Last week AVVO took action to have the illegal injuction filed against them vacated from the courts. Below is the filing.
[pdf-embedder url=”https://usaherald.com/wp-content/uploads/2017/06/Kelly-Warner-Law-Firm-Illegal-Filing.pdf” title=”Kelly Warner Law Firm – Illegal Filing”]
Take a close look at AVVO’s claims below, which if proven to be true, could result in not only the injunction getting vacated but also open Kelly Warner up to some seriously legal liabilities:
- There was no basis for filing this lawsuit as an action against Doe defendants.On the date she filed this lawsuit, Megan Welter knew that the original source of the negative reports about her were the words of her then-boyfriend Ryan McMahon, as reported in the media and in the police report that was linked from some of the stories, and her own statements and actions as portrayed on the police bodycam video, the video taken from McMahon’s cell phone.McMahon’s signature on the stipulated order was dated May 19, the day before the lawsuit was filed. Thus, McMahon, at least, was not a Doe defendant. Moreover, to the extent that her real objective was to use a purported agreement with McMahon as a basis for seeking an injunction against the continued posting of the underlying source materials, and the news reports and analyses that reported those details — that is to say, the reports published at the URLs listed in Exhibit A to the Stipulated Injunction — Welter knew the identities of the media entities and internet platforms that she wanted to subject to injunctive relief.Avvo’s contact address for legal process is available on both the Terms of Service and the Privacy Policy linked from the bottom of its web site; the name of the individual Arizona lawyer who wrote the article about how Welter’s case illustrates the application of Arizona disorderly conduct law was displayed on the article, and the lawyer’s address could be found on his firm’s web site.
- Second, even assuming that there was evidence that some facts stated by McMahon about plaintiff Welter (and then reported by the press) were false, and even if there were any reason to believe that the statements from McMahon falsely accused Welter with actual malice on McMahon’s part, the defamation and false light invasion of privacy claims were time-barred.The stories were published in August, 2013, and 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 this action was not filed until May 2016, nearly three years later. The statute of limitations for defamation claims is one year, A.R.S. § 12-541; for privacy claims, the limitations period is two years. Hansen v. Stoll, 130 Ariz. 454, 460, 636 P.2d 1236, 1242 (App. 1981). And although the publications remained online at time of suit, the statute of limitations begins to run at the time of first publication, Clark v. Airesearch Mfg. Co. of Ariz., 138 Ariz. 240, 242, 673 P.2d 984 (App. 1983), and Arizona applies the single publication rule, A.R.S. § 12-651, in the internet context. Thus, “the statute of limitations begins to run when the allegedly defamatory material is first made available to the public by posting it on a website.” Larue v. Brown, 235 Ariz. 440, 445, 333 P.3d 767, 772 (App. 2014).
- Third, Ryan McMahon’s purported confession that he had made false factual statements does not constitute evidence of falsity that is admissible against the enjoined parties. The stipulation was not signed under oath; the stipulation does not specify which words were false; and the authors and publishers of the news stories have had no opportunity to cross-examine McMahon.Thus, no evidence supports the issuance of injunctive relief against the defendants whose web sites carried stories reporting on the police visit to the residence, including reports of what McMahon told the police and what he told the various reporters who covered the story. Even as a matter of state law, without admissible evidence Welter did not carry her burden of establishing an entitlement to injunctive relief that extended to the third parties that carried these reports. Modular Mining Sys. v. Jigsaw Techs., 221 Ariz. 515, 519, 212 P.3d 853, 857 (App. 2009).
- Extending the injunction to third parties such as Avvo violates the fundamental precept that “a court order does not bind a non-party to the litigation in which the order is entered.” State ex rel. Thomas v. Grant, 222 Ariz. 197, 198, 213 P.3d 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 346, 347 (App. 2009).To be sure, an enjoined party who connives to evade an injunction by recruiting third parties to carry enjoined statements may sometimes be subjected to injunctive relief as well, to prevent evasion of the injunction; such third parties may be enjoined as aiders and abettors of contempt. But “[a]ctions that aid and abet in violating the injunction must occur after the injunction is imposed.” Blockowicz v. Williams, 630 F.3d 563, 567 (7th Cir. 2010).Neither the news media nor professional web sites such as Avvo become “co-conspirators” with parties that have agreed not to speak ill of each other when they report on the otherwise-enjoined criticisms, or when they leave previous reports on their web sites despite the adoption of injunctions such as the one that the Court entered in this case.Similarly, although an injunction may be enforced against third parties that are in privity with a properly enjoined defendant, such as the defendant’s agents or his successors and assigns, Vasquez v. Rackauckas, 734 F.3d 1025, 1053 n. 25 (9th Cir. 2013), so long as the third party receives notice of the injunction and an opportunity to respond, Bussart v. Superior Court in and for Yavapai County, 11 Ariz. App. 348, 351, 464 P.2d 668, 671 (App. 1970) merely reporting on a controversy does not make third parties the “agents” of one of the parties to the controversy; and in any event, the procedure in this case was deliberately designed to avoid any notice to Avvo as well as the many media entities subjected to this unlawful injunction. Avvo is not Ryan McMahon’s agent, Sirotnik.Although Avvo believes that it is one of the defendant corporations that was named an anonymous defendant, in that the URL for a story carried on its web site was one of the stories that the complaint alleged was defamatory, it was never served with process and thus never brought before the Court as a party that could be ordered to do anything. 2 Although Blockowicz was decided under Rule 65(d) of the Federal Rules of Civil Procedure, that Rule is similar to Arizona Rule 65(d); consequently, the federal decision is properly considered in construing the Arizona rule. La Paz County v. Yuma County, 153 Ariz. 162, 164, 735 P.2d 772, 774 (1987) (citing Jenney v. Arizona Express, 89 Ariz. 343, 349, 362 P.2d 664 (1961)); Cornet Stores v. Superior Court, 108 Ariz. 84, 86, 492 P.2d 1191, 1193 (1972) 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Dec. ¶ 11, and Avvo received no notice of this case or, indeed, notice of the entry of the injunction against it. Id. ¶ 12.
