Re: 9/15/05 - [UCSY] Zwebner v. Coughlin: Defendant James W. Coughlin's Reply Memorandum of Points and Authorities in Support of Special Motion to Strike; Reply Declaration of Edward Patrick Swan, Jr. in Support of Special Motion to Strike Plaintiff's Complaint; Reply Declaration of James W. Coughlin in Support of Special Motion to Strike Plaintiff's Complaint
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Edward Patrick Swan, Jr., State Bar No. 089429
Michelle A. Herrera, State Bar No. 209842
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
600 West Broadway, Suite 2600
San Diego, California 92101-3372
Telephone No.: 619.699.2415
Fax No.: 619.645.5321
Attorneys for Defendant James W. Coughlin
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
MICHAEL J. ZWEBNER, UNIVERSAL COMMUNICATIONS SYSTEMS, INC. and AIRWATER CORP.,
Plaintiffs,
v.
JAMES W. COUGHLIN a/k/a IRISHJIM 44, and DOES 1 - 25,
Defendants.
Case No. 05-CV-1263 JAH (AJB)
DEFENDANT JAMES W. COUGHLIN’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE (CAL. CODE CIV. PROC. § 425.16)
Date: September 22, 2005
Time: 3:00 p.m.
Ctrm.: 11
Judge: Hon. John A. Houston
Complaint Filed: June 21, 2005
Trial Date: None set.
I. INTRODUCTION
Plaintiffs filed this SLAPP action with the express intent to “close [Mr. Coughlin’s] mouth.” (Plaintiffs’ Opposition, 2:12-13.) California Code of Civil Procedure Section 425.16 (“Section 425.16”) provides a mechanism to put a preemptive stop to such SLAPP lawsuits whose net effect is to chill the expression of free speech guaranteed by the United States and California constitutions. Because an inalienable right is potentially compromised by such lawsuits, a defendant need only present a prima facie showing that the challenged speech falls within Section 425.16. The burden then shifts to the plaintiff to demonstrate a probability of success on the merits.
Plaintiffs do not contest the fact that Mr. Coughlin’s Internet postings at issue in this lawsuit fall within the scope of Section 425.16, that is, that the postings concern a matter of public interest and were made in a public forum. Rather, Plaintiffs argue that a Florida procedural statute of limitations should apply to their California substantive law claims in a District Court sitting in California. The California Supreme Court and the Ninth Circuit Court of Appeal have unequivocally held, however, that statutes of limitation are procedural and the law of the forum state on this issue applies. Plaintiffs do not deny that the California statute of limitation for their claims is one year and that the postings at issue were published well over a year prior to the filing of this lawsuit. Plaintiffs’ defamation claim, and their emotional distress claim that is predicated entirely upon their defamation claim, are both therefore time barred under California law.
Plaintiffs nonetheless argue that this Court should apply the “governmental interest” choice of law analysis to determine whether Florida’s or California’s statute of limitations should apply to their claims. Because the issue is purely procedural, the application of this analysis is neither required nor warranted. Regardless, California’s interest in this lawsuit, alleging California substantive law claims against a California defendant over conduct occurring in California, clearly outweighs any interest that Florida may have.
Even if Plaintiffs’ argument that Florida’s two-year statute of limitations applies had any merit, which it does not, Plaintiffs are left with only six conceivably actionable Internet postings. Plaintiffs have submitted no evidence, analysis or argument that even comes close to defeating Mr. Coughlin’s showing that these postings are nothing more than opinion that is non-actionable as a matter of law. All that Plaintiffs offer is Mr. Zwebner’s self-serving declaration that the postings are untrue. If this were all that was required to defeat an Anti-SLAPP motion, Section 425.16 would be rendered meaningless.
Lastly, Plaintiffs have failed entirely to submit any argument or evidence to defeat Mr. Coughlin’s showing that (1) Plaintiffs’ emotional distress claim must fail for the same reasons their defamation claim fails, or (2) alternatively, the Internet postings at issue do not give rise to a claim for intentional infliction of emotional distress.
Plaintiffs’ lawsuit should be seen for what it is: One of many frivolous actions Plaintiffs have filed against a variety of individuals and entities in their campaign to chill all commentary and criticism regarding publicly traded companies and their management. This is not permitted under California’s Anti-SLAPP law, and Mr. Coughlin’s Special Motion to Strike should be granted.
II. REPLY ARGUMENT
A. The One-Year Statute of Limitations Set Forth in California Code of Civil Procedure Section 340(c) Applies and Bars Plaintiffs’ Defamation Claim
Plaintiffs allege a claim for defamation under California substantive law. (Plaintiffs’ Opposition, 2:22-26.) Plaintiffs nonetheless claim that Florida procedural law governs the timeframe as to which this claim must be brought. (Id., 5:6-7:16.) Plaintiffs’ argument is unsupported by California and Ninth Circuit law and must be rejected.
In a case such as this where jurisdiction is based on diversity, “a federal court is bound to follow the law of the state in which it is sitting, and such reference includes the state’s conflict of laws rules as well as the state’s internal law.” Zellmer v. Acme Brewing Co., 184 F.2d 940, 942 (9th Cir. 1950). “It is a principle of conflict of laws recognized in California that the barring of a claim by the statute of limitations is a procedural matter governed by the law of the forum, regardless of where the cause of action arose.” Biewend v. Biewend, 17 Cal. 2d 108, 114 (1941). Accord Cossman v. DaimlerChrysler Corp., 108 Cal. App. 4th 370, 376 (2003).
The Ninth Circuit Court of Appeal reaffirmed this principle: “Statutes of limitation are considered procedural, hence ordinarily the statute of limitation of the forum governs the case.” Zellmer, 184 F.2d at 942 (California’s one-year statute of limitation for wrongful death applied over Nevada’s two-year statute, where plaintiff was a Nevada resident, injury occurred in Nevada and suit was filed against California defendant in District Court in California; California’s statute of limitations applies to a wrongful death action regardless of where it accrues). See also McMillen v. Douglas Aircraft Co., 90 F. Supp. 670, 672-673 (S.D. Cal. 1950) (under California law, statutes of limitation are procedural rather than substantive; hence, plaintiff’s wrongful death claim under Utah statute is time barred by the statute of limitations set forth in (former) California Code of Civil Procedure section 340(3)).
Under California law, defamation claims are subject to a one-year statute of limitation. See C.C.P. § 340(c); Shively v. Bozanich, 31 Cal. 4th 1230, 1246 (2003). Plaintiffs allege that fifteen (15) specific postings on the UCSY or TVCE Raging Bull Message Board allegedly made by Mr. Coughlin constitute defamation. (Complaint, ¶ 11.) Those postings were made between January 28, 2003 and January 4, 2004. (See Notice of Lodgment of Exhibits (“NOL”), Exhibit 10.) Plaintiffs did not file their Complaint until June 21, 2005, over seventeen (17) months after the most recent posting identified in the Complaint (UCSY Post No. 26165, posted on January 4, 2004). Plaintiffs’ entire defamation claim is therefore time barred.
Notwithstanding the foregoing, Plaintiffs urge this Court to apply a “governmental interest” choice of law analysis to determine whether California’s or Florida’s statute of limitations should apply to Plaintiffs’ claims. (Plaintiffs’ Opposition, 5:6-6:16.) In support of their argument, Plaintiffs cite to Rosenthal v. Fonda, 862 F.2d 1398 (9th Cir. 1988), which notably did not address the application of this analysis in the procedural choice of law context.[1] Rather, Rosenthal involved a substantive choice of law analysis as to what state’s statute of frauds law should apply. See Younker v. Reseda Manor, 255 Cal. App. 2d 431, 437 (1967) (“The statute of frauds is substantive law”); Denny v. American tobacco Co., 308 F. Supp. 219, 221 (N.D. Cal. 1970) (same).
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[1] As mentioned previously, statutes of limitation are procedural, not substantive.
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The “governmental interest” choice of law analysis originated in the California Supreme Court’s decision in Reich v. Purcell, 67 Cal. 2d 551, 555-556 (1967). Like Rosenthal, Reich involved a substantive choice of law issue (potential damages under multiple states’ differing wrongful death statutes). Id. Reich and its progeny do not compel a governmental interest analysis as to a procedural choice of law issue such as the applicable statute of limitations. See Klingebiel v. Lockheed Aircraft Corp., 372 F. Supp. 1086, 1089 (N.D. Cal. 1971) (recognizing the “viability of the dichotomy between ‘substantive’ and ‘procedural’ law’”); St. Louis-San Francisco Ry. Co. v. Superior Court, 276 Cal. App. 2d 762, 767 (1969) (“[I]f the matter is purely procedural the law of the forum must be applied since the forum does not adopt as its own the procedural law of the place where the tortious acts occur”) (internal citations omitted). Thus, the time-tested rule that statutes of limitation are procedural and governed by the law of the forum applies, and Plaintiffs’ claims are time barred under C.C.P. § 340(c).
The conclusion that Section 340(c) applies and bars Plaintiffs’ claims would not change even if this Court were to apply the “governmental interest” choice of law analysis, because under these circumstances there exists what courts have referred to as a “false” conflict of law. The California Court of Appeal’s decision in Ashland Chemical Co. v. Provence, 129 Cal. App. 3d 790 (1982), is directly on point. In Ashland, the plaintiff, a Kentucky corporation filed suit against defendants, a California corporation and two California residents, in California Superior Court over a promissory note that was executed in Kentucky and contained a Kentucky choice of law provision. Id. at 793. The court rejected plaintiff’s plea that a Kentucky statute of limitations should apply. Instead, the court found that the relevant California statute of limitations applied and operated to bar plaintiff’s claims, reasoning:
Here California is the only interested state. Statutes of limitation are designed to protect the enacting state's residents and courts from the burdens associated with the prosecution of stale cases in which memories have faded and evidence has been lost. McGee v. Weinberg (1979) 97 Cal.App.3d 798, 804 [159 Cal.Rptr. 86]). Here California courts and a California resident would be protected by applying California's statute of limitations because California is the forum and the defendant is a California resident. Applying California's statute of limitations would thus advance its underlying policy. In choice of law terms, California has an “interest” in applying its law. In contrast, Kentucky has no interest in having its statute of limitations applied because here there are no Kentucky defendants and Kentucky is not the forum. This case, like Reich v. Purcell, supra, is “the very paradigm of the false conflict.” (Cavers, Comments on Reich v. Purcell 15 UCLA L.Rev. 647.) The court properly applied California law.
Id. at 794 (footnote omitted).
So it is here. Mr. Coughlin is a California resident and Plaintiffs have filed a lawsuit against him alleging California substantive law claims in a District Court sitting in California.[2] It is California that has the overriding interest in this lawsuit, not Florida. It matters not that Plaintiffs purport to be Florida residents. See, e.g., Ashland, supra, 129 Cal. App. 3d at 795 (the plaintiff’s non-forum domicile, among other things, is irrelevant to the determination of what state’s statute of limitation should apply, because it does not give the non-forum state an interest in the lawsuit).
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[2] Plaintiffs’ representations regarding Mr. Coughlin’s “employment” with Talk Visual are false and misleading. Mr. Coughlin was never employed by that entity; rather, Mr. Coughlin was an independent contractor for Talk Visual, earning a minimal amount of money in that capacity. (Coughlin Reply Decl., ¶¶ 4-5, and Reply NOL Exhibits 23 and 24.) Mr. Coughlin has never done business in Florida and has had de minimis “contacts” with that state. (Id., ¶¶ 2-3, 6.) The castigations of Zwebner in footnote three to paragraph four of his declaration aside, Mr. Coughlin submitted truthful and accurate information in his motion to dismiss the equally frivolous lawsuit Plaintiffs filed against him in the Southern District of Florida. (Id., ¶ 7, and Reply NOL Exhibit 25.) And, Plaintiffs’ bald assertions to the contrary, Mr. Coughlin did not receive any “inside information” as an independent contract for Talk Visual, or through any other means for that matter. (Id., ¶ 6.) Plaintiffs’ attempt to connect Mr. Coughlin’s postings to his limited contractual relationship with Talk Visual to “create” a Florida interest in this lawsuit stretches the imagination beyond reason.
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That California has an interest in protecting its citizens from stale or otherwise defective claims is only enhanced here, where Mr. Coughlin has unwittingly fallen into Plaintiffs’ scheme to silence all opinion and criticism regarding their corporate entities and management. Notably, Plaintiffs’ efforts to chill free speech were recently struck down in a similar case in Florida. (See August 29, 2005 Order imposing Rule 11 sanctions against Plaintiffs’ counsel in Universal Communications Systems, Inc. v. Turner Broadcasting System, Inc., Case No. 05-20047-CIV-JORDAN (Southern District of Florida), Exhibit 21 to the Reply Notice of Lodgment of Exhibits (“Reply NOL”).)
Under any analysis, the one-year statute of limitation set forth in California Code of Civil Procedure § 340(c) applies and Plaintiffs’ defamation claim is time barred.
B. Plaintiffs Have Not Defeated Mr. Coughlin’s Showing that the “Defamatory” Statements Identified in Plaintiffs’ Complaint Constitute Non-Actionable Opinion.
That Plaintiffs’ defamation claim is time barred is sufficient in and of itself to grant Mr. Couglin’s Special Motion to Strike under C.C.P. § 425.16. See Traditional Cat Assn. v. Gilbreth, 118 Cal. App. 4th 392, 399 (2004) (“[A] claim which is meritless because it is barred by the statute of limitations will cause just as much intimidation as a claim which is barred because of a constitutional defense.”).
Nonetheless, even if Florida’s two-year statute of limitation applied to Plaintiffs’ defamation claim (which it does not), only the following six postings identified in the Complaint could conceivably support that claim:
UCSY Post No. 18291: August 6, 2003
UCSY Post No. 26165: January 4, 2004
TVCE Post No. 170374: July 23, 2003
TVCE Post No. 170739: September 6, 2003
UCSY Post No. 20977: October 22, 2003
UCSY Post No. 25984: January 2, 2004
(See NOL Exhibit 11.) The remainder of the postings were made over two years prior to the filing of Plaintiffs’ Complaint.
Mr. Coughlin demonstrated in his moving papers that Plaintiffs cannot establish a probability of prevailing on their claim that these six postings, (or the remaining 11 for that matter), constitute defamation, because the postings merely reflect Mr. Coughlin’s opinions which are non-actionable. (See Mr. Coughlin’s Memorandum of Points and Authorities in Support of Special Motion to Strike (“Defendant’s Motion”), pp. 11 to 14.) The bulk of Plaintiffs’ argument that the postings are defamatory is a simple regurgitation of the postings themselves followed by two feeble attempts to distinguish authority cited in Mr. Coughlin’s moving papers without any analysis or application to the facts whatsoever. (Plaintiff’s Opposition, 2:18-4:10.) This is woefully inadequate to establish a probability of success, where Plaintiffs’ burden here is “similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment.” Kyle v. Carmon, 71 Cal. App. 4th 901, 907 (1999).
Established case law in the defamation context fully supports the conclusion that the postings identified above can only be construed as non-actionable opinion. See, e.g., Copp v. Paxton, 45 Cal. App. 4th 829, 837-838 (1996) (comment that plaintiff was a “crook” not actionable); ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 1005 (2001) (statement that “the company was a stock scam and . . . [its] officers and directors were illegally conspiring to manipulate the value of its stock” not actionable); Seelig v. Infinity Broadcasting Corp., 97 Cal. App. 4th 798, 809 (2002) (referring to plaintiff as a “chicken butt,” “local loser” and “big skank” not actionable); Ferlauto v. Hamsher, 74 Cal. App 4th 1394, 1401 (1999) (calling lawyer “little fucker” and “meanest, greediest, low-blowing motherfuckers” not actionable); Lund v. Chicago & Northwestern Transp. Co., 467 N.W.2d 366 (Minn. Ct. App. 1991) (calling employee a “shithead” not actionable).[3]
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[3] Also instructive is the recent Order issued by the Hon. William Q. Hayes in the Southern District of California in Avanir Pharmaceuticals v. Does 1 through 10, Case No. 05-CV-0114 WQH(JFS), finding the comments that “Yak Shit is a pimple on a fly’s ass when it comes to pull” and “Yak shit and his fellow asshole hanson shit willingly chose to get into bed with the RGC with the G warrants and play ‘f*ck the shareholder’ footsie with the RGC” are non-actionable opinion. (See Exhibit 22 to the Reply NOL, June 7, 2005 Order Granting Defendant’s Special Motion to Strike Pursuant to California Code of Civil Procedure Section 425.16.)
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Under the foregoing authority, it simply cannot be said that the postings at issue in this lawsuit constitute anything other than Mr. Coughlin’s subjective opinions which are non-actionable as a matter of law. As summarized by the court in Jensen v. Hewlett-Packard Co., 14 Cal. App. 4th 958 (1993):
“Libel is a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him [or her] to be shunned or avoided, or which has a tendency to injure him [or her] in his [or her] occupation.” (Civ. Code, § 45.) A publication “must contain a false statement of fact” to give rise to liability for defamation. (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600 [131 Cal.Rptr. 641, 552 P.2d 425].) A statement of opinion “cannot be false and is outside the meaning of libel.” (Tschirky v. Superior Court (1981) 124 Cal.App.3d 534, 539 [177 Cal.Rptr. 357].) “The dispositive question . . . is ‘whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion.’” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1607 [284 Cal.Rptr. 244], fn. omitted.)
Id. at 969-970 (emphasis added). Even opinions that are “objectively unjustified or made in bad faith” cannot form the basis for a defamation claim. Id. at 971.
Moreover, Plaintiffs also entirely fail to appreciate the context in which the postings were made, which is critical to the determination of whether the statements can reasonably be interpreted to constitute opinion or fact: This entails examining the statement in its “broad context, which includes the general tenor of the entire work, the subject of the statement, the setting, and the format of the work.” Nicosia, 72 F.Supp.2d at 1101 (citing Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir.1995)). Then, the specific context and content of the statement is examined, “analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation.” Finally, the Court must determine whether the statement is “sufficiently factual to be susceptible of being proved true or false.” Id.
Global Telemedia Int’l, Inc. v. Doe 1, 132 F. Supp. 2d 1261, 1267 (C.D. Cal. 2001).
Here, none of the postings at issue even come close to constituting a statement of “fact” in the mind of their audience. The postings contain no indicia of being “factually” based, expressly or by innuendo. Mr. Coughlin made the statements at issue on Raging Bull Message Boards, public forums specifically designed for the exchange of opinions by interested persons. The Message Boards even contain a specific disclaimer that the messages appearing thereon are the mere opinions of the posters. (See NOL, Exhibit 13.) Under the totality of circumstances, comments made in this particular context “lack the formality and polish typically found in documents in which a reader would expect to find facts.” Global Telemedia, 132 F. Supp. 2d at 1267. The messages are non-actionable statements of opinion, and the Court’s inquiry need go no further. See Global Telemedia, 132 F. Supp. 2d at 1271 (“Having made the legal determination that the statements must be factual to be actionable, and having further found that the postings are opinions rather than actionable facts, the Court does not require further evidence to evaluate Plaintiffs’ claims”).[4]
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[4] However, even if Plaintiffs could establish false statements of defamatory fact, which they have not and cannot, Plaintiffs have not and cannot establish actual malice, which they must do because they are limited public figures, a fact they do not dispute. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964) (requiring a plaintiff to plead and prove that the defendant knew the statement was false or made the statement with reckless disregard for the truth); Brown v. Kelly Broadcasting Co., 48 Cal. 3d 711, 747 (1989). Mr. Zwebner’s self-serving declaration that the postings are false only gets Plaintiffs halfway to the requisite showing. and is directly contradicted by Mr. Coughlin’s Reply Declaration that sets forth some of the bases for the content of his Internet postings. (See Coughlin Reply Decl., ¶ 9-11, and Reply NOL Exhibits 26 and 27.)
Mr. Coughlin objects to Mr. Zwebner’s declaration, and it should be disregarded and struck. It is replete with statements based on, among other things, hearsay, lack of foundation, inadmissible opinion and inadmissible settlement discussions. (See, e.g., Paragraphs 2 and 3 of the Reply Declaration of Edward Patrick Swan, Jr.)
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C. Plaintiffs Have Not Defeated Mr. Coughlin’s Showing that Plaintiffs Cannot Prevail on their Intentional Infliction of Emotional Distress Claim.
In his moving papers, Mr. Coughlin established that Plaintiffs had not and could not demonstrate a probability of success on their claim for intentional infliction of emotional distress, for several reasons. (Defendant’s Motion, pp. 14-18.) In their Opposition, Plaintiffs do not even address let alone attempt to refute Mr. Coughlin’s showing in this regard. For all of the reasons set forth in Mr. Coughlin’s moving papers, Plaintiffs’ intentional infliction of emotional distress claim fails.
III. CONCLUSION
Plaintiffs have fallen woefully short of meeting their burden to establish a probability of success on any of their claims against Mr. Coughlin. For the reasons set forth in Mr. Coughlin’s moving papers and in this reply brief, his Special Motion to strike the Complaint should be granted with prejudice. Mr. Coughlin also requests that the Court set a hearing and briefing schedule on his application for attorneys’ fees and costs.
DATED: September 15, 2005
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
By: Edward Patrick Swan, Jr.
Michelle A. Herrera
Attorneys for Defendant James W. Coughlin
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Edward Patrick Swan, Jr., State Bar No. 089429
Michelle A. Herrera, State Bar No. 209842
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
600 West Broadway, Suite 2600
San Diego, California 92101-3372
Telephone No.: 619.699.2415
Fax No.: 619.645.5321
Attorneys for Defendant James W. Coughlin
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
MICHAEL J. ZWEBNER, UNIVERSAL COMMUNICATIONS SYSTEMS, INC. and AIRWATER CORP.,
Plaintiffs,
v.
JAMES W. COUGHLIN a/k/a IRISHJIM 44, and DOES 1 - 25,
Defendants.
Case No. 05-CV-1263 JAH (AJB)
REPLY DECLARATION OF EDWARD PATRICK SWAN, JR. IN SUPPORT OF SPECIAL MOTION TO STRIKE PLAINTIFFS’ COMPLAINT (CAL. CODE CIV. PROC. § 425.16)
Date: September 22, 2005
Time: 3:00 p.m.
Ctrm.: 11
Judge: Hon. John A. Houston
Complaint Filed: June 21, 2005
Trial Date: None Set.
I, Edward Patrick Swan, Jr., declare as follows:
1. I am an attorney of record for defendant James W. Coughlin, and I am a partner in the law firm of Luce, Forward, Hamilton & Scripps LLP. I am admitted to practice before all of the Courts in the State of California and before this Court. I have personal knowledge of the following facts, and I could testify thereto if called as a witness.
2. In paragraph 12 of Mr. Zwebner’s declaration in opposition to the special motion to strike, he claims that in “recent” settlement discussions, Mr. Coughlin’s attorney “claimed that [Mr. Coughlin] no longer posts against, and me and is sorry for what he did.” This claim is based on inadmissible evidence and should be stricken for at least two reasons. First, it is obviously based on hearsay, as I have never spoken to Mr. Zwebner. FRE 802. Second, settlement negotiations are not admissible. FRE 408. Mr. Coughlin objects on both these grounds, and requests that the statement be stricken.
3. If the statement is to be considered, it is false. I have never told Mr. Zwebner’s counsel that Mr. Coughlin no longer posts against Mr. Zwebner and I have never told Mr. Zwebner’s counsel that Mr. Coughlin is “sorry for what he did.”
4. Attached as Exhibit 21 to the Reply Notice of Lodgment of Exhibits (“Reply NOL”) is a true and correct copy of an August 29, 2005 Order by the Honorable Adalberto Jordan in Universal Communication Systems, Inc., et al. v. Turner Broadcasting System, Inc., et al., Civil Case No. 05-20047-CIV-JORDAN (Southern District of Florida).
5. Attached as Exhibit 22 to the Reply NOL is a true and correct copy of a June 7, 2005 Order by the Honorable William Q. Hayes in Avanir Pharmaceuticals, et al. v. Does 1 through 10, Civil Case No. 05-CV-0114-WQH (JFS)(Southern District of California).
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September 15, 2005.
Edward Patrick Swan, Jr.
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Edward Patrick Swan, Jr., State Bar No. 089429
Michelle A. Herrera, State Bar No. 209842
LUCE, FORWARD, HAMILTON & SCRIPPS LLP
600 West Broadway, Suite 2600
San Diego, California 92101-3372
Telephone No.: 619.699.2415
Fax No.: 619.645.5321
Attorneys for Defendant James W. Coughlin
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
MICHAEL J. ZWEBNER, UNIVERSAL COMMUNICATIONS SYSTEMS, INC. and AIRWATER CORP.,
Plaintiffs,
v.
JAMES W. COUGHLIN a/k/a IRISHJIM 44, and DOES 1 - 25,
Defendants.
Case No. 05-CV-1263 JAH (AJB)
REPLY DECLARATION OF JAMES W. COUGHLIN IN SUPPORT OF SPECIAL MOTION TO STRIKE PLAINTIFFS’ COMPLAINT (CAL. CODE CIV. PROC. § 425.16)
Date: September 22, 2005
Time: 3:00 p.m.
Ctrm.: 11
Judge: Hon. John A. Houston
Complaint Filed: 06/21/05
Trial Date: None Set
I, James W. Coughlin, declare as follows:
1. I am named as a defendant in this action. Unless otherwise stated, I have personal knowledge of the following facts and I could competently testify thereto if called as a witness.
2. I have never been to Florida in relation to any of the allegations in Plaintiffs’ Complaint in this case. All my postings that are alleged in the Complaint were made from my home in San Diego, California.
3. Other than a five-day visit to Disney World in Orland, Florida in April of 2003, I have not set foot in the State of Florida since 1968, when I participated in Unites States Navy training in Pensacola, Florida.
4. Contrary to Mr. Zwebner’s claims in paragraph four of his declaration, I have never been an employee of TalkVisual Corp. (“TVCE”). In July 2001, I entered into a “Masterdealer” agreement with TVCE, a true and correct copy of which is attached to the Reply Notice of Lodgment of Exhibits (“Reply NOL”) as Exhibit 23. Pursuant to this independent contractor agreement, I would earn a commission on sales of TVCE’s international wireless service. In 2002, TVCE sent me a Sales Authorization Agreement, a true and correct copy of which is attached to the Reply NOL as Exhibit 24. Paragraph 3.1 specifically states I will be an independent contractor and not an employee of TVCE.
5. As an independent contractor for TVCE, I earned approximately $100 in commissions based on sales of approximately $500. These sales were made from my home in San Diego, California. My role as an independent contractor for TVCE ended in approximately 2004 when TVCE discontinued its telephone operations. The last check I received from TVCE was in 2004.
6. As an independent contractor for TVCE, I never visited Florida, and my contacts with TVCE were limited to infrequent telephone calls, e-mails and faxes. I was never privy to “inside information” regarding TVCE, and I have never attempted to manipulate the stock price of TVCE or UCSY. I have never shorted the stock in UCSY or TVCE, and I lose money when their stock value declines.
7. Contrary to Mr. Zwebner’s claims in footnote three to paragraph four of his declaration, I did not make false statements in my affidavit in support of my motion to dismiss the lawsuit filed by these same Plaintiffs against me in the Southern District of Florida. A true and correct copy of my declaration in that case is attached to the Reply NOL as Exhibit 25. Mr. Zwebner made this same spurious claim in the Florida case, which was rejected by the Court. At the time of the declaration, and through today, I have not done any business in the State of Florida.
8. Mr. Zwebner’s allegation in paragraph 13 of his declaration that I attempted to bribe the President of TVCE in connection with a subpoena in a separate lawsuit is also false. I never attempted to bribe anyone at TVCE for any reason.
9. Mr. Zwebner claims he is not a liar. I disagree. I believe that Mr. Zwebner has made many untruthful statements with respect to the companies with which he is involved. Among other things, I believe that Mr. Zwebner misled me and other UCSY shareholders regarding an entity known as Hard Disc Café, Inc. (“HDC”) that UCSY attempted to acquire in 2002.
10. On August 23, 2002, UCSY announced a significant reverse stock split. In the same press release, UCSY announced the finalized agreement for the acquisition of HDC, and touted HDC’s business. The press release did not disclose that HDC had already ceased operations and closed. Later, in an SEC filing filed on February 14, 2003, UCSY announced that HDC ceased all operations on August 4, 2002, nineteen days before the August 23, 2002 press release. Documents regarding the HDC acquisition, attached collectively to the Reply NOL as Exhibit 26, demonstrate that Mr. Zwebner and UCSY lied to me and other UCSY shareholders about HDC. I believe this is just the tip of the iceberg of Zwebner’s lies to UCSY’s shareholders.
11. In paragraph 5 of his declaration, Mr. Zwebner claims he has never been charged with a crime. I disagree. Attached as Exhibit 27 to the Reply NOL is a true and correct copy of a printout from the website of the Miami-Dade County Clerk’s website showing that Mr. Zwebner was charged with a felony in February 1991.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September __, 2005.
James W. Coughlin |
