Tuesday, December 18, 2012

Nathan Winograd's Great Myths of No Kill

Ignored and Forgotten victims of Nathan's World
From
Nathan Winograd, Director of the No Kill Advocacy Center

It is the season of giving. But be careful.
Winograd’s claim to fame evolves around attacking the animal protection community through distortions that ultimately cause great animal suffering. It is simply disingenuous for anyone claiming to be an expert on animal issues to ignore the role HSUS plays in passing laws that further regulate puppy mills, close loopholes that allow dog fighters to continue their sport along with a number of shelter support programs that help many communities get control over their pet overpopulation issues.


To be clear, Winograd’s lust for selling books has allowed him to accept cash donations from breeder support groups, give no kill speeches at dog shows and support even more breeding with his incredibly na├»ve and dangerous mantra that "pet overpopulation is a myth". Espousing such ignorant views only serves to enable MORE breeding not less. Nathan Winograd does not reflect the values of the rescue community – he simply expects the rescue community to continue to fund the rescue of millions of dogs and cats who should have never been bred in the first place.

His list of supporters includes some of the seediest names in irresponsible breeding including groups that lobby in opposition to closing the loopholes that provide minimal standards for the victims of puppy mill abuse. To be clear most of Winograd’s most vocal supporters DO NOT RESCUE, yet many DO BREED.

Please don’t be fooled by a sheep in breeders clothing. Groups like HSUS are not the enemy – breeder apologist like Nathan Winograd are enemies to all abused neglected animals who continue to be part of a much larger pet overpopulation crisis wasting away in the same puppy mills Winograd is prepared to ignore.

Donate to your local rescue groups who foster animals for sure but don’t forget the victims of dog fighting abuse or puppy mill abuse that Winograd seems so willing to ignore.
Nathan Winograd would love to have you forget about the silent screams of victims of animal exploitation but it is not the animal protection community who is abusing and killing our companion friends - it's Winograd's legion of breeder supporters who are responsible for that abuse.

Rescue friends of animals do not support the breeder enabling excuses of "no kill" - we support building a no suffering - no kill nation to end that suffering at the hands of the abusers.

Saturday, December 15, 2012

Florida Case Law on Defamation and Tortious Interference


The Scales of Justice is a legal term that means the fair and equal representation of the law. This representation should be free from prejudice, favor, greed or corruption.

Justice is supposedly blind, impartial and powerful.  The Scales of Justice is a concept within the legal system that represents equality. Ideally, all cases are supposed to start off balanced and then tip to one direction or the other.
 
Of the utmost in ensuring the integrity of the court is following case law in determining guilt or innocence.
 
Here is a synopsis of the Florida Case Law on Defamation and Tortious Interference. 

This lawsuit is a classic example of a wealthy corporation No Kill Nation, Inc attempting to use the burden and expense of litigation to silence a legitimate "whistleblower demand" and consumer advocate while stifling free speech. To state a valid claim for defamation under Florida law, a plaintiff must plead actual damages. By failing to identify a single customer affected as a result of defendant’s alleged defamatory statements, Plaintiff failed to state a cause of action for the defamation.

Similarly, Plaintiff also fails to state a cause for tortious interference. It is also well established under Florida law that a plaintiff claiming tortious interference must identify the agreement or specific customers allegedly interfered with. Furthermore, the alleged defamatory statements at issue in this case are simply nonactionable, protected as privileged under Florida defamation law. This Court should put an immediate halt to plaintiff’s attempts to use expensive litigation to silence a renowned animal advocacy writer and critic, and should have dismissed this baseless action.

I. Applicable Standard and Role of the Court on Motion to Dismiss Defamation ClaimAlthough truth is a complete defense to a libel action, it is the plaintiff who bears the burden of proving that the challenged statement is both defamatory and false, essential elements of any libel claim. Hammond v Times Publishing Co, 162 So.2d 681, 682 (Fla 2nd DCA 1964), citing, McCormick v. Miami Herald Publishing Co., 139 So2d. 197, 200 (Fla 2d DCA 1962). A defamatory statement is not actionable if the plaintiff cannot allege and prove it is false and thus not even "substantially true."

Further, words are "defamatory" only if "they charge a person with an infamous crime or tend subject one to hatred, distrust, ridicule, contempt or disagree or tend to injure one in one’s business or profession. Seropian v Forman, 652 So.2d 490, 495 (Fla 4th DCA , 1995); Copper v Miami Herald Pub Co., 31 So.2d 382, 384 (Fla 1947 (accord). The trial court performs a "prominent function" in determining whether or not an allegedly false statement is defamatory. Byrd v Hustler Magazine, Inc, 433 So.2d 593, 595 (Fla 4th DCA 1983). The court is too closely review the allegedly false statements in the context in which it was published to decide whether a factfinder could reasonably determine the statement(s) to be defamatory. Id. The statement is to be viewed in the context and "not by extremes, but as the common mind would naturally understand it." Id.

This trial court should have dismissed the libel claim if challenged statement "is not susceptible to a defamatory meaning."

Smith v Cuban American Nat. Foundation, 731 So.2d 702, 707 (Fla 3rd DCA 1999): Keller V Miami Herald, 778 F.2d 711, 714-715 (11th Cir. 1985)

II. Plaintiff Fails to State a Cause of Action for Defamation Because Plaintiff Failed to Plead Actual Damages

Proof of "actual damage" is an essential element of a defamation action under Florida law. Edelstein v WFTV, Inc., Inc. 798 S0.2d 797, 798 (Fla. 4th DCA 2001) (affirmimg trial court’s dismissal of defamation action where failed to plead actual injury); Anheuser-Busch, Inc. v Philpot, 317 F.3d 1264, 1266 (11 Cir. 2003) (citing Miami Herald Publ’g Co v Ane, 423 So. 2d 376, 388 (Fla. DCA 1982). Defendant’s actions caused no actual damage to Plaintiff. Plaintiff cannot plead or prove otherwise. Plaintiff has not shown – and cannot show – any specific business arrangement that was negatively impacted as the results of the defendants actions. In addition, Plaintiff cannot show it lost any specific customers as a result of the alleged defamatory statements.

Plaintiff’s failure to plead actual damages as required by Florida law is plainly due to the fact that no damage actually occurred. Therefore, the defamation claim can not stand as a matter of law. This court erred in not dismissing the Plaintiff’s Complaint in its entirety lacking merit.
 
III The Complaint fails to Plead the Alleged Defamatory Statements with Specificity

The court erred in not dismissing Plaintiff’s Complaint because it fails to plead the actual defamatory statements at issue verbatim or with sufficient particularity as required by Florida law. See e.g. Orlando Sports Stadium, Inc v Sentinel Star Co., 316 So.2d 607, 610 (Fla 4th DCA 1975); Gannett Florida Corp. v. Montesano, 308 So.2d 599 (Fla 1st DCA 1975); Cooper v. Miami Herald Publishing Co., 31 So.2d 382 (Fla. 1947) (alleged defamatory words should be set out in the complaint for the purpose of fixing the character of the alleged libelous publication in context). The Complaint generally summarizes only one statement alleged to be defamatory with any particularity but claims that this one statements is one "among" other statements at issue.

Plaintiff’s Complaint thus violates the pleading requirements for defamation actions under Florida law, and fails to properly provide defendant with notice of which statements are sued upon. Accordingly, the court erred in not dismissing the entire complaint.

In fact, the court erred in not holding evidentiary hearings proving alleged statements were written by defendant. Instead, trial judge simply assumed these statements were written and that the statements themselves were accurately portrayed by the Plaintiffs’ Defendant has repeatedly denied making these statements as written or that the statements themselves when taken in context are true and not defamatory as Florida law also requires.
  1. Defendant Cannot Be Liable under Florida Law for Defamation Because Statements are Privileged
The qualified privilege for private citizens to report "whistleblower" information received from reliable sources is designed the public from reporting alleged criminal activity from liability even if those reports contain minor inaccuracies. 

Defendant merely demanded an accounting for funds collected that Plaintiff’s refused to release.

It strains credibility to believe Plaintiff’s allegation that it somehow suffered damages as the result of defendants publications when Plaintiff’s could have prevented the publications from being written by simply sharing transparently an accounting for the Everglades Project as promised and as the law and rules for non profits require.

Because Defendants statements were privileged under free speech and whistleblower protection, Plaintiff’s defamation claim fails as a matter of law. 
  1. Plaintiff Failed to State a Claim for Tortious Interference Because Plaintiff Failed to Identify the Specific Customers Who Were the Subject of the Alleged Interference.
    To state a claim for tortious interference under Florida law, a plaintiff must identify the specific customers who were the subject of the alleged interference. Sarkis v Pafford Oil Co., 697 So. 2d 524, 526 (Fla. 1st DCA 1997) (holding that trial court properly dismissed claim for tortious interference because plaintiff’s failed to identify the customers who were subject of the interference). 

    In Bortell v. White Mountain Ins. Group, Ltd., 2 So.3d 1041. 1048 (Fla. 4th DCA 2009), the Fourth District Court of Appeal held that the plaintiff failed to state a cause of action for tortious interference because the plaintiff failed to identify with any specificity the parties who were the subject of the alleged interference. In Bortell, the plaintiff alleged only that the defendant interfered with plaintiff’s advantageous business relationship with a group of "finite marine clients," but failed to either define the group or name a single individual with whom plaintiff claimed an advantageous relationship. Id The courts in both Sarkis and Bortell relied upon the Florida Supreme Court’s ruling in Ethan Allen Inc., v. Georgetown Manor, Inc., 647 So.2d 812 , 815 (Flo. 1994) in which the Court stated that an action folr tortious interference with a business relationship requires "a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered." See also Baylee Products, Inc v. Cole, 720 So.2d 550, 551 (Fla 4th DCA 1998)(reversing trial court and remanding for a directed verdict on tortious interference claim based on plaintiff’s failure to present any evidence connecting loss of business to an alleged tortious conduct).
     
    Standards for permanent injunctions

    To establish the tort of interference with a business relationship, the plaintiff must prove a business relationship with identifiable customers. Therefore, to establish an action for tortious interference with a business relationship, a plaintiff may allege interference with a present or prospective customer, but no action exists for tortious interference with a past customer or to the community at large. Additionally, a mere speculative hope of a future business is not sufficient to sustain the tort of interference with a business relationship.

    Plaintiff failed to identify any understanding or agreement with which defendant allegedly interfered nor did Plaintiff provide any specific customers it lost because of the defendant’s actions. Plaintiff only alleges "defendant interfered with plaintiffs existing and prospective business relationships, with the intent to harm Plaintiff’s business" and that "defendant acted with malice and without privilege, in furtherance of an intent to damage and interfere with Plaintiff’s business.

    Plaintiff fails to identify the specific understanding or agreement interfered with as well as any specific customers – existing or prospective – lost by Plaintiff as the result of defendants actions. Plaintiff cannot properly bring an action for tortious interference against the defendant based on speculative and conjectural claim that defendant’s actions somehow harmed Plaintiff’s relationship with an unidentifiable group of customers, particularly those with which Plaintiff has NEVER done business. As the case law clearly demonstrates, a plaintiff cannot recover damages under the theory of tortious interference without identifying the specific customers adversely affected.

    Therefore, this court erred by not dismissing Plaintiff’s claim for tortious interference.


  1. The State of Florida Does Not Recognize the Tort of False Light
Plaintiff’s Complaint improperly seeks to plead a claim for "false light" defamation, despite the fact that the tort of "false light" defamation is not recognized as a viable cause of action in the State of Florida. Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1115 (fla 2008)("in conclusion, we decline to recognize false light as a viable cause of action in this state") Plaintiff alleges defendants actions depicts No Kill Nation in a "false light". To the extent Plaintiff is arguing in support of the tort in false light, Plaintiff is arguing a position that is nor supported by application of existing law to the material facts. In fact, Plaintiff’ refers to a tort that has been unequivocally rejected by the highest court in the state, the Florida Supreme Court.

Based on Florida Supreme Court’s ruling in Jews for Jesus, Inc, Plaintiff cannot do an "end run around" the established requirements for a defamation claim by arguing the tort of false light.
  1. Complaint Should Also Be Dismissed Because The Complaint Improperly Seeks To Enjoin Free Speech – A Prior Restraint
Plaintiff’s Complaint specifically requests an injunction preventing defendant from further reporting on Plaintiff. The Supreme Court of Florida – as with virtually every court in the land.—has specifically held that a court may NOT enjoin speech, even alleged false speech, since to allow such injunctions would be unconstitutional prior restraint on speech. See e.g. Moore v City Dry Cleaners & Laundry, 41 So.2d 865 (Fla 1949); Reiter v. Mason, 563 So.2d 749 (Fla. 3d DCA 1990); Animal Rights Fund of Florida, Inc v Siegel, 867 So.2d 451 (Fla. 5th DCA 2004)(defamation may not be enjoined): Miami Herald Pub Co. v. Morphonios 467 So.2d 1026 (Fla. 3d DCA 1985).

Plaintiff’s Complaint seeking to enjoin defendant from continued reporting about Plaintiff is without basis in law or fact, is not supported by the application of existing law to those material facts, and must be dismissed as well.

Defendant Closing
 
Our legal system depends on the integrity of individual members of the bar and bench to follow the rules, ethics and codes of the legal profession and the judiciary.

While the law firm of Tripp Scott advertises its firm as legal representation with "Experience You can Trust" it appears that experience and integrity has broken down. Attorney Ryan Lehrer has repeatedly flaunted the integrity of the court process with false innuendo and false statements submitted to this court in a frivolous lawsuit.

The practice of law is a profession the purpose of which is to supply disinterested counsel and service to others using independent professional judgment. Attorney Ryan Lehrer’s exercise of independent professional judgment in this case is materially limited by his own interest and conflict. For an attorney to flagrantly submit falsified documentation and immaterial allegations in an attempt to cover up alleged criminal activity by his client is not only immoral and unethical but could be illegal as well.

One needs only to consider the numerous personal attacks and libelous comments made by the plaintiff in this case to point out the litigation was initiated by the plaintiffs for what appears to be a personal vendetta.

The real losers in this process are the courts and the taxpayers in Broward County. Our citizens deserve better than this type of unethical behavior from THEIR court system.

Attorney Ryan Lehrer has brought discredit to the practice of law.

In allowing this court process to mutate into a personal vendetta launched by the plaintiff that lacks any evidence to support the allegations Judge Eileen O’Connor shares the responsibility of discrediting the court process.

When the court system gangs up on a disabled senior citizen only interested in exposing criminal charity fraud something is wrong with Broward County’s civil court system and the Florida Bar. I stand by that statement.

When Judge O’Connor and Attorney Lehrer made the conscience decision to attack a citizen with a disability recognized under the American Disability Act the morality of such choices taints the judicial fairness process that demands all citizens be treated fairly and provided the due process spelled out in the law.

Defendant maintains his right to exercise his free speech in writing on animal welfare issues. Charity fraud is a crime with victims. As such, articles that address charity fraud are written and shared in the public interest. Any attempt at censoring such articles clearly is a violation of the basic tenant of free speech with which the defendant has no intention of complying.

We do not live in a society where the extremely wealthy can manipulate the court to protect themselves from potential criminal activity through misuse and abuse of the civil court process.

As citizens and advocates in this great free society we must be mature and patient enough to understand that true progress requires maintaining a professional and respectful approach in offering solutions to our nation’s animal welfare issues.

In the words of Thomas Jefferson "This institution will be based on illimitable freedom of the human mind, for here we are not afraid to follow the truth wherever it may lead, nor tolerate any error so long as reason is left free to combat it".

Whereas, Defendant Randal DeCarlo, specifically request this court to exercise it’s duty to its’ citizens by dismissing this case in it’s entirety, with prejudice, and to award such other and further relief as it may deem appropriate and just.