Goldsmith, Esq. v. Cooper et al

Filing 11

MOTION for Preliminary Injunction by Plaintiff Jonathan B. Goldsmith, Esq.. Responses due by 11/20/2010. (Attachments: # 1 Exhibit Exhibits 1-3)(Goldsmith, Jonathan)

Goldsmith, Esq. v. Cooper et al

Doc. 11

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MOTN JONATHAN B. GOLDSMITH, ESQ. Nevada Bar No. 11805 9029 South Pecos Road, #2800 Henderson, Nevada 89074 702.386.8637 (phone) 702.385.3025 (fax) In Proper Person UNITED STATES DISTRICT COURT DISTRICT OF NEVADA JONATHAN B. GOLDSMITH, ESQ., an Individual Plaintiff, vs. JORDAN R. COOPER, an Individual; CHERYL COOPER DRISCOLL, an Individual; FACEBOOK, INC.; a Foreign Corporation; DOES 1 through 5 and ROE CORPORATIONS 1 through 5, inclusive, Defendants. MOTION FOR PRELIMINARY INJUNCTION COMES NOW, Plaintiff, JONATHAN B. GOLDSMITH, ESQ. (hereinafter "Plaintiff"), in Proper Person, and moves the Court pursuant to FRCP 65 for a Preliminary Injunction to prevent Defendant JORDAN R. COOPER (hereinafter "Cooper"), Defendant CHERYL COOPER DRISCOLL (hereinafter "Cooper Driscoll"), and Defendant FACEBOOK, INC. (hereinafter "Facebook") from further using Plaintiff's name and likeness to publish discriminatory, slanderous, misleading and false information about Plaintiff. Plaintiff further moves the Court for a Preliminary Injunction to prevent Defendant Cooper and Cooper Driscoll from further stalking and harassing Plaintiff in contravention with Federal law. //// //// //// CASE NO. 2-10-cv-01845-RLH-PAL

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This Motion is based on FRCP 65, the Points and Authorities attached hereto, the exhibits and affidavits attached hereto, the pleadings on file herein and on any oral argument which may be allowed at the time of the hearing on this matter. NOTICE OF MOTION

5 TO: 6 TO: 7 TO: 8 TO: 9 PLEASE TAKE NOTICE that Plaintiff's Motion for Temporary Restraining Order will come 10 on for hearing before the above-entitled court on the ______ day of ___________________, 2010 at the 11 hour of ______ o'clock ___.m. 12 DATED this 3rd day of November, 2010. 13 14 15 16 17 //// 18 //// 19 //// 20 21 22 23 24 25 26 27 28 2 /s/ Jonathan B. Goldsmith, Esq. JONATHAN B. GOLDSMITH, ESQ. Nevada Bar No. 11805 9029 South Pecos Road, #2800 Henderson, Nevada 89074 702.386.8637 (phone) 702.385.3025 (fax) Defendants' Counsel of Record; FACEBOOK, INC.; and CHERYL COOPER DRISCOLL; JORDAN R. COOPER;

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I. FACTS Plaintiff filed a Complaint against Defendants with the Eighth Judicial District Court on or around October 5, 2010 alleging, among other things, several causes of action that rise to defamation of character including: slander, slander per se, libel, libel per se, false light defamation, and invasion of privacy, as well as intentional interference with business relations, intentional infliction of emotional distress, stalking and allege several violations of Federal wiretapping laws. Plaintiff filed his First Amended Complaint for Damages and Injunctive Relief on or around October 27, 2010. See Exhibit 1, pp.1-15. Plaintiff is counsel of record in a domestic case in the Eighth Judicial District Court whereby Defendant Cooper is an opposing party. Plaintiff has had no contact with Defendant Cooper or any Defendant except through his counsel of record in the aforementioned case. Nevertheless, Defendants have consistently and continually committed defamation and privacy violations in addition to several other purposeful tortious acts against Plaintiff through the use of the world wide web and by other means. Specifically, on or around October 1, 2010 at around 3:30 p.m., Defendant Cooper, by means of Defendant Facebook's internet social networking website, published defamatory and demeaning statements specifically directed at Plaintiff which stated: "im on to you jonathan golddick(smith) ha faggot" and further stated "he looks like a pediphile (sic)." See Exhibit 2, pp. 1-2. Further, Defendants published the statement of a Facebook user identified as "Ziles Thomas" which stated: "ha I want to se (sic) what that douche bag looks like." See Exhibit 2, pp. 1-2. Moreover, and in response to "Ziles Thomas'" statement published by Defendants, on or around October 2, 2010 at around 6:10 p.m., Defendant Cooper Driscoll, by means of illegal and tortious invasion of privacy, stole a private photograph depicting the likeness of Plaintiff, and, by means of Defendant Facebook's internet social networking website, published the stolen picture on Defendant Cooper's internet page, which is managed and maintained by Defendant Facebook. See Exhibit 2, pp. 1. Defendants Cooper and Cooper Driscoll made disparaging remarks about the stolen photograph, and Defendant Cooper Driscoll acknowledged that Defendants had committed unlawful and tortious behavior by posting the following statement: "delete that picture already." See Exhibit 2, pp. 1. 3

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Defendant Cooper has engaged in a pattern of stalking against Plaintiff. In around August 2010, Plaintiff observed Defendant's yellow Ford Mustang with black stripes, with the license plate "Sage 3", parked outside of Plaintiff's law office located at 1212 South Casino Center Boulevard in Las Vegas, Nevada. After being aware of Cooper's stalking, Plaintiff observed Cooper's yellow mustang driving by Plaintiff's office several times in around August 2010. Additionally, after Plaintiff moved offices to 9029 South Pecos Road, #2800, Henderson, Nevada 89074, Defendant Cooper has driven by and appeared several times at Plaintiff's new office located in Henderson, Nevada while driving a new model red Ford Mustang bearing the licence plate "Sage 3." The pattern of stalking occurred at Plainitff's Henderson office approximately 10 times in September and October 2010. Several times, between September 28, 2010 and October 7, 2010, at around 5:006:00 p.m., Plaintiff observed Defendant Cooper in front of Plaintiff's office heading north to south. On another occasion, on or around October 8, 2010, at approximately 5:30 p.m., Plaintiff observed Defendant Cooper pass up and back by Plaintiff's office three times heading north to south, south to north, and north to south respectively driving a red Ford Mustang bearing the license plate "Sage 3." Defendant Cooper Driscoll has also engaged in a pattern of stalking against Plaintiff. Specifically, Defendant Cooper Driscoll created a false profile on Defendant Facebook's website using a false name and false picture, in order to gain access to Plaintiff's personal and private information. See Exhibit 3, pp. 1. On or around October 21, 2010, Defendant Facebook removed the present case to Federal Court, thereby barring Plaintiff's Motion for a Preliminary Injunction on an Order Shortening Time, which was scheduled for October 25, 2010, from being heard. As a result, Plaintiff continues to suffer irreparable harm. Plaintiff filed an Ex Parte Motion for a Temporary Restraining Order and Application for a Preliminary Injunction on an Order Shortening Time on or around October 25, 2010. On or around November 1, 2010, the Court denied Plaintiff's Ex Parte Motion for a Temporary Restraining Order and Application for a Preliminary Injunction on an Order Shortening Time on the basis that Plaintiff has had ample time of which to put Defendant's on notice of Plaintiff's motion. Therefore, the Court found that Plaintiff did not meet his burden filing the Motion under ex parte seal. As a result, Plaintiff now files his Motion without ex parte seal, giving due notice to Defendants. 4

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II. LEGAL ARGUMENTS LEGAL STANDARD FOR PRELIMINARY INJUNCTION A preliminary injunction is available if an applicant can show a likelihood of success on the merits, a likelihood that the non-moving party's conduct, if allowed to continue, will cause irreparable harm for which a compensatory damage is an inadequate remedy, the balance of equities tips in their favor and that the injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008). B. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS 1. Defendants Statements Constitute Slander and Libel Per Se

As explained above, Defendants published statements about Plaintiff, including that Plaintiff is a "faggot" and a "pedophile" which constitute slander and libel per se. On that cause of action alone, Plaintiff is extremely likely to succeed on the merits. These statements impute the violation of a crime on behalf of Plaintiff as well as impede Plaintiff's business. Therefore, Plaintiff is highly likely to succeed on the merits against Defendants. 2. Defendants Actions Constitute Invasion of Privacy

As discussed, Defendant Cooper Driscoll caused to be published a personal and private photograph depicting the name, image and likeness of Plaintiff along with disparaging statements coinciding with the stolen picture. Plaintiff is highly likely to succeed on the merits against Defendants for invasion of privacy, slander and libel per se, as well as all other alleged torts. 3. Defendant Facebook Facilitated and Published all Alleged Statements

With regard to all allegations related to torts committed against Plaintiff over the internet, Defendant Facebook facilitated, published or neglected to mitigate the defamatory and harassing statements and comments published by Defendant Cooper and Defendant Cooper Driscoll. In addition, Facebook failed to mitigate a serious privacy concern that was used by Defendants to commit wiretapping violations. As discussed, Plaintiff is likely to succeed on the merits against the other Defendants, and, therefore, Plaintiff is likely to succeed on the merits against Defendant Facebook given that all alleged statements were published and maintained on internet servers owned and controlled by Defendant Facebook in contravention with Federal law. 5

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4.

Defendant Cooper has engaged in a pattern of stalking against Plaintiff

Defendant Cooper's action constitute several other torts and crimes including libel, false light defamation, and invasion of privacy, intentional interference with business relations, intentional infliction of emotional distress, negligent infliction of emotional distress, harassment, stalking and several violations of Federal wiretapping laws. Plaintiff has personally witnessed several occasions of Defendant's stalking at multiple locations including two of Plaintiff's law offices. Plaintiff has been the victim of constant stalking by Defendant Cooper. Plaintiff has further fallen victim to Defendant Cooper Driscoll's stalking over the Internet. Therefore, Plaintiff is highly likely to succeed on this claim. C. PLAINTIFF IS BEING IRREPARABLY DAMAGED BY DEFENDANTS' ACTIONS Defendants have, and upon information and belief, will continue to use Defendant Facebook's internet site to publish false and defamatory statements about Plaintiff. Plaintiff, who is an attorney in the State of Nevada runs an operates a law firm in the State. Much of Plaintiff's business is dependant on the public's view of Plaintiff's moral character, reliability and reputation. Defendants' actions have already, and will likely continue to demean and diminish Plaintiff's reputation in the legal community as well as with Plaintiff's personal social community. Without the issuance of an injunction, Defendants will continue to have free reign to defame and diminish Plaintiff's reputation. Especially with the institution of the present lawsuit, Plaintiff will continue to be irreparably harmed both personally and professionally. Therefore, the issuance of an injunction is proper. CONCLUSION Based on the above Points and Authorities and the attached exhibits Plaintiff has shown that it is entitled to a preliminary injunction preventing Defendants from further using Plaintiff's name and likeness to publish discriminatory, slanderous, misleading and false information about Plaintiff and preventing Defendants from further stalking and harassing Plaintiff in contravention with Federal law. DATED this 3rd day of November, 2010. /s/ Jonathan B. Goldsmith JONATHAN B. GOLDSMITH, ESQ. Nevada Bar No. 11805 9029 South Pecos Road, #2800 Henderson, Nevada 89074 6

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AFFIDAVIT OF JONATHAN B. GOLDSMITH, ESQ. STATE OF NEVADA ) ) ss: COUNTY OF CLARK ) JONATHAN B. GOLDSMITH, ESQ., having been first duly sworn, deposes and says: 1. I filed a Complaint against Defendants with the Court on or around October 5, 2010 alleging, among other things, several causes of action that rise to defamation of character including: slander, slander per se, libel, libel per se, false light defamation, and invasion of privacy, as well as intentional interference with business relations, intentional infliction of emotional distress, stalking and alleged several violations of Federal wiretapping laws.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. demeaning statements specifically directed at me which stated: "im on to you jonathan golddick(smith) ha faggot" and further stated "he looks like a pediphile (sic)." Defendants published the statement of a Facebook user identified as "Ziles Thomas" which stated: "ha I want to se (sic) what that douche bag looks like. 7 5. 4. Nevertheless, Defendants have consistently and continually committed defamation and privacy violations in addition to several other purposeful tortious acts against me through the use of the world wide web and by other means. On or around October 1, 2010 at around 3:30 p.m., Defendant Cooper, by means of Defendant Facebook's internet social networking website, published defamatory and 3. 2. I am the counsel of record in a domestic case in the Eighth Judicial District Court whereby Defendant Cooper is an opposing party. I have made no contact with Defendant Cooper or any Defendant except through his counsel of record in the aforementioned case.

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On or around October 2, 2010 at around 6:10 p.m., Defendant Cooper Driscoll, by means of illegal and tortious invasion of privacy, stole a private photograph depicting the likeness of me, and, by means of Defendant Facebook's internet social networking

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 September and October 2010. 21 22 23 24 25 26 heading north to south, south to north, and north to south respectively driving a red 27 28 Ford Mustang bearing the license plate "Sage 3." 14. 13. Several times, between September 28, 2010 and October 7, 2010, at around 5:00-6:00 p.m., I observed Defendant Cooper in front of my office heading north to south. On another occasion, on or around October 8, 2010, at approximately 5:30 p.m., Plaintiff observed Defendant Cooper pass up and back by Plaintiff's office three times 12. 11. at 1212 South Casino Center Boulevard in Las Vegas, Nevada. Additionally, after I moved offices, Defendant Cooper has driven by and appeared several times at my new office located in Henderson, Nevada. The pattern of stalking occurred at my Henderson office approximately 10 times in 9. 10. committed unlawful and tortious behavior by posting the following statement: "delete that picture already." Defendant Cooper has engaged in a pattern of stalking against me. In around August, 2010, I observed Defendant's distinct yellow mustang with black stripes, with the license plate "Sage 3", parked outside of Plaintiff's law office located 8. website, published the stolen picture on Defendant Cooper's internet page, which is managed and maintained by Defendant Facebook. Defendants Cooper and Cooper Driscoll made disparaging remarks about the stolen photograph, and Defendant Cooper Driscoll acknowledged that Defendants had

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Defendant Cooper Driscoll has also engaged in a pattern of stalking against me. Defendant Cooper Driscoll created a false profile on Defendant Facebook's website using a false name and false picture, in order to gain access to my personal and

4 5 6 7 8 9 /s/ Jonathan B. Goldsmith, Esq. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 JONATHAN B. GOLDSMITH, ESQ. private information. Further affiant sayeth naught. Executed on: 11/3/10