US Appeals brief regarding Varian's prior restraint of free speech:
"REPLY BRIEF FOR APPELLANT, MARY DAY
DISCUSSION & AUTHORITIES
The District Court noted in the proceedings below that it was troubled by the Plaintiffs' propensity to "embellish the facts" of this matter. (CR p. 2186) It is apparent from the Plaintiffs' brief that they have continued their practice of embellishment, for many of the statements they make in their opening brief concerning the record before this Court are, put simply, untrue. Additionally, the authorities relied upon by Plaintiffs are, to a great extent, inapposite.
Throughout their brief, the Plaintiffs argue that the injunction at issue in this appeal was merely a "clarification" of a previously entered injunction. (See, e.g. Plaintiffs' brief on appeal, page 1) This is clearly not the case. The injunction at issue is not part of any order, it is a separate document entitled Modified Preliminary Injunction. The injunction at issue here expressly states, "A modified preliminary injunction, superceding the injunction filed by the Court on June 21, 1999, is hereby issued against Defendants, Michael Delfino and Mary E. Day, their officers, agents, servants, employees, attorneys ..." (See CR page 798, [underlining added]) If the District Court were simply "clarifying" the injunction previously entered against Defendant, MICHELANGELO DELFINO (hereinafter "DELFINO"), it would have so stated and not expressly made an order that its Modified Injunction superceded the previous injunction.1
1. It should be noted that the initial injunction was entered at a time when Defendant, MARY DAY (hereinafter "DAY") was not even a party to the underlying action.
Plaintiffs argue that they amended their Complaint twice to substitute parties, add a cause of action for breach of contract and "allege tortious conduct by DELFINO and DAY that occurred after the filing of the original Complaint." (See Plaintiffs' brief on appeal, page 3) As the record reveals, the Plaintiffs' First Amended Complaint was filed on April 14, 1999. (CR pp. 50-82) Defendant, DAY was not named as a party nor was she substituted in as a party in the First Amended Complaint. In fact, the record reveals that DAY was not named a party until she was served with the Plaintiffs' Second Amended Complaint which was filed on July 16, 1999.
What the Plaintiffs consistently did in the underlying action and continue to do in their brief on appeal is to lump DELFINO and DAY together - to claim that whatever DELFINO did - DAY did. They do this despite the fact that, as will be seen infra, they have no evidence supporting allegations that DAY directly or indirectly posted any messages which were unlawful or, for that matter, any messages at all of any character or at any time before August 13, 1999, a month after she was named as a party Defendant. DAY submits that this practice employed by Plaintiffs of making unsupported statements of what they contend are facts and then misciting the record, helped to induce the District Court to erroneously enter injunctive relief against DAY without notice.
Some examples of this practice of Plaintiffs in the instant proceedings is evident in their brief. On page 6, the Plaintiffs, citing portions of the underlying record, state that while at VARIAN, DELFINO and DAY "worked closely with each other and spent much of their free time together." A review of those portions of the underlying record cited by Plaintiffs does not support that statement.
Another example is how the Plaintiffs use as a basis for bringing in DAY as a party Defendant two bits of what they call evidence. First, they argue that just about the time that DELFINO was notified that he was being sued by the Plaintiffs and that injunctive relief would be sought, DAY disposed of her personal computer which DELFINO used to access the Internet. The Plaintiffs fail to note that DAY testified that the computer had not worked properly for some time although DAY had taken it in for repairs many times, that DAY did not know to what use DELFINO and her children put the computer when getting on the Internet and that the day Defendant gave it away to Good Will was her Birthday. The other bit of so-called evidence is the infamous Kinko's videotape. The Plaintiffs claim that the tape shows DELFINO using an Internet accessible computer at Kinko's when an alleged defamatory message was posted from the same location and that DAY was "...sitting at DELFINO's side staring intently at the screen as he works on the computer." (See Plaintiffs' brief on appeal, page 15) In fact, the video does not show that at all. What the video shows was described for the District Court during proceedings below. The record directly contradicts the Plaintiffs' statement in their brief. (See CR pp. 819-826) The videotape shows that DAY at timeshad her back to DELFINO, never touched the keyboard, and at times appeared to be sitting next DELFINO, that is all. For a few seconds DAY is seen looking at the screen, but, of course the entire sequence only lasted a few minutes.
Thus, the only evidence that the Plaintiffs could bring to bear to show that DAY allegedly acted as a co-conspirator of DELFINO's, as Plaintiffs have alleged and argue before this court, is that DAY gave away a balky computer on her birthday and that she was present at Kinko's. Despite their repeated statements in their brief that "DELFINO and DAY did this...." and "DELFINO and DAY did that...." Plaintiffs have no evidence of such and the record does not support any such statements.
The Plaintiffs argue throughout their brief that the District Court found "by clear and convincing evidence" that DAY had acted in concert with DELFINO. Of course, the District Court did not have before it any opposition filed by DAY since it had not ordered that she file any as it had the other parties. Indeed, the only evidence that the Court could have had before it even without DAY'S opposition because it is the only so-called evidence in existence was the balky computer being donated to Good Will by DAY and that she was present at Kinko's when DELFINO allegedly sent a defamatory message. How that rises to the level of clear and convincing proof is anyone's guess.
One of Plaintiff's more ingenious arguments on appeal is that DAY waived her right to argue that she was not given notice and an opportunity to be heard below because she filed no opposition to the injunction. Plaintiffs argue that DAY should have filed some opposition notwithstanding the scheduling orders of the District Court.
The District Court's local rule, Rule 7-2 provides that "Except as otherwise ordered or permitted by the assigned Judge or by these local rules, ...[hearings are to be set] not less than 35 days after service of the motion." In this case, not only did the District Court specially set the hearing and briefing schedules, apparently the Plaintiffs did not inform the District Court exactly what motion they were bringing. This was evidenced by the Court's first scheduling order dated September 22, 1999. (See CR pp. 138-139) In the scheduling order the Court notes that by virtue of letters received from Plaintiffs' counsel, it appears DELFINO may have been continuing to violate the preliminary injunctive order previously made against him. On that date, September 22, 1999, the Court set a hearing date of October 15, 1999, for a hearing at 9:00 a.m. on whether or not Mr. DELFINO should be held in civil contempt and what remedy would be appropriate to compel his future compliance with the preliminary injunction. The Court set a date of September 28, 1999, for the Plaintiffs to file a specific motion supporting the request for civil contempt and gave DELFINO until October 5, 1999, to respond. The dates set by the District Court are far afield from the normal dates when no special setting takes place. Nowhere is it mentioned that DAY is to file anything nor is there any indication that the District Court had been apprised of Plaintiffs' attempt in the motion to seek preliminary injunctive relief against DAY for the first time. The Court set no hearing date for consideration of injunctive relief.
In the District Court's second scheduling order (See CR 141) the Court reset the hearing on the Motion to find DELFINO in contempt and modified the September 22, 1999, order by giving the Plaintiffs until October 5,1999, to file any specific motion supporting the request for civil contempt and then by giving Defendant, DELFINO, until October 12, 1999, to respond. The Court then set the motion to be heard at 9:00 a.m. on November 5, 1999. DAY again is not called upon to file any opposition brief.
Nowhere in any of these scheduling orders is it indicated that the Court wanted opposition from DAY. DAY was entitled to rely on the orders of the Court since the motion was being set specially and on short notice. If the Court had wanted DAY to oppose the motion to find DELFINO in contempt, which, it should be noted, does not mention DAY in its heading, but simply buries the request for preliminary injunctive relief against DAY in the body of the motion, it would have so ordered. Day was entitled to rely on the orders of the District Court in light of Rule 7-2 where the District Court was specially setting the hearing and setting special briefing dates on the motion. She did not believe nor would she that the Court expected her to file an opposition to the motion for civil contempt. If the Court had wanted opposition from DAY, it would have and should have notified her rather than simply going ahead and granting injunctive relief against her.
Even if the District Court was mislead by Plaintiffs initially it should have notified DAY that the scheduling orders it had previously made included her or given her notice that she needed to file an opposition brief once the motion was filed. It was not incumbent on DAY to ignore the scheduling orders of the District Court and go ahead and expend, needlessly, attorneys fees to file an opposition brief where the District Court had not told her any was necessary. It can well be imagined by this Court the amount of money that has been expended by DAY in defending herself against the meritless claims in the underlying action made by Plaintiffs in the underlying action against her. Needlessly filing papers with the District Court in opposition to motions where the District Court itself had stated in two orders that none were necessary would be best characterized the worst padding of fees by an attorney imaginable. After all, it is the District Court that decides what it will or not hear and who should or should not file papers. In this case, it made itself perfectly clear by setting forth exactly what it would be deciding and directing, specifically, who would be opposing the motion and when that opposition would be due. The Court never gave DAY a chance to oppose the motion by virtue of leading her to believe it was not going to consider injunctive relief against her since that was the only part of the motion that pertained to DAY.
The modified preliminary injunction entered against DAY is, contrary to argument made by Plaintiffs, on its face, an unconstitutional prior restraint on free speech. Even a cursory review of the modified preliminary injunction reveals that the Court was enjoining the Defendants from saying that one of the Plaintiffs was a "non-technical person" or that he was "overweight". (See CR p. 799) It is apparent that the District Court adopted wholesale the injunctive relief requested by Plaintiffs without scrutiny. How any District Court or any state Court for that matter could enter injunctive relief prohibiting someone from calling someone else "non-technical" or that they are "overweight" is simply beyond DAY's comprehension. If that were the case, then virtually anyone could be so enjoined successfully. Unpopular people and even hecklers are protected from injunctive relief when exercising their rights of free speech. (See Chico Feminist Womens Health Center v. Scully (1989) 208 Cal.App.3d 230; San Diego Unified Court District v. U.S. Citizens Patrol (1998) 63 Cal.App.4th 964)
The District Court set out the cases which it relied in determining that the injunctive relief it was imposing was not unconstitutional in its original grant of a preliminary injunction against DELFINO (See CR pp. 86:18 - 87:3) It apparently relied on those cases in entering the Modified Preliminary Injunction at issue here on appeal for it set forth no further legal justification. Unfortunately, the cases used by the District Court do not stand for the propositions stated by the District Court (See CR 86:18-87:3)
The District Court stated that DELFINO was not entitled to First Amendment projections for false statements of fact or defamatory materials citing Keeton v. Hustler Magazine, Inc. (1980) 465 US 770, 776. (CR pp. 86:18-21) The Keeton case was a case presenting an issue of personal jurisdiction, not First Amendment rights. At the cited page there is no statement or holding of the Court that First Amendment protection is not available in defamation action, but merely a discussion ofstates' interests.
The District Court next wrote that to the extent DELFINO'S speech was commercial, he did not enjoy First Amendment protection, citing Central Hudson Gas v. Public Service Comm's of NY (1980) 447 Us 557, 563. (CR pp. 86:21-:24) Rather than standing for the proposition set forth by the District Court the Central Hudson Gas case stands for just the opposite. That is, at the cited page the Court held that the Constitution does protect commercial speech, albeit to a lesser extent than non-commercial speech. The protection available turns on the nature of the expression and governmental interests served by its regulation. Of course, thr District Court in this matter ultimately later found that there was no commercial speech as there was no competition between the defendants and the Plaintiffs. (See Order Granting Partial Summary Judgment, CR pp. 847-857)
The District Court finally cited Grayned v. City of Rockford, Ill. (1972) 408 US 104, 116-117 for the proposition that the reasonable manner of restriction placed on DELFINO did not violate the First Amendment. (CR pp. 86:24-87:3) The Grayned case wasa case presenting issues of demonstrators outside a high school. The Court overturned the anti-picketing ordnance at issue on First Amendment grounds (id. at 115-116) and only upheld the anti-noise ordnance at issue in the case.
What happened here to Defendant, DAY, is, put simply, a miscarriage of justice. As a result of the Plaintiffs continually lumping DAY with DELFINO in describing and arguing before the District Court, to wit, that anything DELFINO did DAY did, the District Court was lulled into believing that, in fact, such was the case, especially when DAY was not given an opportunity to voice her opposition. When DAY was given such an opportunity and pointed out to the District Court that she and Defendant, DELFINO, were not one and the same and were not joined at the hip, she prevailed while Defendant, DELFINO, lost. That is, as a review of the record below reveals, the Plaintiffs brought yet a third motion for injunctive relief and temporary restraining orders. (CR pp. 858-1962) As Defendant, DAY's, opposition sets forth, what DELFINO did was exactly that, what DELFINO did. She presented evidence which unequivocally established that she did not engage in any of the alleged conduct, that such had never been the case and she should, therefore, not be subject to any sort of a restraining order. (See DAYís opposition, CR pp. 1963-2177) While the District Court granted a temporary restraining order against DELFINO, it denied Plaintiffs' motion as to DAY. (See CR pp. 2186-2191) That is the first and only time that DAY was allowed to oppose any request for any injunctive relief in the underlying action.
In fact, contrary to the Plaintiffsí opening brief, they use the same e-mails to seek a temporary restraining order against DAY that they used in seeking the injunctive relief at issue here. There is no question that DAY would have prevailed at the hearing on the injunctive relief at issue here had she been properly given notice by the District Court that it intended to consider imposing injunctive relief against her and allowed her the opportunity to defend.
Of course, one of the central issues before this Court is whether the preliminary injunction at issue is even alive and enforceable. Defendant, DAY, has argued once the District Court found it had no subject matter jurisdiction, to wit, that there was no federal question at issue, its orders were vacated as a matter of law if it remanded the case. In their brief Plaintiffs argue with inapposite authority that even though the District Court below lacked subject matter jurisdiction, it still had jurisdiction to make enforceable orders. If the Plaintiffs agreement were correct, then the District Courts of this nation could confer jurisdiction on themselves. That is, they could confer jurisdiction by initially taking a case that asserted a federal question, make any orders they wished to make, then make a determination that subject matter jurisdiction was lacking and yet have their previous orders be enforceable. That has never been nor, hopefully, ever be the law of this land. As Defendant, DAY, has pointed out in her opening brief, Federal District Courts do not have authority to conver jurisdiction on themselves. A District Court once found to lack subject matter jurisdiction lacks the jurisdiction to make any orders post removal.
The Avitts v. AMOCO Production Company (5th Cir. 1995) 53 Fed.3d 690, cited by DAY is directly on point with the instant matter. Contrary to what Plaintiffs misstate in their opening brief, the Avitts Court found itself with a case where the complaint, on its face, alleged a federal question without specificity. The District Court denied a motion to dismiss the action and, ultimately, entered not only injunctive relief, but interim monetary relief against the Defendants. Once the Court of Appeal found that there was no federal question, and, therefore, no subject matter jurisdiction, it held that the District Court's orders imposing injunctive relief and monetary damages were, therfore, void.
Either a District Court has subject matter jurisdiction or it does not. It canít have subject matter jurisdiction to make a series of orders and then decide it doesnít have subject matter jurisdiction but yet let the orders stand. Were it so, District Courts across this land could easily manipulate our system of justice by hearing cases they had no right to hear and imposing orders which they had no power to make.
If the Plaintiffs want injunctive relief against Defendant, DAY, they have a ready forum. They can seek a preliminary injunction before the state court in which the matter is now pending.
Freedom of speech is one of the most, if not the most, important freedoms we have in this country. It has been shown throughout history that the tyrants, the dictators, the oppressive governments, and the holders of power first seek to suppress freedom of speech. They do so because they know that freedom of speech is a powerful tool in the hands of the populace. It is a fundamental tenant of this country which proclaims itself as the torch bearer for freedom. What is at issue is not whether or not someone likes or does not like what is being said, but the fundamental right of the citizens of this country to say it. Many patriots have reiterated the now oft quoted phrase that while they would not fight for what was being said, they would fight for the right of the person to say it.
In the underlying action in this case, the Plaintiffs made a concerted and, ultimately successful effort to literally tie Defendants DELFINO and DAY together and to distort the factual basis for their claims. While they could not bring forth any evidence of DAY engaging in conduct that was unlawful or wrongful, what they could do and in fact what they did, is to simply claim that what DELFINO did DAY did and then to make the most of what can at best be called name calling. While the District Court fell into this trap set by the Plaintiffs, by accepting the Plaintiff's statement without scrutiny, DAY is confident that this Court will not also fall prey to such ascheme. Defendants name is MARY E. DAY not "DELFINO and DAY" or "DELFINO". What was actually said or not said isset forth in hardcopies of e-mails, not the Plaintiffs' embellishments. What the law holds is written, not what the Plaintiffs argue.
Dated: August 11, 2000.
RANDALL M. WIDMANN
Attorney for Appellant, MARY DAY" |
