Xcentric Ventures, LLC, et al., v. Richeson

Filing 26

MOTION for Order to Show Cause re Contempt by Jaburg & Wilk, P.C., Xcentric Ventures LLC. (Speth, Maria)

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Xcentric Ventures, LLC, et al., v. Richeson Doc. 26 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 Maria Crimi Speth (012574) JABURG & WILK, P.C. 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 mcs@jaburgwilk.com (602) 248-1000 David S. Gingras (021097) Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: (480) 668-3623 David.Gingras@webmail.azbar.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA XCENTRIC VENTURES, LLC, an Arizona limited liability corporation, and JABURG & WILK, P.C., a professional corporation, Plaintiffs, v. SHAWN RICHESON, Defendant. Plaintiffs Xcentric Ventures, LLC and Jaburg & Wilk, P.C. (collectively, "Plaintiffs") hereby move this Court for an Order that Defendant Shawn Richeson appear and show cause why he should not be held in contempt of Court for having failed to fully comply with the Temporary Restraining Order issued by this Court on September 9, 2010 (the "TRO"). Despite acknowledging receipt of the TRO, Defendant Richeson has Case No.: 2:10-cv-1931-PHX-NVW MOTION FOR ORDER TO SHOW CAUSE RE: CONTEMPT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 continued his pattern of harassment, extortion and defamation of Plaintiffs by sending an email to Channel Twelve News containing false and defamatory statements about Jaburg & Wilk. In addition, Richeson sent another email to Jaburg & Wilk for the purpose of attempting to force the law firm (and, notably, not the entity capable of performing the 10297-73/MCS/MCS/831941_v1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 action requested) to remove statements about Defendant Richeson from the Ripoff Report website. Each email was sent in direct violation of the acknowledged TRO, and thus, Defendant Richeson must be required to appear before this Court and show cause why he should not be held in contempt. I. BACKGROUND FACTS As set forth in full in the Verified Complaint and Application for TRO, Defendant Richeson has engaged in a pattern of harassment and attempted extortion of Plaintiffs for a lengthy period of time, but to an escalating degree beginning on September 3, 2010 and continuing without cessation over the Labor Day weekend. On September 9, 2010, Plaintiffs requested, and received, an ex parte Temporary Restraining Order against Defendant Richeson. (Doc. No. 11). The TRO specifically found that Defendant Richeson had engaged in a pattern of harassing and extortive activity against Plaintiffs, and required that Defendant Richeson cease his improper actions, including, but not limited to, "knowingly sending or causing to be sent any threatening communications (other than threats to engage in lawful activity) to Plaintiffs." Id. The Court set a hearing on Plaintiffs' Application for Preliminary Injunction to occur on September 21, 2010. During the hearing on Plaintiffs' Application for Preliminary Injunction, the Court acknowledged that Defendant Richeson stipulated to the entry of a preliminary injunction. The Court further directed Plaintiffs to narrow the language of the proposed preliminary injunction and submit the narrowed language to the Court for entry as an order. The Court additionally clarified for Defendant Richeson that the TRO remained in place until such time that the Court entered the preliminary injunction. The Court specifically asked Defendant Richeson if he understood the fact that the TRO was still in effect. Defendant Richeson responded affirmatively that he understood everything and had anticipated such a result. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 10297-73/MCS/MCS/831941_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 II. DEFENDANT RICHESON IS IN CIVIL CONTEMPT FOR THE SEPTEMBER 26, 2010 EMAIL On September 26, 2010, Defendant Richeson sent an email to Channel 12 News. See Email from Shawn Richeson to Channel 12 News, attached hereto as Exhibit "A". This email was sent in knowing violation of the TRO. Nary a sentence within the email to Channel 12 News contains a wholly true statement about Plaintiffs. Instead, the email is rife with false content that defames Plaintiffs with the intent to destroy the reputation of Jaburg & Wilk within the Phoenix community. Included within the email are the following false and preposterous statements which were authored by Defendant Richeson: (1) Jaburg and Wilk P.C. a local law firm that works in partnership with a Phoenix website: www.ripoffreport.com has sued me in an attempt to cover up the criminal acts of attorneys and clients at Jaburg and Wilk P.C. (2) A Phoenix Federal Judge (Neil Wake) has found their claims to be merit less (3) Jaburg and Wilk P.C. run an online racketeering and protection scheme through its client's web site: www.RipoffReport.com (4) If you are a client of Jaburg and Wilk P.C, you will never end up on their web site and have essentially purchased mob style protection from Jaburg and Wilk P.C. (5) If you are not a client of Jaburg and Wilk P.C., you will be posted about and extorted for money to remove the very postings they create or they have their surrogates create and they will in turn cover up the posters identity (6) It is believed that Ed Magedson is the front man for Jaburg and Wilk, P.C. because he is judgment proof and a diversion of the truth about Jaburg and Wilk P.C.'s real motive of selling their protection racket cloaked under the guise of legal services. (7) A local private detective has been investigating them for several years and was sued by Jaburg and Wilk P.C. to silence him from exposing a highly damaging video depicting 3rd party accounts of extortion and racketeering believed to be committed at the hands of front man Ed Magedson. (8) Attorney's using the judicial process in furtherance of a racketeering enterprise See Exhibit "A." Also included with the email to Channel 12 News was Defendant Richeson's frivolous Motion for Sanctions, which itself contains additional false and 3 10297-73/MCS/MCS/831941_v1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 inflammatory statements about Plaintiffs1. Each statement identified above, coupled with the attached Motion for Sanctions, is a separate violation of the TRO. Plaintiffs sought the TRO as a result of the multiple statements made by Defendant Richeson to the effect that he would obliterate the business of Jaburg & Wilk. In particular, Defendant Richeson made statements like he would "make sure Jaburg and Wilk couldn't get a client if they stood on the corner with sign saying `we sue for food;'" that his "operation `ass slam jaburg and wilk' will be a huge success;" and that he would "cause as much grief, public scrutiny and loss of revenue as humanly possible to you and the firm of Jaburg and Wilk." (Doc. No. 8). Defendant Richeson's email to Channel 12 News demonstrates Defendant Richeson's intent to follow through with his prior threats despite the injunction. The email was sent by Defendant Richeson for the sole purpose of disrupting and otherwise destroying the business of Plaintiffs. The story spun by Defendant Richeson and presented to Channel 12 News is preposterous, yet consistent with the escalating fanciful message about Plaintiffs which Defendant Richeson has been propagating. By sending this email, Defendant Richeson (1) knowingly published a false and misleading communication about Plaintiffs; and (2) intentionally interfered with the contractual relationship between Plaintiffs and their clients, each of which is in direct violation of the TRO. Additionally, this form of communication making false 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statements to a news agency is a continuation of Defendant Richeson's harassment of Plaintiffs. III. DEFENDANT RICHESON IS IN CIVIL CONTEMPT FOR THE SEPTEMBER 10, 2010 EMAIL On Friday, September 10, 2010, counsel for Plaintiffs engaged in a series of correspondence with Defendant Richeson. This correspondence included providing Defendant Richeson with two separate copies of the TRO, as well as electronic copies of all other pleadings that have been filed in the short tenure of this litigation. Defendant Richeson acknowledged receipt of the TRO by email on September 10th, stating that he 1 If Richeson actually files the motion, Plaintiffs will address the impropriety of the Motion for Sanctions by a separate pleading. 4 10297-73/MCS/MCS/831941_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 "opened" the TRO, as well as the Application for TRO and Verified Complaint (among other pleadings). See Email from Shawn Richeson to Maria Speth, attached hereto as Exhibit "B". On September 12, 2010, Defendant Richeson knowingly and directly violated the TRO by sending a threatening communication to Plaintiffs. See Email from Shawn Richeson to Maria Speth plus attachment, attached hereto as Exhibit "C". The email was blind copied to almost every attorney who works at Jaburg & Wilk. It was also copied to an attorney who is adverse to Xcentric in an unrelated case and to a party who is adverse to Xcentric in an unrelated case. While a portion of Defendant Richeson's email could possibly, if taken in the most liberal sense, be construed as a "threat to engage in lawful activity," the remainder of Defendant Richeson's communication falls directly within the category of activity which he has specifically been enjoined from participating in pursuant to the TRO. In particular, Defendant Richeson falsely stated that Ms. Speth "posted my criminal record on US News" in an attempt to threaten Plaintiffs into acceding to his demands. Id. With his email, Defendant Richeson attached what he referred to as "Defendants response" to the Verified Complaint. Id. This so-called "response" contains a wide variety of false, unsupportable, and highly inflammatory statements about Plaintiffs, made solely for the purpose of further defaming Plaintiffs in the public record and in the eyes of this Court. While there can be no doubt that Defendant Richeson is entitled to file an Answer to the Verified Complaint, he may not pepper this document with false and defamatory statements about Plaintiffs. Such statements have no place in the public record, let alone in a pleading with this Court. It is clear that Defendant Richeson has made these false statements and has threatened to file these false statements with the Court for the sole purpose of threatening and coercing Jaburg & Wilk to put pressure on Xcentric to remove certain statements from the Ripoff Report website. In fact, Defendant Richeson says as much in his email, stating: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 10297-73/MCS/MCS/831941_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 I have not filed this yet. I will give you and your firm one more chance to walk away from this without a blood bath. 1) Remove my name from every posting on your web site 2) Remove the phrase Click a Nerd, ClickaNerd.com and Shawn Richeson See Exhibit "C." Defendant Richeson then continued to threaten to put Jaburg & Wilk out of business by virtue of the false statements contained within the "response," threatening "When all of your enemies see this and your entire client base finds out what you did, you will lose and lose bad. Gary won't fire you; he will throw you under the bus." Id. His threat did not include a threat to engage in lawful activity, but rather, to file a false and frivolous pleading with the Court for the purpose of creating a public court record of his defamatory statements about Plaintiffs. Each of these statements and threatened activities contained within the September 12, 2010 email from Defendant Richeson has been made in direct violation of the TRO. Defendant Richeson knowingly sent this threatening communication to Plaintiffs. By the September 12, 2010 email, Defendant Richeson also violated the TRO because he caused to be published a false and misleading communication about Plaintiffs. In fact, Defendant Richeson did go through with his threat, and file the proposed "response" with the Court on September 15, 2010. (Doc. No. 15). This filing as well, despite Defendant Richeson's misplaced belief that simply filing a pleading with the Court makes his action "lawful," is again in direct violation of the TRO because it is rife with false and defamatory statements about Plaintiffs published for the purpose of harassing and otherwise damaging the business and reputation of Plaintiffs and, in particular, Jaburg & Wilk. IV. REASONABLE DAMAGES FOR DEFENDANT RICHESON'S CIVIL CONTEMPT IS PAYMENT OF PLAINTIFFS' ATTORNEYS' FEES This Court has the power to adjudge in civil contempt any person who willfully disobeys a specific and definite order of the Court. Shuffler v. Heritage Bank, 720 F.2d 6 10297-73/MCS/MCS/831941_v1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 1141, 1146 (9th Cir.1983). There can be no question that Defendant Richeson has willfully disobeyed, on numerous occasions, the TRO, and therefore, should be adjudicated as being in civil contempt. "To distinguish criminal from civil contempt it is necessary to determine the nature and purpose of the sanction sought and imposed." United States v. Asay, 614 F.2d 655, 659 (9th Cir. 1980). This is especially true where, as here, the contumacious act may be either criminal or civil. Id. (citing In re Stewart, 571 F.2d 958 (5th Cir. 1978); Latrobe v. United Steelworkers, 545 F.2d 1336 (3d Cir. 1976); and Shakman v. Democratic Organization of Cook County, 533 F.2d 344 (7th Cir. 1976), cert. denied sub nom. Chicago v. Shakman, 429 U.S. 858, 97 S.Ct. 156, 50 L.Ed.2d 135). "In a civil contempt proceeding, the contempt must be proved by clear and convincing evidence." Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885 (9th Cir.1982). "Civil contempt in this context consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply." In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir.1993). The contempt " `need not be willful,' " id. (quoting In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir.1987)); however, a person should not be held in contempt if his action "appears to be based on a good faith and reasonable interpretation of the court's order." omitted). The amount of a compensatory contempt fine is in the discretion of the court. U. S. v. United Mine Workers, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947). Sanctions for civil contempt may be imposed to compensate the party pursuing the contempt action for injuries resulting from the contemptuous behavior. Id.; Perry v. O'Donnell, 759 F.2d 702, 705 (9th Cir. 1985). The court's opinion in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975) states that, in civil contempt actions, "a court may assess attorneys' fees ... `as part of the fine to be levied on the defendant.' " 421 U.S. at 258, 95 S.Ct. at 1622 (quoting Fleischmann Distilling Corp. v. Maeir Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 7 10297-73/MCS/MCS/831941_v1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. (internal quotations and citations 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 1407, 18 L.Ed.2d 475 (1967)). Plaintiffs are requesting that, in the event the Court finds Defendant Richeson in contempt, they be awarded, at a minimum, their reasonable attorneys' fees incurred as a result of Defendant Richeson's actions. V. CONCLUSION In view of Defendant Richeson's actions in violation of the TRO, it is appropriate for the Court to order him to appear and show cause why an order of civil contempt should not be issued against Defendant Richeson and to award Plaintiffs their reasonable damages proximately caused by Defendant Richeson's contempt of court. DATED this 29th day of September, 2010. JABURG & WILK, P.C. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 10297-73/MCS/MCS/831941_v1 s/Maria Crimi Speth Maria Crimi Speth David S. Gingras Attorneys for Plaintiffs Certificate of Service I hereby certify that on the 29th day of September, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I have also caused to be delivered to Defendant, who is not registered with the CM/ECF System, a copy of the attached document by First Class Mail and E-Mail: Shawn Richeson 1906 Twilight Drive Killeen, Texas 76543 Shawn@ClickaNerd.com Defendant Pro Per s/Debra Gower

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