UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT BIBLE & GOSPEL TRUST,
Plaintiff, v.
TIMOTHY J. TWINAM, et al., Defendants.
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Case No. 2:07-cv-17
PLAINTIFF’S OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO STRIKE Plaintiff Bible & Gospel Trust (“BGT”) hereby opposes Defendant Timothy J. Twinam’s (“Twinam’s”) Special Motion to Strike (3/6/08) (Docket No. 54) (“Motion”).
1Twinam’s motion relies upon a state statute that applies neither in federal court nor to the conduct at issue here. Specifically, 12 V.S.A. § 1041 (also referred to as Vermont’s anti-SLAPP statute) is a procedural law that compels state courts, in certain lawsuits involving state laws, to resolve crucial factual and legal issues presented by a lawsuit before discovery occurs. This statute, which squarely contradicts the liberal pleading standards and discovery processes contemplated by the Federal Rules of Civil Procedure, has no bearing upon this federal court case. Nonetheless, even if it could be applied in this court, the statute only applies to cases in which the plaintiff is attempting to stifle the defendant’s exercise of their right to free speech or petition the government, e.g., when a large land developer files a lawsuit against environmental activists or neighborhood associations to chill their ongoing political or legal opposition to development plans. See Wilcox v. Superior Court of Los Angeles County, 27 Cal. App. 4th 809, 815 (Cal. App. Ct. 1994). This is not such a case. This is a copyright and tortious interference
1 Because Twinam did not file his motion in a timely manner, he was required to seek leave of Court to permit his late filing. See 12 V.S.A. § 1041(b). Although Twinam was granted such leave at a hearing on March 27, 2008, he has not yet re-filed his motion. Nonetheless, for purposes of filing this opposition and out of an abundance of caution, BGT has treated Twinam’s motion as though it were filed on the date of the hearing.
with contract case, in which BGT is enforcing the intellectual property rights that have been infringed by defendants’ illegal copying and publication of BGT’s copyrighted material, and BGT is remedying and/or preventing defendants from tortiously interfering with its valid contractual relationships. It is not an attempt to stifle any First Amendment protected free speech by the defendants or any other party, and for defendants to suggest otherwise in their motion borders on the preposterous. Improperly obtaining another party’s proprietary materials and depriving them of their exclusive right to publish (or not publish) those materials as they see fit is not protected by the First Amendment. Indeed, it is not “speech” at all.
Accordingly, even if Vermont’s anti-SLAPP statute applied to this federal court lawsuit (which it does not), Twinam’s motion still should be denied because defendants’ conduct is devoid of legal support and has caused BGT actual injury. Twinam cannot escape liability for his conduct by merely averring that, “to the best of his knowledge,” he has done nothing wrong.
Even if a defendant could escape liability with mere averments, Twinam’s unsupported allegations cannot be accepted. Twinam has already delayed this litigation by more than a year with several misrepresentations to the Court, i.e., contrary to his repeated assertions that he has very little to do with the operation or ownership of his co-defendant, Peebs.net, Twinam now has admitted that he is the website’s sole owner and operator. Having misrepresented critical facts to this Court, Twinam’s latest allegations in support of his motion lack merit. The Court, not Twinam, is the ultimate arbiter of the legality of defendants’ conduct and, until meaningful discovery occurs (which it has not), there is no support for Twinam’s request that the Court conclude at this early stage, as a matter of fact and law, that defendants’ conduct was lawful.
Twinam’s motion, therefore, should be denied.
ARGUMENT
A. 12 V.S.A. § 1041 Does Not Supersede the Federal Rules of Civil Procedure
The Vermont statute cited by Twinam has no bearing on this action. It is merely a state procedural law that, pursuant to Erie v. Tomkins, 304 U.S. 64 (1938), and its progeny, does not apply in federal court. The statute, while recently enacted in Vermont, strongly mirrors a Massachusetts law
2that two separate judges have refused to apply in federal court proceedings.
See Stuborn Ltd. P’ship v. Bernstein, 245 F. Supp. 2d 312, 315-16 (D. Mass. 2003) (denying special motion because the state statute is “predominantly procedural in nature, and [] directly conflicts with the Federal Rules of Procedure”); Baker v. Coxe, 940 F. Supp. 409, 417 (D. Mass.
1996) (denying special motion because the state statute imposed additional procedures beyond the Federal Rules of Civil Procedure and such rules of practice do not control procedural questions arising under Fed. R. Civ. P. 12). The reasoning of these cases is persuasive and should be adopted here.
As explained in Stuborn, “the Federal Rules of Civil Procedure, rather than the Anti- SLAPP burden shifting procedures, control a case such as this,” and this Court cannot be compelled by a state legislature to ignore the liberal pleading standards permitted by the Federal Rules of Civil Procedure and to resolve fact-intensive issues at such an early stage of the litigation – well before any meaningful discovery can be conducted. Stuborn, 245 F. Supp. 2d at 315-16. See also Baker v. Coxe, 940 F. Supp. 409, 417 (D. Mass. 1996) (deciding to “examine the allegations of the complaint under the well-worn standards governing Fed. R. Civ. P.
2 Compare 12 V.S.A. § 1041 (special motion to strike shall be granted in cases based on defendant’s right to free speech or to petition the government unless plaintiff shows that the defendant’s conduct “was devoid of any reasonable factual support and any arguable basis in law” and that the conduct “caused actual injury to the plaintiff”) with M.G.L. ch. 231, § 59H (special motion to dismiss shall be granted in cases based on defendant’s exercise of right to petition unless plaintiff shows that the defendant’s conduct was “devoid of any reasonable factual support or any arguable basis in law” and that the conduct “caused actual injury” to the plaintiff).
12(b)(6) motions, not the hybrid statutory procedure in section 59H which is more akin to a summary judgment motion”). Requiring BGT to prove its case before discovery would violate its right to have this case fairly decided in a court of law, as prescribed by the Federal Rules of Civil Procedure.
3B. 12 V.S.A. § 1041 Does Not Immunize Defendants’ Conduct
1. The Conduct at Issue Does Not Involve the Right to Freedom of Speech Even if applied in federal court, the Vermont statute at issue only applies to lawsuits
“arising from defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government.” 12 V.S.A. § 1041(a). This lawsuit, however, does not arise from any such conduct. Nor does it, contrary to Twinam’s mischaracterization, concern the general operations of Peebs.net. Rather, it focuses squarely on defendants’ illegal copying, publication and/or threatened publication of certain materials that violate BGT’s rights and proprietary interests (whether by contract or by intellectual property laws). Such conduct, simply put, is not a “statement,” it does not concern an issue of “public interest,” it is not performed in a “public forum,” and it is not protected by the First Amendment any more than any other copyright infringement. See 12 V.S.A. § 1041(i)(3-4). Indeed, Twinam himself concedes that portions of Peebs.net is not accessible to the public and that access to such portions is restricted to select “members.” Mot. at 3 n.4; Aff. at ¶ 3. Defendants’ conduct in improperly obtaining materials and, in some instances, re-publishing them in private forums does not constitute “statements” in “public forums.” Cf. Wilbanks v. Wolk, 121 Cal. App. 4th 883, 897
3 Contrary to Twinam’s argument, 12 V.S.A. § 1041 does not “govern[] state-law claims in federal court.”
See Mot. at 2 (citing Achtman v. Kirby, McInerney & Squire LLP, 464 F.3d 328, 337 n.2 (2d Cir. 2006)).
Conspicuously, the case cited by Twinam has nothing to do with any of the issues presented in this case, let alone Vermont’s anti-SLAPP statute. The Second Circuit’s application of substantive state malpractice law to state claims being adjudicated in federal court is irrelevant to this case and to Twinam’s motion. As discussed above, the Vermont statute that Twinam relies upon is a procedural, burden-shifting law that squarely conflicts with the Federal Rules of Civil Procedure.
(Cal. App. Ct. 2004) (A web site may be a “public forum” because “it posts statements that can be read by anyone who is interested.”).
Defendants’ conduct, moreover, does not concern an issue of “public interest.” In order to qualify for protection under anti-SLAPP statutes, “[i]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” Wilbanks v. Wolk, 121 Cal. App. 4th 883, 898 (Cal. App. Ct. 2004). Here, Twinam offers no evidence that his procurement and re-publication of BGT’s proprietary materials contributed to the public debate. Indeed, the re-publication of proprietary materials – without any commentary – does nothing to further public discourse. Twinam offers no evidence that anyone was enlightened by his or his co-defendants’ behavior. Cf. id. at 900 (“The statements, although undoubtedly of interest to the membership, were unconnected to any discussion, debate or controversy, and thus unconnected to any matter of public interest.”).
Finally, defendants’ conduct also is not protected by the First Amendment. There is no constitutional right to interfere with another party’s contractual and intellectual property rights under the guise of “free speech.” See Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 672, 682 (9th Cir. 2005) (“An infringement lawsuit by a trademark owner over a defendant’s unauthorized use of the mark as his domain name does not necessarily impair the defendant’s free speech rights.”). Particularly at this early stage of litigation, it is impossible for Twinam to demonstrate that his conduct implicates the First Amendment, let alone that his conduct is authorized and protected by the First Amendment. See PGC Property, LLC v.
Wainscott/Sagaponack Property Owners, Inc., 250 F. Supp. 2d 136, 144-45 (E.D.N.Y. 2003)
(“At this juncture, the Court declines to determine the applicability of the SLAPP law. The
factual record is limited and no discovery has been conducted. Because there exists issues of
material fact with respect to the plaintiffs’ claims, the Court finds it premature to determine whether the defendants’ web site was developed to exercise their free exercise of speech and petition, implicating the SLAPP law.”).
2. The Conduct at Issue is Devoid of Factual or Legal Support and Has Caused Actual Injury to BGT
Even if Vermont’s anti-SLAPP statute applied to this case in federal court (which it does not) and even if Twinam can show that his conduct is protected by the First Amendment (which he cannot), Twinam’s motion would still fail because the defendants’ conduct at issue in this lawsuit is devoid of factual or legal support and has caused actual injury to BGT. See 12 V.S.A.
§ 1041(e). Twinam and his co-defendants have no right to procure or publish materials subject to various contractual and intellectual property rights held by BGT. This lawsuit is not about the truth (or lack thereof) of defendants’ publications or allegations. It is about the legality of them.
Neither BGT nor the Court should have to take Twinam’s word for it that he has not, “to the best of his knowledge,” done anything wrong. See Mot. at 4-5 (“Mr. Twinam avers in the
attached affidavit that he has not, to the best of his knowledge, copied, possessed, or published any of Plaintiff BGT’s ‘proprietary’ materials. Mr. Twinam also avers that he has not interfered with the contractual relationship that exists between Plaintiff BGT and Richard Wyman, the owner of a previous website.”). Neither Twinam nor his co-defendants can escape liability simply by averring that they did nothing wrong. Such a ruling would nullify the need for any court of law and any rules providing for the taking of discovery.
Even if Twinam’s untested averments were enough to escape liability, they could not be
accepted. Throughout this litigation, which has been delayed for a year by Twinam’s refusal to
comply with his discovery obligations, Twinam has made several misrepresentations to the Court
on crucial issues. Twinam, for example, transferred the domain name of Peebs.net to his wife
after learning of this lawsuit and then told the Court repeatedly that he was not the owner of the website, that he had no connection with the website, that he was improperly named as a defendant in this litigation, and that he could not be held responsible for the website. This all turned out to be untrue when Twinam finally answered BGT’s interrogatories. Compare Ex. 1, Twinam’s Interrogatory Responses at 3 (“I owned the website from its inception on May 10, 2004 until April 5, 2007. I became owner again on January 25, 2008 and I am the present owner.
… My wife Sallie Twinam … owned Peebs.net from April 5, 2007 until January 25, 2008.”) with Twinam’s Further Statement to the Court (11/5/07) (Docket No. 32) (“I am not an owner of the website (Domain Name) peebs.net. I therefore cannot answer to, nor am I liable for any issue relating to the Domain Name.”). Indeed, Twinam told the Court that he should not have to provide discovery responses or participate in this lawsuit because his role in Peebs.net has been
“peripheral at best.” Twinam’s Further Statement to the Court (8/16/07) (filed as Exhibit to Docket No. 42) (“My only connection is in providing technical assistance to the website when asked to do so. Such assistance is purely on a voluntary and occasional basis.”; “In my opinion, it should be clear therefore that my role in this matter is peripheral at best.”).
4Only after being compelled by Court Order to provide responses to preliminary and straightforward discovery requests, did Twinam finally acknowledge that he, in effect, is Peebs.net. See Ex. 1, Twinam’s Interrogatory Responses at 7 (stating that “I alone operate Peebs.net”; “I alone have the ability to edit or otherwise control the content that appears on Peebs.Net”; and “I alone registered Peebs.net”.).
4 See also “Supplementary Information” (April 2007) (filed as Exhibit to Docket No. 42) (“I suggest to the Court that the Plaintiff has no evidence apart from guesswork that even suggests I am involved with my co- defendant. I have admitted to the Court that I assist the technical operation of the site when asked to do so. I am by profession a software programmer. I am not however a legal owner of the domain name, I merely have access to the site when necessary for technical updates and housekeeping.” … “My only connection is in providing technical assistance to the website when asked to do so.”).
Defendants’ conduct is without any legal basis whatsoever. That Twinam, who has made several other misrepresentations to the Court, “avers” otherwise is meaningless. The Court, not Twinam is the ultimate arbiter of whether Twinam’s conduct was illegal. Moreover, at this early stage of the litigation, it is impossible to conclude that defendants have a legal basis for their conduct. Indeed, Twinam’s motion cites nothing other than his unfounded averments. Tellingly, Twinam does not cite any legal support for his publication of materials, the proprietary interests of which are indisputably owned by BGT. For example, BGT’s complaint alleges that defendants published a poem originally authored by Richard Wyman, the intellectual property rights of which were transferred to BGT pursuant to its contract with Mr. Wyman. See Am.
Compl. (3/31/08) (Docket No. 70) ¶ 19. Defendants do not dispute this.
Twinam, moreover, concedes that he copied materials from websites, the exclusive rights of which now belong to BGT. His only defense to re-publishing those materials is that, “to the best of [his] knowledge,” the prior owner did not post his own comments therein. Mot. at 5 n.5.
5In light of Twinam’s refusal to deny certain of BGT’s allegations and his acknowledgement that other allegations are true, it is impossible to conclude at this early stage of litigation that defendants’ conduct has a legal basis.
Defendants’ conduct also has caused actual injury to BGT. Pursuant to applicable law and contractual agreements, BGT has the exclusive right to use or otherwise publish certain materials. Defendants’ publication of those materials deprived BGT of its exclusive rights.
Tellingly, the only case cited by Twinam to establish that BGT has not been injured is a case in
5 Twinam seeks to justify his conduct by alleging that he copied BGT’s proprietary materials from the “Web Archive Project,” not from the websites themselves. The truth of this assertion cannot be established without discovery. Even were it true, however, it would be irrelevant. That Twinam copied certain materials from the Web Archive Project does not mean BGT does not hold the exclusive rights to such materials. Indeed, upon learning that its materials were improperly published by the Web Archive Project, BGT informed the Project of its exclusive rights and the materials have since been removed.
