Hello Kerry and Jeff,
Thank you for finding those posts, Jeff.
Is the TVCP RB board no longer in service?
ragingbull.lycos.com
Sorry, no board was found for "TVCP"
This subpoena is reminiscent of the GECC witch hunt. Just like GECC, many of the aliases named in the Zwebner subpoena had no business being there, imho.
ragingbull.lycos.com
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 03-22328-CIV- MOORE/O’SULLIVAN
Michael J. Zwebner, ) Case No. 03-cv-22328
)
Plaintiff, )
) MEMORANDUM IN SUPPORT OF
vs. ) NON-PARTY MOTION TO QUASH
) SUBPOENA
a JOHN DOE –Alias “Tobias95” )
and, John Does 1-100, )
)
Defendants, )
______________________________)
MOMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO QUASH
This Motion is brought by non-party Carla Hohenhouse (“Hohenhouse”) because Michael J. Zwebner (“Plaintiff”) brought an action against a single pseudonym “Tobias95” and unspecified Doe Defendants for the improper purpose of conducting a fishing expedition to violate the privacy and constitutional rights of scores of persons. In Zwebner’s subpoena, he seeks to violate the privacy of at least eighty-plus persons who have no connection with his lawsuit whatsoever. In deciding this motion, the Court is encouraged to consider the constitutional rights of individuals exercising their freedom of speech, freedom of association and due process.
Hohenhouse, who is not a party to this lawsuit, has been targeted by Mr. Zwebner for the sole purpose to harass and intimidate. Hohenhouse further believes this action was brought by Plaintiff for an improper purpose and is merely an attempt to harass, intimidate or otherwise coerce his online critics in an effort to silence them and, that the disclosure of the identity of the pseudonyms could place them in great peril.
FACTUAL HISTORY
As shown below, Mr. Zwebner is a person who freely uses the Internet to threaten, attack, harass and intimidate individuals. He and his business associates, as explained below, have on occasion used the Internet to threaten persons or their relatives with death or injury.
On October 24, 2003, Plaintiff contacted this Movant via email and requested consent to be served with a subpoena via email, a copy of which is attached hereto and marked as Exhibit A. Since both FRCP and Local Rules specifically state that a subpoena must be served by a non-party, and Mr. Zwebner is clearly a party to this lawsuit, Hohenhouse refused to respond to Mr. Zwebner’s improper request. Plaintiff again contacted the Movant on October 28, 2003, via email and stated, “I will now have to deal with the matter the official way”. (Exhibit B)
On November 10, 2003, Zwebner served by certified mail a subpoena duces tecum issued by this court, on behalf of Plaintiff. (Exhibit C) This subpoena was not in compliance with FRCP 45 (a)(1)(C), in that it failed to specify a date and time for production of documents. Said subpoena also failed to meet the requirements set forth in FRCP 45 (b)(2) and Hohenhouse was therefore not obligated to comply.
On November 19, 2003, Movant received yet a second subpoena duces tecum, (see Exhibit D), served by “Priority Mail”, seeking the “Full disclosure of contact detail including Full Name, Address, Contact Number for the list provided”, this time, not for just the Doe defendant “Tobias95” but also sought the identities of eighty-five (85) pseudonyms of persons who are not parties or are not related to this lawsuit. Again, this subpoena failed to comply with FRCP 45 (b)(2) and Hohenhouse was not obligated to comply.
On December 31, 2003, Hohenhouse received another email from Zwebner, threatening “additional legal action”. (Exhibit E) Although Hohenhouse would be within her rights to ignore the aforementioned subpoenas, and emails, out of an abundance of caution, Hohenhouse feels compelled to seek relief form the court to the extent that Zwebner is using his lawsuit against others to harass Hohenhouse, who is not a party to this lawsuit.
Hohenhouse is not the only target of Zwebner’s harassment. On or about, October 6, 2003, Zwebner served a subpoena duces tecum upon Terra Lycos Network, which operates the “Ragingbull” public message boards. This subpoena was improperly signed by the Plaintiff, apparently attempting representing himself to be an officer of the Court, so authorized to sign said subpoena. (Exhibit F) Mr. Zwebner is not an attorney and the subpoena was issued without authorization by the court. Terra Lycos Network refused to comply.
On or about October 30, 2003, in a further attempt to co-opt information, Zwebner served a subpoena duces tecum upon Cornell University. (Exhibit G) Again, this subpoena was not authorized or issued by the court, and was signed by Mr. Zwebner in place of the judge or clerk of court. Plaintiff has also served a similar such subpoena on Investors Hub (another Internet public message board site); and Talk Visual Corporation, which was Mr. Zwebner’s former employer (Exhibit H).
Considering the subpoena served on Hohenhouse, dated October 24, 2003, was signed by an officer of this Court, one can only presume that Mr. Zwebner had knowledge, prior to affecting service of the aforementioned subpoenas, that a subpoena must be signed by an officer of the court. Hohenhouse believes Zwebner knowingly, intentionally and willfully attempted to deceive Cornell University, Investors Hub and Talk Visual Corporation in an attempt to coerce them into releasing information.
Movant Hohenhouse is not employed by Terra Lycos Network, or another other message board or chat room type service and does not own or operate any business which provides Internet access. Movant could not possibly know, with any certainty or direct knowledge, the identity of the 85 Internet aliases the Plaintiff seeks to take discovery on. Any other assertions, as to the identity of Internet users, would be mere speculation and conjecture. For example, a pseudonym could easily represent to me that he/she is Judge O’Sullivan but that does not mean that, that person is in fact Judge O’Sullivan. The only true way to ascertain the true identity of an Internet user is to issue a subpoena to the Internet Service Provider for that individual. As Zwebner has acknowledged in his complaint, even Ragingbull may not know the true identity of its subscribers because some individuals register their accounts under fictitious names. Mr. Zwebner is very well aware of this and at best, Mr. Zwebner is asking that Hohenhouse manufacture speculation and conjecture. This amounts to harassment.
ARGUMENTS
A. The subpoena duces tecum was not prepared or served in a proper manner
(1) Zwebner’s discovery does not appear to be authorized by the court and does not comply with LR 7.1 or with the pre-trial scheduling procedures;
(2) Zwebner failed to attach payment of witness fees and expenses to the subpoena;
(3) Zwebner failed to effect proper service of the subpoena in that personal service was not effected by a non-party authorized to do so by law;
(4) This court probably does not hold jurisdiction over Hohenhouse in the manner in which the subpoena was prepared, issued and served.
Movant Hohenhouse is not a resident of, nor is she employed in, the State of Florida.
Hohenhouse resides in Georgia, and Mr. Zwebner fully knows this. In fact, Mr. Zwebner served his subpoena by mail at movant Hohenhouse’ Georgia address
Hohenhouse is not a party to this lawsuit, and therefore does not believe that this court can exercise jurisdiction in Georgia in the manner Zwebner has attempted. Although Zwebner’s subpoena duces tecum requires Hohenhouse to produce documents some 400+ miles from her home in Georgia, no witness fees or fees for expenses were attached to the subpoena, thereby making it void.
According to the docket entries, no pre-trial discovery on non-party persons has been authorized by this court. Hohenhouse believes that such discovery should not commence without proper hearing before the judge who has been assigned to this case. Such discovery should only be authorized when it can be proven that the claims asserted by Zwebner are provable and have merit, and that the information being requested by the
Plaintiff is directly related to his purported lawsuit. See e.g. In re Subpoena Duces Tecum to America Online Inc., Misc. Law No. 40570 (Va. Cir. Ct., Fairfax 2000) (“Before a court abridges the First Amendment right of a person to communicate anonymously on the Internet, a showing, sufficient to enable the court to determine that a true, rather than perceived, cause of action may exist, must be made.”) The Virginia Circuit Court for Fairfax County considered a subpoena for identifying information of an AOL (America Online) subscriber. The subscriber did not enter an appearance, but AOL argued for a standard that would protect its subscribers against needless piercing of their protected anonymity. The court required the filing of the actual Internet postings on which the defamation claim was based, and then articulated the following standard for disclosure: “The court must be satisfied by the pleadings or evidence supplied to that court…that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed, and…the subpoenaed identity information [must be] centrally needed to advance that claim.”
Because compelled identification of anonymous speakers trenches on their First Amendment right to remain anonymous, the First Amendment creates a qualified privilege against disclosure. In libel and other similar cases, some courts apply a three-part test when deciding whether to compel the production of documents hat would reveal the name of tan anonymous source. Under that test, the person seeking to identify the anonymous speaker must show that:
1. The issue on which the material is sought is not just relevant to the action, but goes to the heart of its case;
2. disclosure of the source is “necessary” to prove the issue because the party seeking disclosure can prevail on all other issues in the case, and;
3. the discovering party has exhausted all other means of proving this part of its case.
Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Cervantes v. Time, 464 F.2d 986 (8th Cir. 1972); Baker v. F&F Investment, 470 F.2d 778, 783 (2d Cir. 1972); Garland v. Torre, 259 F.2d 545, 550-551 (2d Cir. 1958); Richards of Rockford v. PGE, 71 F.R.D. 388, 390-391 (N.D. Cal. 1976); Accord Connecticut State Board of Labor Relations v. Fagin, 33 Conn. Sup. 204, 206-207, 370 A.2d 1095 (1976).
B. Zwebner’s complaint, which is for state, not federal claims, probably is without merit.
Plaintiff’s complaint alleges Defamation, Libel and Intentional Infliction of Emotional Distress. By the Plaintiff’s own admission, Michael J. Zwebner (Plaintiff), utilizes the pseudonym “MICHAELJ123” on the Terra Lycos Ragingbull message boards. Although the Plaintiff would have this court believe that he has suffered severe emotional distress, by his own admissions in messages posted on the Internet, this is completely false.
Attached hereto and marked as Exhibits I, J and K are statements, made by the Plaintiff, in which he alleges the following:
Exhibit I: Post number 9757 Ragingbull, UCSY board, 17 March 2003.
“Well guess what…your posts and those of you psycho friends don’t interest or affect me in the least, nor do they mean anything at all to anyone with even a pea sized brain…”
Exhibit J: Post number 10706, Ragingbull, UCSY board, 06 April 2003.
“For the record, let me tell you again, it has ZERO effect on me. I have been INTERNET HARDENED by you and your “fool” friends, and there is NOTHING you or anyone else can say that affect me anymore…”
Exhibit K: Post number 10113, Ragingbull, UCSY board, 21 March 2003.
“I’ve suffered and had to deal with scum a lot worse than you, and dealing with you all now will not be difficult…”
The above excerpts are the Plaintiff’s own words, in which he clearly states that posts on message boards have “ZERO” effect on him, much less caused him “severe” emotional distress, and his friends would not believe any of the posting either unless, of course, they have less than “pea sized” brains.
Plaintiff, in his Complaint, specifically paragraph 75, relies upon a New Hampshire Statute (“NH RSA 358-A:10”), a copy of which is attached hereto and marked as Exhibit L. This statute applies only to New Hampshire state law, is a statute designed for class action lawsuits in that state, and has no relevance to Florida. One can only presume that Plaintiff thinks of his “family” as a “class” of individuals entitled to some form of recovery. If this is the case, that begs the question, is the Plaintiff representing this “class” of individuals in this lawsuit? If so, I would suggest to this court that this pro se Plaintiff is not authorized or licensed to practice law in any state in this land and appearing on behalf of a “class” of individuals would be unauthorized practice of law.
Plaintiff further alleges a cause of action under “Unfair Trade Practices” Under Title 33 Chapter 501.204 the unlawful acts and practices are defined as (1) Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce…(emphasis added) These statutes were designed as Consumer Protection laws and Plaintiff fails to establish a prima facia case with regard to any violations thereof. Pursuant to subsection 3 of Florida Statute 501.211 which states:
“In any action brought under this section, upon motion of the party against whom such action is filed alleging that the action is frivolous, without legal or factual merit, or brought for the purpose of harassment, the court may, after hearing evidence as to the necessity therefore, require the party instituting the action to post a bond in the amount which the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorney's fees…”,
Should the court decide to permit Zwebner to seek discovery which will potentially violate the constitutional rights of the non-party targets of his numerous subpoenas, the court should require Zwebner to post an appropriate bond.
The Court probably lacks personal jurisdiction over Zwebner’s alleged defendants, if, in fact, any of these persons actually exist. Plaintiff alleges diversity as the basis for jurisdiction. Jurisdiction is determined by citizenship. Citizenship of natural persons is determined by their domiciles. If the defendants in this case are unknown to the Plaintiff, and unspecified in his lawsuit, how can their citizenship be known? Pursuant to Sect. 1332, complete diversity must be established when the action is commenced (emphasis added) and jurisdiction must be proper for each plaintiff with respect to each defendant. Plaintiff cannot possibly establish “Diversity” when the domiciles of the Defendant’s are unknown to him.
This action should have properly been filed in state court, and then, if diversity is found, could be removed to federal court by any party. Gleneagle Ship Mgmt. Co. V. Leondakos, 602 So. 2d 1282 (Fla. 1992). However, in Gleneagle, the plaintiff had obtained service on the defendant and had alleged a basis for jurisdiction. At the very least, the Court should refrain from permitting discovery to establish jurisdiction until the plaintiff proffers evidence to support the claim of personal jurisdiction. See, e.g. SEESCANCY com, 185 F.R.D at 578 (requiring plaintiff in action against anonymous online defendant to “identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued” in order to “ensure that federal requirements of jurisdiction and justifiability are satisfied”).
The postings at issue in this case can be read by all Internet users worldwide, including those in Dade County, Florida. The overwhelming weight of authority holds that posting content on the Internet that is generally available to all Internet users is insufficient to establish personal jurisdiction over a defendant. See Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997), aff'g 937 F. Supp. 295, 301 (S.D.N.Y. 1996) ("Creating a web site, like placing a product into the stream of commerce, may be felt nationwide - or even worldwide - but, without more, it is not an act purposefully directed toward the forum state"); Mink v. AAAA Dev. LLC, 190 F.3d 333 (5th Cir. 1999) (same); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997) (same); Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (same); see also Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So. 2d 1351 (Fla. 3d DCA 1994) (holding that out-of-state defendant's use of computer database physically located in Florida was insufficient to establish personal jurisdiction in Florida).
On the basis of the aforementioned arguments, there is substantial concern as to whether the Plaintiff’s claim could withstand a motion to dismiss. In Columbia Insurance Co. v. SEESCANDY COM, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). the court held that it would not breach the anonymity of an Internet poster without first requiring Plaintiff to establish the adequacy of the Complaint. ("Plaintiff should establish to the Court's satisfaction that plaintiff's suit against defendant could withstand a motion to dismiss. A conclusory pleading will never be sufficient to establish this element.")
C. Plaintiff brought this action for an improper purpose, to threaten, harass, intimidate and/or coerce his online critics in an effort to silence them and this Court should quash this subpoena for the protection of the personal safety of the pseudonyms.
It has been reported that Mr. Zwebner once had links to organized crime when he dated the sister and daughter of two mob bosses in the Colombo crime family. Zwebner also has a history of threatening business rivals as well as online posters and routinely uses threats and intimidation tactics as a means to silence his critics. As evidence thereof, attached and incorporated herein is an article published in 1997, by a British Publication, “The Mail on Sunday” (Exhibit M), which states:
“His former girlfriend Gia, who died from a cocaine overdose following a row with him, was the daughter of John “Sonny” Franzese a former boss of the Colombo crime family. Her brother Michael, often called the “Yuppie Don” has admitted being behind tax fraud, loan sharking, illegal gambling, racketeering and extortion as a leading member of the mob”
The aforementioned article also references an incident which occurred in 1993 in which the Plaintiff threatened the wife of an officer of the Court, an attorney representing a rival of the Plaintiff’s.
“Late in 1993, a New York Court issued a permanent injunction against him after hearing evidence of threats against a lawyer acting for a rival firm. In Court Zwebner was accused of phoning James McGovern’s house and telling his wife he wanted to send people there and that she should “obtain personal security because you will need personal security very soon”
The above excerpt is confirmed by a document attached and marked as Exhibit N, a copy of the Court docket which states:
10/08/1993 20 ORDER granting [17-1] motion to impose fines and penalties against Michael Zwebner, Thomas Blondett, David Richman and the other defts for acting in concert to violate Judge Duffy's Order of Injunction etc...., granting [15-1] motion for an Order requiring Michael Zwebner, Thomas Blondett, David Richman and the other defts and each of them to appear before Judge Duffy, United States District Judge for the SDNY at such time and such place as the Court may fix and then and there show Cause as respects sanctions, penalties and damages for violation of injunction by defts, etc., defts are permanently enjoined and restrained from acting and conspiring to make telephone calls to McGovern's spouse., mail letters and dispatch persons...to circulate false matters etc... signed by Judge DUFFY ); Copies mailed(gb) Modified on 10/13/1993 (Entered: 10/13/1993)
Although he presents himself to the Court as the “victim”, he routinely uses the heavy weight of litigation, or the threats thereof, to attempt to crush his critics. As evidence thereof, attached and marked as Exhibit O, is a fax, sent by the Plaintiff to a business rival that states the following:
“GENTLEMEN,
I AM WRITING TO LET YOU KNOW, THE THE CURRENT CAMPAIGN TO BRING YOU TO JUSTICE IS ENTERING A NEW PHASE. I ATTEMPTED TO MEET WITH McGOVERN YESTERDAY TO WARN HIM OF WHAT IS BEING PLANNED, BUT HE PLAYED YOUR STUPID GAMES, AND DECIDED TO SERVE PAPERS INSTEAD. THAT’S OK. THE JUDGE WILL DECIDE WHO IS RIGHT AND WHO IS WRONG JUST WAIT AND SEE. I SHOULD HAVE WARNED YOU, THOSE WHO PLAY WITH MATCHES AND START FIRES, CAN GET BADLY BURNED….”
Mr. Zwebner’s motive is to harass, threaten, and intimidate his victims. The aforementioned article, which states “Zwebner also began circulating letters to clients accusing his rivals of corruption and criminal activities”, attached and marked as Exhibit P, is a fax sent to business rival Ed Weiss.
The Plaintiff, in his complaint, has made allegations against only one person, “Tobias95”, yet he is seeking discovery for eighty-five Internet aliases. Clearly Mr. Zwebner is engaging in a “fishing expedition” in order to harass his critics. In such cases, the court has a duty to prevent this type of discovery abuse. Sugarmill Woods Civic Ass’n v. Southern States Utilities, 687 So. 2d 1346, 1350 (Fla Dist Ct. app. 1997) the court held:
“A trial court has the authority to prevent discovery which it believes is a mere fishing expedition calculated for harassment.”
CONCLUSION
Zwebner has improperly created and sent out numerous subpoenas duces tecum all over the country. Some of these were signed by the court, but most of them were signed by himself. They were not legally served on the respondents, and no witness fees were attached or offered by Zwebner.
Mr. Zwebner seems to believe that the act of filing a lawsuit pro se gives him a blank check book to violate the Constitution of the United States and of the State of Florida by mailing out his subpoenas all over the country to harass people.
If the court wishes to permit some form of limited discovery at this time, the court should at minimum require the pro se Plaintiff to satisfy the Court, by the pleadings or evidence supplied to the court, that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed, with regard to each and every pseudonym the pro se Plaintiff is seeking discovery on.
Respectfully submitted this 12th day of January, 2004.
______________________________
Carla S. Hohenhouse, Movant, pro se
AAA MMMMMMMM Dr.
RRRRRRRR HHHH, XY. abcde
XXX-XXX-XXXX |
