the Defendants cannot show where I halted or impeded any essential function of any of the three (3) events to which I sought admission. The programs went off without a hitch, and Defendants may not rely on mere speculation that I would have disrupted speakers, that's ludicrous given the acknowledgment between Nashua GOP City Committee Chair Dennis Hogan, Nashua GOP Communications Chair Di Lothrop and me, in which it was clearly established that I was "just coming as a reporter."
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So then this Court must reasonably consider persuasive law from another Federal Jurisdiction in order to compare apples-to-apples and when it does, the yield supports Plaintiff, i.e. me:

As NAACP v. Thompson,  648 F.Supp. 195 D.Md.,1986 shows (actual case at leagle) I've got a certifiable constitutional question, the Court can take Judicial Notice that the VFW and Crowne Plaza have to have State and Local permits (liquor, lodging, food & beverage) to operate. 

And the law is exactly as I urged the Court to adopt earlier this week distinguishing the Kay NH case because I'm not looking to participate, rather to observe and to ask a coupla' questions. See Invisible Empire of the Knights of the Ku Klux Klan, Maryland Chapter v. Town of Thurmont, MD. 700 F.Supp. 281 (1998) (at leagle). That case held that the NAACP -- much like the Kay Plaintiff -- cannot barge in and command a place on the dais, but that's just common sense, something that the Defendants sorely lack.

And they also claimed that there is no possible 42 U.S.C. 1981 violation when I was clearly denied the Right to Contract on at least two occasions, when I offered money at the Kelly Ayotte FB rally for a ticket, and as to the VFW rally, heck I've already posted another VFW rally case where the Court specifically ruled that a denial in that instance clearly constitutes a 42 U.S.C. 1981 claim. And of course Civil Rights statutes are to be liberally construed in order to best effectuate the remedial purpose of the legislation in the First Place, particularly at the Pleadings stage, that's Civil Rights law 101. What they want to test my mettle on that? Please.


Anyway, is this recent enough for them? I already showed above where Jack Middleton was flat out wrong about the Pruneyard line of cases on which NAACP v. Thompson was based, so now I'll smoke him on the 42 U.S.C. 1981 argument, is this recent enough, Jack?
Williams v. Le Crewe De Spaniards, 2009 U.S. Dist. LEXIS 4852



Ridiculous, specious arguments from Defense Counsel. Whatever, we're headed to SCOTUS anyway.Theme of the Day: I'm just sitting here so patiently.... just trying to do this jigsaw puzzle... before it rains anymore (bull crap from the skies above)....

7 comments:

SHE said...

I'm glad to see some movement.

Christopher King said...

This is a bowel movement.

I wouldn't be surprised to see a tortured decision emanate from the loins of the Court, however, especially given that they miraculously landed Judge McCafferty as Magistrate, who took the lies of Stephen Monier at face value and who worked at the same lawfirm as Kelly Ayotte, and two out of four of the Defense lawyers, Jennifer Parent and Jack Middleton.

They should have told me that so that I could have considered asking for a recusal, a fact I will duly note at the proper time.

For now, watch the KingCast movie on that. In fact, I've put it on the front page.

Christopher King said...

Preamble:

May it please the Court:

Defendants and Plaintiff have searched the entire spectrum of related cases and there is but one series of cases directly on point, in which African-Americans attempted to enter, attend and report on a publicly-advertised all-white rally where their attendance was not welcome.

And that case is NAACP v. Thompson, a case that provides Summary Judgment for Plaintiff......

Christopher King said...

I have know WTF I was doing in a Courtroom, and in Legal Pleadings from the day I started practice in 1993, same year as Defendant Ayotte. Now I'm going to show you:

MEMORANDUM IN OPPOSITION
TO DEFENDANT FRIENDS OF KELLY AYOTTE MOTION TO DISMISS

I. INTRODUCTION

At the outset Plainitff notes that Defendants have been laboring under a False Premise of Law set forth by lead Defense Counsel Jack Middleton at the 1 November, 2010 TRO hearing, in which he flatly and incorrectly stated that there was no modern support for the Pruneyard line of cases. He was 100% wrong as Pruneyard was recently followed in 2007, see Fashion Valley Mall, LLC v. N.L.R.B. 42 Cal.4th 850, 172 P.3d 742Cal.,2007.

More importantly, the Pruneyard line of cases provides the underlying foundation for NAACP v. Thompson, 648 F.Supp. 195 D.Md.,1986, the only case on point in the entire country where a black person or persons was attempting to gain entry into an all-white event as an observer and reporter, but not to take part in the rally. That case supports every contention made by Plaintiff at the TRO hearing.

And as we shall see on the 42 U.S.C. §1981 claims, Defendants are also laboring under a False Premise and lack of understanding on that law as well, because the offer of a ticket for entry to an event most definitely constitutes a Contract within the meaning of the Statute, which is to be construed liberally in order to effectuate the remedial intent of the legislation. See Williams v. Le Crewe De Spaniards, 2009 U.S. Dist. LEXIS 4852 (Appendix A).
II. Defendant’s Arguments

A. Service

Defendant, in an attempt to skirt the issues, has implied that it will mount an argument that Friends of Kelly Ayotte was not properly served because Plaintiff initially served “Kelly Ayotte Senate Campaign” by and through Kelly Ayotte at her home address, and did not waste the time and money to serve her with another Complaint noting the name change to reflect the correct name of the entity being sued. Plaintiff is correct, because the Court granted Plaintiff the Right to Amend his Complaint to clarify the names of the parties – but not the substantive identities of the parties or to add new parties -- and Plaintiff did so.

Plaintiff even changed the Case Caption on his name “KingCast” even though it is not clear that he is mandated to do so because “KingCast” is not a legal corporation at this point but is merely his alter ego. As KingCast will soon be a legal entity, Plaintiff took the side of caution on this matter. Therefore this case is indistinguishable from Estate of Xue v. Aramark Corp., 2007 U.S. Dist. LEXIS 30918 (2007) (Appendix B) in which case the Court ordered clarification of Defendants by way of an Amended Complaint and the case must go forward and be heard on the merits.

Christopher King said...

Want more, well I've got more. The Good Thing about Defendant's specious Motion is that it gives me the opportunity to make the record rock solid for appeal if the locals imprudently kill the case:

********

From Williams, supra, denying Defendant’s Motion to Dismiss on a 42 U.S.C. §1981 case dealing with private event ticket sales, just like the case at bar:

2 "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556, 127 S. Ct. at 1965.
Moreover, Punitive Damages are available under 42 U.S.C. §1981 even if an Administrative Proceeding has closed a Title VII suit against a Plaintiff. See Crouch v. UPI, 14 Fair Empl. Prac. Cas. (BNA) 1047 (1977), citing Allen v. Amalgamated Transit Union, 13 FEP Cases 171 (E.D. Mo. 1976); Tramble v. Converters Ink Co., 343 F.Supp. 1350, 4 FEP Cases 869 (N.D. Ill. 1972).

Lastly, in Keyes v. Wayne State Univ., 2010 U.S. Dist. LEXIS 106092 (Appendix C), the Court DENIED a Motion to Dismiss:

When reviewing a Rule 12(b)(6) motion to dismiss, the trial court "must construe the complaint liberally in the plaintiff's favor and accept as true all factual allegations and permissible inferences therein." Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994) (citing Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976)); see also Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). Because a motion to dismiss [*4] rests upon the pleadings rather than the evidence, "[i]t is not the function of the court [in ruling on such a motion] to weigh evidence or evaluate the credibility of witnesses." Miller, 50 F.3d at 377 (citing Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir. 1994)).

…..While Defendant's arguments may be appropriate for a motion for summary judgment they are without merit in a motion to dismiss.

C. The 42 U.S.C. §1981 Claims.
In this case Plaintiff has gone well beyond the applicable threshold: He has identified a pattern of questionable actions and inactions on the part of Kelly Ayotte that a Jury may find to be steeped in racial antipathy, as the underlying “acrimonious past” cited by Magistrate McAfferty arose out of a two failed attempts by Ayotte and her Law Enforcement brethren to punish Plaintiff for speaking out against police abuse AS AN NAACP LEGAL CHAIR. It doesn’t get any more racial than that.

Plaintiff’s Second Cause of Action reads.....

Christopher King said...

l) The aforementioned issues go well beyond general incompetence and dereliction of duty and stand as substantial proof that Kelly Ayotte is operating out of an illegal bias against a strong black investigative journalist and Civil Rights activist.

As such, Plaintiff provided more evidence of potential racially-discriminatory scheme three instances where the public were offered the opportunity to attend and to purchase tickets at all three events, and he has identified his efforts to attend these ticketed events, in one instance even going as far as to hold his money in his hand as the Defendant’s lead witness Stephen R. Monier told him in this colloquy at _______:

“Your money is no good here – That’s Right” and “You have been disinvited,” as he threatened to call the police, and did in fact call the police, while Plaintiff was situated on a public sidewalk. See the picture of the police cruiser at Attachment 1.

Plaintiff’s Complaint also noted that Senator John McCain – present at the VFW event with Defendant Ayotte – inexplicably expelled the sole black reporter Stephen ____ from an event in much the same manner that Plaintiff has been expelled and forbidden to enter despite the fact that Plaintiff has not disturbed the peace and no complaint of him so doing has EVER BEEN LODGED.

These are issues for the Trier of Fact to address, and it would be a grave injustice of this Court to truncate Plaintiff’s rights to present these matters to the Jury for its evaluation. That is the very reason we have Juries available in the American Jurisprudential model so that they can view and judge demeanor and veracity and decide whether unlawful viewpoint-based discrimination and/or racism occurred, in light of the ONLY “case on all fours,” NAACP v. Thompson, supra.

Christopher King said...

D. The Free Press Claims:

So then this Court must reasonably consider persuasive law from another Federal Jurisdiction in order to compare apples-to-apples and when it does, the yield supports Plaintiff:

As NAACP v. Thompson, 648 F.Supp. 195 D.Md.,1986 shows (actual case at leagle) I've got a certifiable constitutional question, the Court can take Judicial Notice that the VFW and Crowne Plaza have to have State and Local permits (liquor, lodging, food & beverage) to operate.

And the law is exactly as Plaintiff urged the Court to adopt earlier this week distinguishing the Kay NH case because I'm not looking to participate, rather to observe and to ask a few questions. See Invisible Empire of the Knights of the Ku Klux Klan, Maryland Chapter v. Town of Thurmont, MD. 700 F.Supp. 281 (1998) (at leagle). That case held that the NAACP -- much like the Kay Plaintiff -- cannot barge in and command a place on the dais, but that's just common sense.

An excerpt from Thompson from a 4 Nov. 2010 Journal Entry that Defendants read:

Nor do plaintiffs challenge the Klan's right to hold private, members-only, segregated meetings on private property. Rather plaintiffs contend that the exclusion of individuals from a public rally on private property which is *203 authorized by, and may not be held without, a county-issued permit, is unconstitutional.

That language virtually tracks the language set forth by Plaintiff from the podium at Oral Argument on the TRO, even though Plaintiff had not yet read Thompson his common sense told him that such an argument is reasonable, and indeed it is reasonable. As to the level of State and Local permitting involved at all three facilities herein, it is substantial:

As a New England Zoning and Entitlements manager Plaintiff has worked on some of the same projects as Defense Attorney Parent for OmniPoint, and he worked at the Crowne Plaza while he was suffering under a series of bogus, racially-motivated and failed prosecutions brought by Defendant Ayotte.

Plaintiff is therefore aware of many permits and licenses involved, particularly at the Crowne Plaza and VFW locations, which of course makes it necessary to engage in discovery as to those matters, meaning that the Motion to Dismiss on the matter is entirely specious and frivolous.
From Pruneyard at 81, 100 S.Ct. at 2040 (citations omitted)......

It may well be that Mr. Kelly, by opening his private farm property to the public for a Klan rally did not bestow upon attendees of that rally any right to speak during that rally or to require the Klan to call upon anyone to speak at the rally other than as the Klan desired. But, herein, plaintiffs do not seek the opportunity to speak at such a rally; rather, plaintiffs complain herein of being excluded entirely from attending such Klan rallies.

............But, “by choice of its owner,” the property was, on the occasion of each Klan rally, made “open to the public.” Having made that “choice,” the private property owner cannot complain that he has been deprived of his privacy, or of his freedom to use his own private property as he desires, if he is required not to discriminate among the members of the public by excluding all persons belonging to a particular race or to a particular religious group. A private property owner can surely invite whomever he selects to attend a private gathering on his property. But when he offers his private property to the public, he has placed himself in a position which enables the government, if it so desires, to impose certain requirements upon him.