Professional Documents
Culture Documents
Motion To Quash MissAnonNews Analyzed
Motion To Quash MissAnonNews Analyzed
Unnamed Doe
Filing Pro Se
AmeliaSanaka2013@yandex.com
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Plaintiff,
vs.
Thomas Retzlaff
Defendant
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@MissAnonNews_ will move the Court for an order allowing the signature and true name on
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This motion will be made pursuant to the First Amendment to the U.S. Constitution and
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Rules 243.1 and 243.2 of the California Rules of Court, on the grounds that defendants
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overriding First Amendment right to speak anonymously supports sealing the record and the
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screen names under which UNNAMED DOE (Movant) posted messages on Twitter, Inc
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(Twitter) relating to the plaintiff. UNNAMED DOE is filing a MOTION TO QUASH A 3RD
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PARTY SUBPOENA relating to the Twitter accounts under these screen names..
Movant was notified by Twitter that Via View/ James McGibney (Plaintiffs) were
seeking to compel Twitter to reveal the identities, basic subscriber information and all manner of
online correspondence (tweets and private messages) exchanged with accounts identified as
proceed anonymously until the issues surrounding this subpoena are resolved, the Court's rulings
on the subpoena will essentially be moot because the Plaintiffs will have succeeded in obtaining
through Court Procedure that which they may not be entitled to obtain based on the courts final
ruling.
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Movant acknowledges that her request to file Anonymously and Under Seal is unusual
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for a Pro Se 3rd party in a lawsuit. Unfortunately the courts have not clearly delineated
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procedures to address this issue. As public figures, disgruntled by anonymous criticisms on the
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internet, file more legal actions best described as Strategic Lawsuits Against Public
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Participation, more defendants will find themselves in the same untenable position this Movant
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finds herself in. There are good reasons why states around the country are enacting Anti-SLAPP
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Because the Plaintiffs in this case have filed lawsuits and other actions in three (3) courts
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and in two (2) states in less than 60 days, Movant is met with the undue burden of finding legal
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representation in an unimaginably short period of time at great cost. The swift legal actions taken
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by the Plaintiffs can only be interpreted as legal maneuvers to squash Movants 1st Amendment
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granted, Plaintiffs have no basis for requiring disclosure of defendants true identity. If the
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motion is denied, Plaintiffs will suffer no prejudice as he will be entitled to the records produced
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not demonstrated a substantial and factual showing of their claims against Movant and
should not be allowed to compel disclosure of subscriber information associated with the Twitter
The Supreme Court has repeatedly upheld the First Amendment right to speak
anonymously. (Buckley v. American Constitutional Law Foundation (1999) 119 S. Ct. 636,
645-646; McIntyre v. Ohio Elections Comm. (1995) 514 U.S. 334; Talley v. California (1960)
362 U.S. 60.) Anonymous or pseudonymous writings have played an important role in our
history; the ratification of Our Constitution was heatedly defended through the pseudonymous
political advocacy of the Federalist Papers. As the Supreme Court said in McIntyre:
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[A]n author is generally free to decide whether or not to disclose his or her
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Whatever the motivation may be, ... the interest in having anonymous works
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The United States Supreme Court has held that a court order to compel production of
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individuals identities in a situation that would threaten the exercise of fundamental rights is
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subject to the closest scrutiny. (NAACP v. Alabama (1958) 357 U.S. 449, 461.)
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These rights are fully applicable to speech on the Internet. The Supreme Court has treated
the Internet as a fully protected medium for public discourse, which places in the hands of any
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individual who wants to express his or her views the opportunity, at least in theory, to
reach other members of the public hundreds or even thousands of miles away, at virtually no
cost; consequently, the Court has held that First Amendment protections are fully applicable to
communications over the Internet. Reno v. American Civil Liberties Union (1997) 521 U.S. 844
Several lower court decisions have further upheld the right to communicate anonymously
over the Internet. In Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008), the California
Court of Appeals , 6th Appellate Division, ruled that proper focus instead should be on
providing an injured party a means of redress without compromising the legitimate right of the
Internet user to communicate freely with others in essence requiring that Plaintiffs make a
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California Rules of Court Rule 243.2(a) and (b) provide that a record may be filed under
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seal only under a court order granted pursuant to a noticed motion and facts sufficient to justify
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the sealing. Rule 243.1(d) provides that the court may order that a record be filed under seal if it
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expressly finds that: (1) There exists an overriding interest that overcomes the right of public
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access to the record; (2) The overriding interest supports sealing the record; (3) A substantial
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probability exists that the overriding interest will be prejudiced if the record is not sealed; (4)
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The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the
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overriding interest.
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AmeliaSanaka2013@yandex.com
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Unnamed Doe
Filing Pro Se
AmeliaSanaka2013@yandex.com
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Plaintiff,
vs.
Thomas Retzlaff
Defendant
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Pursuant to Federal Rule of Civil Procedure 45(c) and California Civil Procedure
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1985.3(g) , I (Movant) respectfully request the court to quash Plaintiffs 3rd party subpoena as
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anonymously.
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Movant respectfully requests that she be allowed to file this motion to quash this
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subpoena without revealing any personal information. Unless this Movant can proceed
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anonymously until the issues surrounding this subpoena are resolved , the Court's rulings on the
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subpoena will essentially be moot because the Plaintiffs will have succeeded in obtaining
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through Court Procedure that which they may not be entitled to obtain based on the courts final
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ruling.
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INTRODUCTION
On April 3rd, 2014, the Movant received 3 emails (see EXHIBIT A) from social media
Page 1
service provider Twitter Inc. (Twitter) stating that Via View/James McGibney (Plaintiffs)
had issued a subpoena (see EXHIBIT B) requiring Twitter to reveal the identities, basic
subscriber information and all manner of online correspondence (tweets and private messages)
@MissAnonNews_ (Movants Three Twitter Accounts) during a time period these accounts
were participating in public discussions and spirited debate on a variety of subjects including
opinions on public figures like Kate Gosselin, the plaintiff James McGibney, and his company
Bullyville.
Without proving that these twitter accounts have in any way infringed on their rights, the
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silence critics. This violates the protected right to engage in anonymous speech. .
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The question before the Court is whether the Plaintiffs should be permitted to use the
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procedures of this Court to force disclosure of the identities of individuals who spoke
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anonymously on Twitter, where the Plaintiffs has made no showing that the anonymous speakers
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BACKGROUND
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On February 19th, 2014, the Plaintiffs filed suit in The District Court of Tarrant County,
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defamation per se, harassment, stalking, intentional infliction of emotional distress, tortious
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interference with business relationship, and business disparagement. The other named defendants
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in that suit are THOMAS RETZLAFF, LORA LUSHER, JENNIFER D' ALLESANDRO,
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NEAL RAUHAUSER, JANE DOE 1, JANE DOE 2, JANE DOE 3, JANE DOE 4, AND JANE
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On March 17th, 2014, the Plaintiffs have also filed suit in United States District Court,
Northern District Of California , San Jose Division Case # 5-14-cv-01059 against a different set
of defendants THOMAS RETZLAFF, NEAL RAUHAUSER, LANE LIPTON, and DOES 1-5
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for tortious interference with contractual relations, tortious interference with prospective
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On the same day, March 17th, 2014, the Plaintiffs filed Civil Order to Show Cause
Temporary Restraining Order on which this subpoena is based. (see EXHIBIT E)
On March 18th, 2014, the defendant Neal Rauhauser filed his ORIGINAL ANSWER,
EXHIBIT F)
On March 20th , 2014,prior to any action taken by Plaintiffs attorney, defendant Neal
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against the Plaintiffs in The District Court of Tarrant County, 67th Judicial District Case #
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67-270669-14. The filing of this motion stays all discovery in regards to the Lawsuit filed in
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Case # 67-270669-14 in The District Court of Tarrant County, 67th Judicial District. (See
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EXHIBIT H)
STATEMENT OF FACTS
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The right to anonymous speech is older than the United States and pamphleteering is
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considered the original social media. Ordinary citizens across the colonies distributed
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independence movement. Later, the debate regarding the ratification of the Constitution was
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largely held in a series of articles penned by anonymous writers: the Federalist Papers,
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advocating for the ratification of the Constitution, was written by a group of writers under the
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pen name Publius, while the Anti-Federalist papers were penned by the pseudonomous writers
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The Supreme Court explained in Reno v. American Civil Liberties Union, 521 U.S. 844,
853, 870 (1997),
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viewers, researchers and buyers. . . . Through the use of chat rooms, any person
with a phone line can become a town crier with a voice that resonates farther
than it could from any soapbox. Through the use of web pages, . . . the same
Full 1st Amendment protections extend to communications over the internet, including
social media websites, and Courts have long recognized that speakers have a 1st Amendment
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Twitter, a social media website, is a micro-blogging network of individuals that post short
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messages limited to 140 characters (Tweets). Real-time information sharing, the immediacy of
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interactions and the ability to connect with like-minded people to freely express opinions on
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various topics are some of the reasons Twitter is so popular. The capacity to express those ideas
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in anonymously is another. Twitter users can choose to use his/her real name or select
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The Plaintiffs have their own account @Bullyville to promote their website
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Bullyville.com where they promote Sometimes you need to be a bully to beat a bully as their
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mission. Their Tweets are controversial and aggressive in keeping with the stated mission of their
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In 2013, a group of Twitter users began discussing their opinions about a a public figure
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(Reality TV star). The Plaintiffs disagreed with these users and joined in the debates. As the
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debates became more heated, the Plaintiffs stepped up their campaign released these users
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identities, and announced this on various national media outlets while their Twitter account
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posted private emails. In some cases, according to the media reports, the Plaintiffs went so far as
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to call these twitter users employers. Some allegedly lost their jobs. According to other news
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reports, the Plaintiffs claimed to file a class action lawsuit against these twitter users. ( see
EXHIBIT L, M, N)
Page 4
Movant began defending these users by tweeting about the harassment , expressing her
opinion that they are entitled to express their opinions about a public figure. In return,
@Bullyville began what became a sustained campaign to stalk and harass the Movant, even
paying people to investigate the Movants identity in an effort to silence the Movant, leading to
the public display of personal information of four different people misidentified as the Movant.
On April 3rd, 2014, the Movant was contacted by Twitter regarding this subpoena which
plainly states that it is demanding Twitter produce records on Movants Three Twitter Accounts
(which are now inactive) in order to gather evidence in support of the allegation that Defendant
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Thomas Reztlaff is the human operator behind most or all of these pseudonymous accounts.
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This directly contradicts statements the Plaintiffs make in the suit filed in United States District
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Court, Northern District Of California , San Jose Division Case # 5-14-cv-01059, in which the
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Plaintiffs allege that Movants Three Twitter Accounts as well as the BVFiles Wordpress site are
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on information and belief shared by defendants Neal Rauhauser and Lane Lipton.
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The statements in each of these petitions filed on the same day by the same lawyer
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on behalf of the same Plaintiffs wildly contradict each other and contradict still another
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set of assertions made by the Plaintiffs in the lawsuit filed in Tarrant County, Texas, in
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which it is allege(d) that Defendant, Missanonnews can be served with process at their
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place(s) of residence. This Defendant's true identity is being withheld due to a current
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FBI inquiry.. Plaintiffs offered no proof that there is an actual investigation by the
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SUMMARY OF ARGUMENT
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The First Amendment protects anonymous Internet speech, speech about matters of
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ARGUMENT
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There is a growing consensus among courts that plaintiffs must show good cause for
substantial and factual showing of their claim prior to allowing discovery into the identity of an
In Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008), the California Court of
Appeals , 6th Appellate Division, ruled that proper focus instead should be on providing an
injured party a means of redress without compromising the legitimate right of the Internet user to
communicate freely with others in essence requiring that Plaintiffs make a prima facie
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defamation. Within the context of the heated debate over Plaintiffs and associates behavior in
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this case, Plaintiffs have made no such showing that any of those Tweets rise to the level of
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defamation. In fact these Tweets in question clearly fall within the scope of communication
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Mr James McGibney, a plaintiff, is a limited purpose public figure who has thrust himself
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to the forefront of particular controversies in order to influence the resolution of the issues
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involved as defined by Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974) and there can be
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no doubt that the Reality TV Star at the center of this controversy is a public figure. New York
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Times v. Sullivan, 376 U.S. 254, 279-80 (1964) compels Plaintiffs to prove actual malice
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Offensive comments arent necessarily defamatory. In Snyder v. Phelps, 131 S.Ct. 1207
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(2011), the US Supreme Court held that the target of free speech did not have to be a public
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figure for the speech to be protected if it applies to matters of public concern. Plaintiffs
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controversial commercial websites are definitely matters of public concern and its hard to
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imagine the Movants speech is anything other than constitutionally protected speech.
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public forums. Free speech and the free expression of opinions is so powerful that tactics devised
to curtail these right have been categorized under the label Strategic Lawsuit Against Public
Participation. Plaintiffs have availed themselves of so many of these maneuvers for the sole
purpose of silencing their critics but have made failed to make their prima facie case required to
CONCLUSION
Plaintiffs claims cannot survive even a preliminary review. Their rushed attempts to
invoke the subpoena power of This Court based on a complaint devoid of any factual allegations
while simultaneously engaging this Movant as a defendant in similar litigation in Texas suggests
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that the true goal in filing these complaints is simply to expose the identity of the Movant and
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by UNNAMED DOE,
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AmeliaSanaka2013@yandex.com
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p 004/005
ATTACHMENT 3
Plaintiff James McGibney seeks subscriber information, tweets, and direct messltgea ror
the tbllowing accounts, most of which have been suspended:
1.
2.
3.
4.
S.
6.
7.
8.
9.
10.
11.
to
All basic subscriber information for each named account, including date/time of
creation, name,. location, TP address, e-mail address, phone number, etc.
2.
All public tweets, private tweets, and direct messages sent to or From @MrTexxan
From October 1, 2013 .Lmtil the account was suspended.
3.
All public tweets, private tweets, and direct messages sent to or from
'
OJ'
from
5.
p 005/005
All public tweets, private tweets, and direct messages sent to or fTom
@PedoCaptain from November 1, 2013 until the account was suspended.
6.
All public tweets, private tweets, and direct messages sent to or from
@bright_Anon tram January 1, 2014 until the account was suspended.
7.
All public tweets, private twc~::ts, and direct messages sent to or trom
@BV_Truther from January 1, 2014 until the
S.
acco~ml
was suspend~d.
All public tweets, private tweets, and direct messages sent to or Jrom @BV_Tntth
from February I, 2014 to the present.
9.
All public tweets, private tweets, and d.irect messages sent to or from
@Occupy Rebellion !'rom June L 2014 through December 1, 2014.
I 0.
All public tweets, private tweets, and direct messages sent to or from
@MissAnonNcws !rom August I. 2013 until the account was suspended.
11.
All public tweets, private tweets, and direct messages sent to or fTom
@MissAnonNews_ nom January 1, 2014 until the account was suspended.
12.
All TP address logs tbr the accounts during the times spcciicd for each account.
13.
All mctadata, including location information, for tweets specified for each
account.
No.
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
JUDICIAL DISTRICT
PARTIES
1.
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
County, Texas and can be served with process at his place of residence.
4.
determines the identity and location of Jane Doe 1, Plaintiff shall amend
the Petition to identify the Defendant and provide an address for issuance
and service of citation.
9.
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
determines the identity and location of Jane Doe 2, Plaintiff shall amend
the Petition to identify the Defendant and provide an address for issuance
and service of citation.
10.
determines the identity and location of Jane Doe 3, Plaintiff shall amend
the Petit~on to identify the Defendant and provide an address for issuance
and service of citation.
11.
determines the identity and location of Jane Doe 4, Plaintiff shall amend
the Petition to identify the Defendant and provide an address for issuance
and service of citation.
12.
determines the identity and location of Jane Doe 5, Plaintiff shall amend
the
Petit~on
13.
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
14.
15.
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
McGibney by Retzlaff and other Defendants include but are not limited to
the following: (1) "I am simply amazed that this BullyVille, guy, James
McGibney, is still alive. If I was listed on his website, I would put a bullet
in his head.
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
Plaintiffs
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
067-270669-14
18.
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
and defamation per se, that include without limitation false allegations
that McGibney is a "pedophile" that Defendants published via Twitter.
Notably, McGibney obtained a $250,000.00 judgment against Hunter
Moore for this same lie. Additionally, Plaintiffs sue all Defendants for
negligence per se, in violation of Texas Penal Codes 22.07, 42.07 &
42.072. Plaintiffs would show that the defamation, defamation per se and
negligence per se of the Defendants in violation of these Texas Penal
Codes have proximately caused both Plaintiffs substantial actual
damages, including substantial economic or pecuniary losses in the past,
present and future, and for McGibney non-economic or non-pecuniary
losses in the past, present and future. McGibney is a married father with
three young children.
tremendous anxiety and worry, and McGibney's wife has suffered severe
stress and anxiety about her safety, McGibney's safety, and the safety of
their children. For all such damages, Plaintiffs now sue.
19.
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
constitute these intentional torts include but are not limited to threats of
violence, threats of death, comments about the residence of Plaintiff
McGibney and his spouse intended to terrorize McGibney, comments
about his family, etc., all of which are specifically designed to inflict as
much emotional distress as possible upon McGibney and his family. As
a result, Plaintiff McGibney has sustained severe emotional and mental
distress and anguish, with physical manifestations, in the past, present
and likely into the future, including but not limited to extreme worry, loss
of sleep, anxiety, fear and other emotional suffering and anguish with
physical manifestations all proximately resulting from Defendants'
intentional infliction of emotional distress upon him, all of which to be
demonstrated at the time of trial. Plaintiff McGibney therefore seeks to
recover all his actual damages proximately caused by Defendants'
intentional infliction of emotional distress upon him, including all his
pecuniary and non-pecuniary damages in the past, present and likely into
the .future.
20.
Plaintiff ViaView also sues all Defendants for the torts of business
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FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
067-270669-14
and
then
Defendants
bragged
about
causing
067-270669-14
severely
that
these
celebrities
dissociated
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
themselves
from
For all
Plaintiffs would also show that the actions of all the Defendants are
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
Pursuant to Tex. R. Civ. P. 681 et seq., Plaintiffs also ask this Court
067-270669-14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
also request that this Court issue a Permanent Injunction Order after a
final trial on the merits, to prohibit and enjoin the misconduct identified
in this paragraph of this Petition, or any other misconduct by Defendants
that can lawfully be subject to a permanent injunction order.
23.
For all such damages and injunctive relief, Plaintiffs now sue.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that each
JOHN SK MORGAN
067-270669-14
OF COUNSEL:
Jason S. Leiderman
SEN: 203336
Eric J. Lindgren
SEN: 288543
Law Offices of Jay Leiderman
5740 Ralston Street, Suite 300
Ventura, California 93003
(805) 654-0200
(805) 654-0280 facsimile
Randazza Legal Group
Marc J. Randazza
NBN: 12265
3625 S. Town Center Drive
Las Vegas, NV 89135
(702) 420-2001
14
FILED
TARRANT COUNTY
2/19/2014 11:13:42 AM
THOMAS A. WILDER
DISTRICT CLERK
'^\\mLS
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A civil case information sheet must be completed and submitted when an original petition orapprication is filea to initiate a new civil, faintly law, probate, or mental
STYLED J/3/y|/5 lAT.fi I knf.ti (J^ JfJ^fJj).^^
, \f -t
(e.i!., John SinTili v. All Anieiicjin Insurance Co; In re Man' Ann Jones; In (he Malleii oof Ilie Eslnle of George Jackson)
health case or when a post-judgment petition for modification or inolion for enforcement is filed in a family law case. The information should be the best available at
the time of filing. This sheet, approved by the Texas Judicial Council, is intended to collect information that will be used for statistical purposes only. It neither replaces
nor supplements the filings or service of pleading or other documents as required by law or rule. The sheet does not constitute a discovery request, response, or
supplementation, and it is not admissible at trial.
Contract
Debl/Contracl
DConsumer/DTPA
DDebt/Contract
DFraud/Misrepresentation
DOther Debt/Contract:
Foreclosure
QHome EquityExpedited
QOther Foreclosure
DFranchise
Dlnsurance
D Landlord/Tenant
DNon-Competition
DPartnership
DOther Contract:
Real Proper!)'
QEminent Domain/
Condemnation
QPartition
DQuiet Title
QTrespass to Try Title
QOther Properry:
Injury or Damage
DAssa nit/Battery
P^onsmictioii
FTDefamalion
Malpractice
DAccounting
DLegal
DMedical
QOtlier Professional
Liability:
DMotor Vehicle Accident
DPremises
Product Liability'
DAsbeslos/Silica
DOther Product Liability
List Product:
DOther Injury or Damage:
Employment
[^Discrimination
ClRetaliation
DTermination
DWorkers' Compensation
tDOtlier Employment:
Tax
DTax Appraisal
D'lax Delinquency
DOther Tax
DAdministrative Appeal
nAntitrust/Unfair
Competition
LUCode Violations
QForeign Judgment
Dlntellectual Property
Related to Criminal
Matters
dExpunction
DJudgmentNisi
dNon-Disclosure
DSeizure/Forfeittire
DWrit of Habeas Corpus
Pre-indiclment
DOther:
Marriage Relationship
QAnnulment
DDeciare Marriage Void
Divorce
DWith Children
DNo Children
Other Civil
D Lawyer Discipline
n Perpetuate Testimony
DSecurities/Stock
DTortious Interference
DOther:
Post-judgment Actions
(non-Title IV-D)
[^Enforcement
dModification Custody
DModification Other
Title JV-D
[ZJEnforceinent/ModiFication
DPaternity
QReciprocals (UIFSA)
nSupport Order
Parent-Child Relationship
LjAdoption/Adoption with
Termination
DChild Protection
DChild Support
QCustody or Visitation
dGestational Parenting
CDGrandparent Access
D Parentage/Paten) ity
DTermination of Parental
Rights
DOther Parent-Child:
DOuardianshipAdult
DGuardianshipMinor
DMental Health
Dother:
QPrejudgment Remedy
DProtective Order
nSequestration
QTemporary Restraining Order/Injunction
nTumover
_^~
, __ ^
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)
)
)
)
Plaintiffs,
)
)
vs.
)
)
THOMAS RETZLAFF, an individual,
)
NEAL RAUHAUSER, an individual,
)
LANE LIPTON, an individual, and
DOES 1-5, individuals whose true names are not )
)
known,
)
Defendants.
)
)
)
)
)
JAMES MCGIBNEY, an individual, and
VIAVIEW, INC, a corporation,
Plaintiffs James McGibney (Mr. McGibney), an individual, and ViaView, Inc. (ViaView), a
22
corporation (collectively, Plaintiffs), set forth the following causes of action against Defendants
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Thomas Retzlaff (Retzlaff), Neal Rauhauser (Rauhauser), and Lane Lipton (Lipton), and yet
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1. Beginning in or about June 2013 and continuing through the present, Defendants, acting
27
individually and in concert, have engaged in a civil conspiracy to destroy Plaintiffs herein. Defendants
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have relentlessly harassed, defamed, cyber-stalked and invaded the privacy of Mr. McGibney, in a
AMENDED COMPLAINT
Page 1
deliberate effort to harm his reputation and the reputation of his business, ViaView, Inc. In addition to
launching countless personal attacks which included threats of violence, Defendants agreed to and
carried out a plan to ruin Plaintiffs relationships with advertisers and sponsors, costing Mr. McGibney
and ViaView hundreds of thousands of dollars of ad revenue and other income. Mr. McGibney asks this
PARTIES
2. Plaintiff Mr. McGibney, at all relevant times mentioned herein, was and is now an individual
residing and domiciled in San Jose, California. He also owns residential property in Las Vegas, Nevada.
3. Plaintiff ViaView is a Delaware corporation with its business centers in San Jose, California and
10
Las Vegas, Nevada. ViaView is the owner and operator of the popular websites
11
12
13
14
15
16
17
18
19
20
4. Plaintiffs are informed and believe and based thereon allege that Defendant Retzlaff was and is
now an individual residing and domiciled in Tarrant County, Texas.
5. Plaintiffs are informed and believe and based thereon allege that Defendant Rauhauser was and
is now an individual residing and domiciled in Washington, D.C.
6. Plaintiffs are informed and believe and based thereon allege that Defendant Lane Lipton was and
is now and individual residing and domiciled in Roslyn, Nassau County, New York.
21
7. Plaintiffs are informed and believe and based thereon allege that Defendants named herein as
22
Doe Defendants 1 through 5 are other individuals, the true names and locations of whom are unknown.
JURISDICTION
23
24
8. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332, as the parties in this case
25
are completely diverse and the matter in controversy exceeds, exclusive of interest and costs, the sum of
26
$75,000.
27
28
AMENDED COMPLAINT
Page 2
VENUE
9. A substantial part of the events giving rise to the claims sued upon herein occurred in San Jose,
California.
4
5
10. As alleged below, Defendants knew that Plaintiff Mr. McGibneys residence and domicile were
in San Jose California and they intentionally committed wrongs against him in San Jose, California.
6
7
11. Likewise, on information and belief, each Defendant knew Plaintiff ViaView was based in San
Jose, California.
8
9
12. On information and belief, Defendants intentionally directed their conduct in order to cause harm
to Plaintiffs interests in San Jose.
10
11
13. Therefore, venue lies in the Northern District of California pursuant to 28 U.S.C. 1391(b)(2),
and this courts exercise of jurisdiction in this case is reasonable and appropriate.
FACTUAL ALLEGATIONS
12
13
14
I.
15
14. Plaintiff Mr. McGibney is a business owner and former United States Marine. Mr. McGibney
16
served tours of duty with Third Surveillance Reconnaissance Intelligence Group and Marine Security
17
Guard Battalion. He was awarded the Navy Achievement Medal for computer security support to 128
18
U.S. Embassies. Mr. McGibney is the CEO and founder of his business, ViaView, which operates the
19
websites BullyVille and CheaterVille (the Websites). ViaView has a board of directors.
20
15. The Websites aim to give a voice to those victimized by bullying (BullyVille) or romantic
21
infidelity (CheaterVille) by providing a public platform upon which victims may tell their stories.
22
16. In line with the goals of the Websites, Mr. McGibney vigorously exerts social and financial
23
pressure on owners, operators and purveyors of revenge porn websites with the intent of shuttering
24
those websites. Wikipedia has a good definition of revenge porn. It states: Revenge porn is sexually
25
explicit media that is publicly shared online without the consent of the pictured individual. [] Revenge
26
porn is typically uploaded by ex-partners or hackers. Many of the images are selfies which are taken
27
by the subject of the photo. The images are often accompanied by personal information, including the
28
pictured individuals full name, links to Facebook and social media profiles or addresses.
AMENDED COMPLAINT
Page 3
17. Revenge porn is now criminal in several jurisdictions, including California. Plaintiff McGibney
has been very successful in permanently shutting down numerous revenge porn sites and has been
credited with saving the lives of dozens of young girls. These girls were often underage and many were
contemplating suicide in part because their naked images landed on these despicable sites.
5
6
18. Like many Internet-based businesses, the primary revenue source for the Websites comes from
advertisers.
19. All ViaView sites average approximately one million individual and unique user hits per month.
20. Plaintiffs are and were at all times relevant to this suit parties to numerous contracts with
10
a. Spokeo.com
11
b. Lijit.com
12
c. Advertise.com
13
d. Godaddy.com
14
e. Digit covers
15
21. Combined advertising revenue lost as the result of Defendants conduct exceeds $19,300 per
16
month. This loss does not include other losses described herein. The calculations of loss for the effect
17
upon other advertisers that would have been drawn to the sites, or from the loss of clicks toward
18
advertisers that have remained, attributable directly to the direct harassment of Mr. McGibney or the
19
harassment of celebrity spokespeople described in detail herein, has ratcheted up the loss to at least
20
21
22. Prior to Defendants conduct complained of herein, Plaintiffs enjoyed a good working
22
relationship with his advertisers listed in paragraph 20 and most advertisers had been doing business
23
with ViaView continuously for two or more years. Visits to BullyVille and CheaterVille were growing
24
and neither site had problems with celebrity spokespersons wanting to distance themselves from his
25
websites. Rather, it was quite the opposite: many high profile celebrities have supported BullyVille over
26
the years.
27
28
AMENDED COMPLAINT
Page 4
1
2
II.
Retzlaffs Campaign of Harassment of, Defamation of, and Interference with Plaintiffs
Business.
23. Defendant Thomas Retzlaff was a prolific user of these revenge porn sites. Plaintiff Mr.
McGibney has identified at least 18 victims (mostly female) whose personal information and/or nude
24. Moreover, Mr. Retzlaff has made horrendous comments accompanying these girls posts such as
I would like to suck on her tits while raping her mouth and Imma [sic.] break her teeths out with my
dick and rape that booty. It has also been proven that Defendant Retzlaff posted his own daughter on
10
numerous revenge porn websites. Within one site, where he uploaded naked images of his own daughter,
11
12
25. As a result, a number of women victimized by these sites, and Retzlaffs conduct, have filed
13
multiple lawsuits and restraining orders against Retzlaff in Texas. Plaintiff Mr. McGibney has been
14
15
16
26. Defendant Retzlaff is also a convicted felon, having been imprisoned from 1998 through 2004,
for sexual assault, burglary and unlawful possession of a weapon on elementary school property.
17
27. Once Mr. McGibney successfully shut down a few of these websites, including
18
19
28. Beginning in late October 2013, Retzlaff began targeting Plaintiffs using a vast array of social
20
media accounts, across many different platforms, using many different aliases. These aliases,
21
colloquially referred to as sock puppets or socks, were intended to hide Retzlaffs true identity.
22
They had the further purpose of creating the illusion of broad support for Retzlaffs extreme views while
23
he carried out his stalking and cyber-terrorism. In actuality, Retzlaffs public support came primarily
24
or entirely from accounts controlled and maintained by him and other co-defendants to this action.
25
29. The names and accounts Retzlaff used include, but are not limited to:
26
27
28
AMENDED COMPLAINT
Page 5
10
11
12
13
14
30. Plaintiffs have taken numerous steps to confirm that it is Retzlaff behind each alias or sock
15
listed herein, including but not limited to lawfully tracking internet protocol addresses1 and matching
16
email addresses between accounts. Mr. Retzlaff does not take significant steps to conceal his identity
17
online besides using multiple names and accounts and a less-than-stable VPN2 connection. Plaintiff is
18
certain he can prove that all accounts complained of herein belong to Retzlaff. He is informed and
19
believes that all accounts belong to Retzlaff and thereon alleges that Retzlaff uses the accounts to
20
21
31. Plaintiffs reasonably anticipate that Retzlaff and the other Defendants will continue to create
22
multiple aliases to harass, stalk, terrorize and defame Plaintiffs and their business partners in order to
23
24
25
26
27
28
Internet Protocol or IP addresses are unique addresses that show what computer is creating the packets sent through the
internet.
2
A VPN, or virtual private network, is a technology that allows a user to obscure his true IP address by encrypting that
users traffic and routing it through a separate IP address.
AMENDED COMPLAINT
Page 6
32. On October 30, 2013, Retzlaff publicly tweeted from the @MrTexxxan account (an account
associated with revenge porn website www.texxxan.com) that he was surprised no one has shot them
fools yet. lots of crazy ppl in the world off their meds Based upon the context, it is clear that Retzlaff
was referencing Mr. McGibney and other people associated with ViaView.
34. On November 2, 2013, Retzlaff, posting using alias LongJohnSilver, wrote several paragraphs
in the comments section of an article published on BullyVille targeting Mr. McGibney, stating, If I was
listed on his website I would put a bullet in his head. Its as simple as that. . . . You walk up behind
him at a Wal-mart or whatnot, you shot [sic] him and take off, dump the gun in Lake Mead or
10
somewhere and youre go [sic] to go. So go ahead James, keep it up. Sooner or later youre going to
11
step on the wrong set of toes and youre going to come across a real life tough guy, not an internet tough
12
guy like a Hunter Moore,[3] and its gonna cost you and your family your lives.
13
35. On November 2, 2013, Retzlaff replied to a comment on BullyVille with his LongJohnSilver
14
alias Crazy people do not care if they get caught. They will kill you regardless as to the consequences
15
to them because they are crazy. So while its all well and good that the FBI will eventually catch them
16
(assuming theyre not one of the 40% who literally get away with murder), it does you little good if
17
18
19
36. On or around November 3, 2013, Retzlaff, using alias Scott Jewels, wrote in the comments
section of an article discussing a lawsuit filed by a stalking victim:
20
21
b. Obviously [a reality TV stars]4 and Bullyvilles allegations are a complete lie. That
22
f@ggot who runs BullyVille, James McGibney was screaming and hollering about
23
how he (McGibney) was going to get Jon and all of his supporters and how Jon was a
24
25
26
27
28
Hunter Moore is a well-known personality who pioneered the revenge porn website genre on his site, isanyoneup.com.
Mr. McGibney secured a $250,000 judgment against Hunter Moore for conduct similar to that alleged here. Moore is
currently under federal indictment for hacking conspiracy charges.
4
McGibney became involved in the defense of a woman when she was viciously attacked by people over the internet. The
comments referenced in paragraph 36 reflect his involvement in that suit.
AMENDED COMPLAINT
Page 7
thief and physically abused [the mother] and all sorts of nonsense. I hope Jon sued
d. James and Christina McGibney live at [redacted for safety], they own a revenge porn
website Cheaterville.
5
6
7
37. On the same website, at around the same time, Retzlaff posted the name of Mr. McGibneys wife
and their home address a second time.
8
9
38. On the same website, Retzlaff amplified his harassment by also using the alias Molly Santucci,
agreeably replying to posts by Scott Jewels.
10
39. On November 15, 2013, Retzlaff again used the alias Molly Santucci to directly contact DJ
11
ASHBA via Facebook. Mr. Ashba, as is described below, is a musician and celebrity spokesperson for
12
BullyVille. Mr. Ashba was falsely told that CheaterVille is a revenge porn website and Retzlaff, via
13
sock accounts encouraged DJ ASHBA to remove [his] endorsement and end [his] relationship with
14
15
40. On the same day, Retzlaff, using Twitter alias @KellySwift4, tweeted a similar statement to Mr.
16
Ashba: @DjASHBA Why do you support revenge porn w/ ur BullyVille endorsements? Dont u know
17
18
41. Mr. Ashba is a musician with a world-famous rock group. His endorsement created a lot of
19
interest in BullyVille from advertisers new and old. Plaintiffs estimate he drove hundreds of thousands
20
21
42. After receiving these and other unwanted messages from Retzlaff, and learning that Retzlaff was
22
convicted of a felony and served time in prison, Mr. Ashba became fearful for his safety and the safety
23
of his family.
24
25
43. Mr. Ashba has reduced his role in BullyVille significantly as a result of Retzlaffs conduct and
because Mr. Ashba has concerns for his personal safety that he did not previously have.
26
27
28
BV is an abbreviation for BullyVille and Retzlaff uses it frequently to reference both the site and Mr. McGibney himself, or
both.
AMENDED COMPLAINT
Page 8
44. Plaintiffs estimate the loss of Mr. Ashba as a prominent sponsor has, and will continue to, cost
Plaintiffs at least $9,300 per month in advertising revenue as a result of fewer site visitors and
45. Retzlaff has not only harassed Mr. Ashba in connection with his campaign against Mr.
McGibney. He has harassed ViaViews PR firm, Lexicon Public Relations and celebrity Becca Tobin
from the show GLEE that airs on FOX. Each distanced themselves from BullyVille due to safety
concerns caused by Retzlaffs harassment campaign. This has caused an additional loss of revenue for
ViaView.
46. Again on November 15, 2013, using Twitter alias @Doxing_McGibney,6 Retzlaff publicly
9
10
tweeted Mr. McGibneys wifes name and their Las Vegas address. Retzlaff then tweeted Mr.
11
12
47. On November 15, and November 26, 2013, Retzlaff, using email alias James Smith, sent
13
harassing e-mails to blogger Adam Steinbaugh. Steinbaugh and McGibney worked together to shutter
14
revenge porn websites. In these e-mails, Retzlaff threatened to release private information about Mr.
15
McGibney:
16
17
before. As such, my HR Dept. has access to the LexisNexis Accurint LE Plus and
18
ChoicePoint CLEAR databases so as to fulfill all of our Govt contracts and regulatory
19
20
I would have access to a whole host of valuable personal, financial, and legal
21
information. What kind of car they drive, who they bank with, where they have lived
22
at for the past 20 yrs. (and who with), credit reports, traffic and arrest info, property
23
transactions, civil cases, any kind of hunting, fishing or drivers licenses, or trade
24
licenses, and just pages and pages worth of stuff. But not just on them, but on each of
25
their family members, too! And the family members of those family members.
26
27
28
Dox is a common Internet abbreviation for documents, usually referring to personal information. Doxing is the act of
publishing such personal information.
AMENDED COMPLAINT
Page 9
b. And if that information on all those people found its way to a document hosting site,
well, that would be just too bad, wouldnt it? But then again, you guys started this
game first. So how would Mrs. McGibney feel to find her personal details doxed or
her family members doxed? Or Mr. & Mrs. Steinbaugh? You think they all want to
be involved in you guys game of doxing people and ordering twitter followers to
destroy their lives like Bullyville and Cpt Obvious always call for? [BullyVille and
its many followers do no such thing, unless you consider halting bullying or
shuttering revenge porn sites ruining someones life, as Retzlaff apparently thinks.]
48. On November 28, 2013, Retzlaff, on the website radaronline.com, using alias Scott Jewels,
10
publicly wrote: Now he [Mr. McGibney] throws rocks at random people from his Bullyville website.
11
McGibney also runs REVENGE PORN website Cheaterville. McGibney charges people $199 in order
12
13
49. That statement is false and, as with all of the others, it was made with the knowledge of its
14
falsehood and with actual malice. Neither Mr. McGibney, nor ViaView, charge anyone to remove their
15
posts from CheaterVille, nor do they allow pornography or any nudity for that matter.
16
50. On that same date, and through his @mrtexxxan Twitter account, Defendant Retzlaff tweeted It
17
will be really funny seeing someone post pics of ur wife Christina when she is shopping at Smiths
18
19
51. On December 6, 2013, Retzlaff, using alias DickHertz, publicly posted on celebrity gossip
20
website TheDirty.com: James & Christina McGibney run Bullyville website, a site that HATES Nik
21
and the Dirty. Yet McGibney and his wife also run revenge porn site CheaterVille! And they also work
22
with scam take Down Hammer site TruthInPosting.com to charge little girls $199 to remove
23
Cheaterville pics and posts. Talk about hypocrites! McGibney and his wife scam girls with revenge
24
25
52. This is another complete and intentional lie by Retzlaff. Users of CheaterVille have the option to
26
login and make their post invisible. Furthermore, CheaterVille adheres to all DMCA takedown requests
27
within 48 hours, and refers cases that cannot be resolved to an independent arbitration service called
28
TruthInPosting (TIP).
AMENDED COMPLAINT
Page 10
53. Defendant Retzlaff has claimed on multiple occasions that ViaView and McGibney own TIP,
which is another false claim. TIP is an independent arbitration service, run by licensed mediators and
attorneys. Neither Plaintiff owns TIP, nor do they charge little girls $199 to remove Cheaterville pics
54. On December 11, 2013, Retzlaff, using Facebook alias Kelly Swift, publicly contacted Plaintiffs
business partner Brickhouse Security, stating: Why are you people advertising on a revenge
pornography website? I find this VERY DISGUESTING!! [sic] You are helping to support the
victimization of women and children!!! Cheaterville.com is a revenge porn website that charges girls
$199 to remove photos. Same with Bullyville.com, its [sic] all terrible and you should not advertise on
10
11
12
attention. We certainly do not want to be associated with any websites that would damage our brand.
13
We will look into the matter and take the necessary actions to prevent this from happening again. Thank
14
15
56. Shortly thereafter, Brickhouse Security pulled all ads from CheaterVille.
16
57. On December 17, 2013, Retzlaff, using Twitter alias @PedoCaptain, publicly tweeted at
17
BullyVilles Twitter account: @BullyVille I would like to bury a hatchet right in your fucking
18
19
58. On or around December 26, 2013, Retzlaff, using Facebook alias Kelly Swift, publicly posted
20
further accusations on the Facebook page of a BullyVille advertiser that Mr. McGibney was operating a
21
22
59. On December 30, 2013 and January 7, 2014, Retzlaff, using E-mail alias James Smith, sent Mr.
23
McGibney harassing e-mails which mentioned advertisers . . . dropping you like a bad habit and
24
celebrities [who] are runny [sic] away as fast as they can. It continued: Youve got a business to run
25
here and putting up crazy, irrational tweets isnt going to make customers comfortable or advertisers
26
happy.
27
28
60. On January 15, 2014, Retzlaff, using Twitter alias @bright_Anon publicly tweeted: [ ] Did u
know that McGibney charges girls $199 to remove their intimate photos and personal details?
AMENDED COMPLAINT
Page 11
Bullyville also works with his... Defendant Retzlaff made claims that anti-bullying website BullyVille
was a revenge porn website. This claim is, of course, absolutely false and without any merit
whatsoever, was made with the knowledge of its falsehood and with actual spite, ill will and malice.
61. On January 16, 18, and 22 2014, Retzlaff, using E-mail alias James Smith, sent Mr. McGibney
further e-mails discussing his relationship with advertisers: And is not calling an advertiser to complain
a perfectly legitimate form of expression? . . . The only person killing your advertising is you, sir. And
8
9
10
62. The e-mails acknowledge Retzlaffs intent to ruin Plaintiffs relationships with advertisers: I
spent a total for 30 minutes all together with my complaints to your advertisers. That includes time
spent on hold. And look how obviously effective it has been!!
63. On January 23, 2014, Retzlaff, using Twitter alias @BV_Truther, publicly tweeted:
11
12
@BullyVille Yes, because getting into a pointless twitter fight w/ someone who has nothing to lose is a
13
winning strategy for ur family. This was a response to a tweet from BullyVille which read, Strong
14
people stand up for themselves but the strongest people stand up for others. The header (description)
15
for @BV_Truther was exposing the truth about Bullyvilles lies by calling HR Depts one at a time and
16
getting ads on revenge porn sites shut down as soon as they pop up!
17
64. On February 2, 2014, Retzlaff, posting on an anonymous account, submitted pictures and text
18
disparaging Mr. McGibney on www.myex.com, an actual revenge porn website.7 The post was titled
19
James McGibney is a lying hypocrite who cheats!! and stated that Mr. McGibney extorts money
20
from young girls and their families over the internet. He is the scum of the earth.
21
65. This post, which created a web page titled Naked Pics of James A. McGibney Las Vegas
22
Nevada: MyEx.com appeared in Google search results for James McGibney, meaning that when
23
someone would search for information about Plaintiff McGibney, this false and defamatory post would
24
be listed in the results. The post did not in fact include any naked pictures.
25
26
27
28
The very top of the front page of www.myex.com says GET REVENGE. It specifically hosts Nude Photos along with
names, ages, and locations of the subjects of these nude photos, which are posted without the subjects consent. A clearer
violation of Californias revenge porn law, Penal Code 653.2(a)(2), is barely imaginable.
AMENDED COMPLAINT
Page 12
66. On February 8, 2014, Retzlaff, using E-mail alias Dean Allen, sent an incredibly lengthy e-mail
revenge porn website that engages in the abuse of young women and girls (and men!) by posting their
67. In this e-mail, Retzlaff ventured into extortion by stating that McGibney needed to delete all
Ville websites and permanently delete all data contained within each website and his @bullyville
68. In the same e-mail, Retzlaff admits knowledge that CheaterVille does not post nude photos.
69. On February 8, 2014, Retzlaff, using alias @BV_Truth, falsely tweeted that Mr. McGibney had
10
threatened him: @Sarelya23 [known to be Lora Lusher] And how difficult is it to send yourself a nasty
11
email and then claim that ur enemy did it? BV keeps sending ME death threats
12
70. On February 9, 2014, Retzlaff, using Twitter alias @BV_Truth, tweeted: I wonder what
13
happened to all the advertisers on Bullyville & Cheaterville. Several months ago it used to be FILLED
14
with ads.
15
71. Using Wikipedia.org account deadgoldfish, Retzlaff repeatedly defaced Mr. McGibneys
16
Wikipedia page, deleting facts about Mr. McGibneys biography and adding false statements as well.
17
Retzlaff sometimes made dozens of edits per day. Wikipedia eventually banned Retzlaffs account and
18
19
72. During this time period (October 2013 present), Retzlaff posted numerous harassing and
20
21
coordinating attacks against McGibney and ViaView with other blog members on ViaView advertisers.
22
Retzlaff still operates an active blog dedicated to stalking and defaming Mr. McGibney and ViaView.
23
73. As recently as March 3, 2014, Defendant Retzlaff sent an email to the school principal of one of
24
the board members children and caused such fear that the child has been removed from the school for
25
her safety and for the safety of other children. The local Police Department in Orange County were
26
immediately contacted and an investigation has been launched against Defendant Retzlaff. This is now
27
the fifth police investigation launched against Thomas Retzlaff across the country (Las Vegas, Northern
28
AMENDED COMPLAINT
Page 13
74. Even after the initial Complaint in this case was filed on March 10, 2014, Retzlaff has continued
with the same harassment. In an email dated March 13, 2014, Retzlaff, using the alias Dean Anderson
this time, restated his familiar refrain: If you want the bleeding to stop, you need to IMMEDIATELY
shut down ViaView, Bullyville, Cheaterville - and your twitter account @BullyVille (and the other
accounts) and ensure that ALL of the documents, posts, and photos are totally destroyed and can never
been seen or used again. As we are confident that McGibney will somehow keep trying to post this stuff
and his d0x on people elsewhere (even though that is all ViaView property, right?) we will continue to
hold you people personally responsible in the court of public opinion for things that keep on happening
here.
75. As a direct result of Retzlaffs harassment of ViaViews board of directors and business partners,
10
11
two potential investors in ViaView began to fear for their safety. This fear of Retzlaff caused these two
12
investors, whose potential combined investment amount totaled $250,000, to back out of the pending
13
deal.
76. The FBI is aware of Retzlaff as numerous complaints have been filed through IC3 and local FBI
14
15
offices throughout the Country. His harassing activities have been enjoined by several different courts
16
in actions with different plaintiffs than are present herein, through multiple restraining orders.
17
77. The State of Texas has deemed Retzlaff a vexatious litigant. He has filed, by a courts estimate
18
in 2006, between 50 and 60 lawsuits. Most of his lawsuits were prosecuted in propia persona. He is
19
knowledgeable about the law to a certain extent, and often gives away his identity by discussing legal
20
21
III.
22
23
vicious, petty, prolonged and sustained attrition battle with a series of right-wing blogger/activists. His
24
political activities inform and drive his actions in all other areas of his life. Rauhauser is obsessively
25
online seeking to advance his personal agenda and the causes of the left. He is a sworn enemy of all that
26
oppose his personal agenda. Even a perceived slight to Rauhausers activities is cause for Rauhauser to
27
declare war, and he has done so prolifically over the past few years, including a declaration in favor of
28
AMENDED COMPLAINT
Page 14
79. Rauhauser has two outstanding warrants in New Jersey for criminal harassment, and one
outstanding warrant in Iowa for his failure to make over $50,000 in court-ordered child support
payments.
80. Rauhauser is a close ally and associate of defendant Lane Lipton. On information and belief,
they often share accounts, in including the Twitter accounts @OccupyRebellion, @MissAnonNews,
7
8
81. Rauhauser has a long and prolific history of cyber stalking, cyber harassment and social
engineering.8
82. In early-mid 2013, on information and belief, Rauhauser was one of the people in control of the
10
11
@OccupyRebellion account was often used in the aforementioned battles with right-wing bloggers,
12
13
83. In mid-late 2013, after Mr. McGibney bought and took down the revenge porn site
14
isanyoneup.com, @OccupyRebellion began interacting with Mr. McGibney in a positive and prosocial
15
way.
16
84. After Mr. McGibney became involved in defending a reality TV star being viciously harassed
17
online, @OccupyRebellion turned on Mr. McGibney and began targeting Mr. McGibney with
18
harassment.
19
20
85. Other Twitter accounts operated by independent people saw @OccupyRebellions harassment of
Mr. McGibney as unjust, and retaliated against @OccupyRebellion.
21
86. As a result, the @OccupyRebellion account is no longer active, and Rauhauser lost his most
22
powerful platform. On information and belief, Rauhauser blames McGibney for this loss. He carries
23
that grudge forward to this day. @OccupyRebellion was vital to his anonymous attacks on right wing
24
25
26
27
28
Social engineering involves lying and tricking someone to get them to do what you want. It is a nice name for using and
abusing people for ones own ends. Social engineering is a confidence scam used to gain trust. It involves a lot of work in
duplicity, and necessarily calls for using several personality types, including but not limited to sock accounts.
AMENDED COMPLAINT
Page 15
87. On June 10, 2013, using the @nrauhauser Twitter alias, Rauhauser sent direct messages to Mr.
this you go after her [Defendant Lipton, one alleged operator of the @OccupyRebellion Twitter alias]
88. On November 2, 2013, using the @Kookpocalypse Twitter alias, a known and admitted
Rauhauser alias or sock, Rauhauser tweeted @UnitePink @AubreyChernick Who wants to do the
89. This message is an encouragement to others to join the agreement to contact BullyVille sponsor
and television star Becca Tobin and tell her lies about the site in order to convince her to break ties with
10
BullyVille.
11
90. Another time, Rauhauser tweeted from his account a screen shot purporting to be his desktop. In
12
the picture, one can clearly see a plan to attack Mr. McGibney, Becca Tobin and others associated with
13
14
15
91. Rauhauser shared screen shots of files on his computer more than once. All showed that
Rauhauser had plans to ruin Mr. McGibney.
16
92. In a private instant message chat that Rauhauser had with a third party in December 2013, he
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announced his intent to cause damage to Plaintiffs: So, McGibney, is there any reason not to lay waste
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93. Rauhauser wanted to destroy Mr. McGibney. He took that plan and put it into action. The result
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IV.
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bloggers. She was a public school employee but was terminated in 2012 and now, on information and
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SWATting is the act of making a fraudulent phone call to a victims local 911 operator. The SWATter tells 911 dispatch
that there is a situation (often a hostage situation) at the victims place of residence, hoping that local law enforcement will
send a SWAT team to respond. The bigger the lie, the bigger the police response. The results can place a victim in extreme
danger of being mistakenly shot by police.
AMENDED COMPLAINT
Page 16
belief, she spends most of her time on her numerous blog projects, using multiple identities and
viciously stalking and attacking people with whom she does not agree.
95. Like @OccupyRebellion and her admitted alias @qritiq, Lipton has an obsession with right-wing
blogger Lee Stranahan. Stranahan is a small-time blogger, a fringe player, and not widely known, but
Lipton, across all aliases, is obsessed with him. This obsession informs her use of the @qritiq,
key identifiers.
96. Oddly, Lipton often takes the position as victim in these blogger wars, and asks that people
remove defamatory tweets about her. She does this across accounts, crying foul, threatening to sue and
10
then attacking in a manner quite similar across accounts, and quite similar to her conduct on the BVFiles
11
blog.
12
97. Lipton segregates her personas rather well. For example, her @LaneLipton account uses her real
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name and is fairly polite, and largely uninvolved in arguments. This is the public persona that she
14
wishes to display. @qritiq is a milder and less vitriolic than her full-blown attack accounts. That
15
account, which was a sock account until it got doxed, and Lipton openly admitted it was her, got
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involved in the same types of controversies with the same general groups of people, but was usually
17
prone to playing the victim and was not entirely antisocial. The @OccupyRebellion, @MissAnonNews
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and @MissAnonNews_ accounts were almost sociopathic in their attacks when she was tweeting from
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it. The account stalked, doxed, threatened, menaced, smeared, and generally harassed in an unmitigated
20
fashion. That was the true prize fighter in both Lipton and Rauhausers arsenal. And after one fight
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with Mr. McGibney over a reality TV show, it lost all credibility and then was suspended and lost
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entirely.
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98. The patterns of @qritiq and the anti-social accounts track with each other as it relates to Mr.
24
McGibney. For example, after @occupyrebellion got mad at Mr. McGibney for sticking up for an
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embattled reality TV star, @qritiq began casting stones at Mr. McGibney from her Twitter account as
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well. The two attacks were two days apart in August 2013.
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AMENDED COMPLAINT
Page 17
99. @qritiq also interacted with all of Mr. Rauhausers accounts on a regular basis, and tweeted
consistently about Mr. McGibney. She also interacted regularly with her sock accounts
100.
That Lipton is @qritiq is not in doubt. Besides her admission, her ex-boyfriend
repetitively states how he dated Lane Lipton, aka @qritiq. He publishes this statement to anyone that
will listen.
101.
@qritiq also has a close association to Rauhauser. They like the same things, tweet to
each other, and attack opponents together. They share political views and enemies, including Mr.
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102.
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@MissAnonNews_ into their conversations, such that they might have agreement and harmonization
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throughout accounts. Though it is the two of them talking to themselves, it looks like more people.
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103.
On information and belief, we are able to tell when Rauhauser uses the accounts and
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when Lipton uses them. Rauhauser uses a calmer, more evil, deceptive and plotting persona, whereas
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104.
The @OccupyRebellion account was lost in June 2013. After that, Rauhauser and Lipton
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really geared up their revenge and began to attack Mr. McGibney in concert.
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V.
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On information and belief, Rauhauser and Defendant Lane Lipton both possess the login
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106.
On information and belief, one or more of Doe Defendants 1 through 5 also possessed
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Twitter accounts and are responsible for some of the statements detailed below.
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107.
Rauhauser and Lipton used the @MissAnonNews accounts to publish a great number of
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harassing and defamatory tweets about Defendants. These statements were false, made with knowledge
28
of their falsehood, and were made with actual malice, spite and ill will. The statements below were
AMENDED COMPLAINT
Page 18
ostensibly made to support the position that Mr. McGibney was not valuable in the shuttering of revenge
porn websites. These statements include, but are not limited to the following: On August 8, 2013,
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c. I said for weeks this was a set up framing men as pedos. Now u admit SHE
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NEVER EXISTED. . . .
d. YOU SAID YOU KNOW HER IN REAL LIFE AND SHES SO
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GIRL. #Anonymous
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#Anonymous
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f. Either Bullyville is sexually exploiting minors. Or hes lying saying she never
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a. People have the God given RIGHT to tweet, comment, and write whatever the they
[sic] damn well please without Bullyville threatening to kill them.
b. Neither Mr. McGibney, the personnel at ViaView or any staff at BullyVille ever
threatened to kill anyone. That statement is false.
c. On August 27, 2013 that account posted the false and defamatory tweet: Child
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predator Bullyville started threatening the lives of the people who accused
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AMENDED COMPLAINT
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d. One minute later, it tweeted: If youre a friend of Bullyville, you can rape whoever
you want. Hell start threatening to kill the accuser.
e. On January 27, 2014, @MissAnonNews_ tweeted the following series of statements,
directed at Mr. McGibney:
f. Bullyvilles sock talking about free speech again like he knows what it means. If
only someone could stick a rifle in his mouth.
g. For two years pedophile James McGibney has been libeling a woman saying she
CHEATED on her EX-husband with her FATHER.
h. If that was the case, the father would have been RAPING her. But according to
pedo hunter Bullyville, rape & incest is now = AFFAIR.
i. Bullyville and his minions have been threatening to have people raped & murdered,
stalking their children & getting people fired from jobs.
j. Only a deadbeat such as BV would go after someones job & livelihood when hes
never worked a day in his life & relies on others for money.
k. Blackmailing & extorting hundreds of dollars from people to take down the libel
about them from his revenge porn sites. He then re-posts.
l. Free Speech?? Then why sue Hunter Moore for calling you a pedophile? YOU ARE
A PEDOPHILE. You prove it every fucking day.
m. James McGibney is 100 times worse than Hunter Moore. Moore at least admits
what he does. McGibney exceeds Moore.
n. McGibney & the trash around him constantly falsely accusing people of being
pedophiles but he has the gall to sue when they call him one.
o. SUE ME CUNT. You cant. It will only get worse for you and your hooker wife
Christina Marie Orduna McGibney.
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p. You would have to pay your lawyers to come find me. I can get them pro-bono.
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IS A PEDOPHILE.
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Page 20
r. Mr. McGibney, we found an empty email account tied to her Twitter account. You
also cant arrest a Tor node.10
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s. Mr. Gibney, we also suggest you grow a pair of balls, get a life of your own, and
109.
a. The Wikipedia article on James McGibney has been protected (locked from
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editing) to hide the truth about his fake degrees. [retweeted from @rchPr1357]
b. McGibneys company was sued by a couple for defamation that was posted on
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@rchPr1357]
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c. You have bigger things to worry about than your Wikipedia page.
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d. When this is all said and done with, the name James McGibney will be forever tied
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110.
Mr. McGibney:
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a. Why do pedo hunters hang around that bitch [Mr. McGibney]? What happened to
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saving children?
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b. If that blonde is @TeenMomTruth, there are better looking women on cam shows
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c. Was @TeenMomTruth sending her nudes to Bullyville too? Is that why they all
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Tor is in internet randomizing software, used in part to obscure an IP address. Traffic exits a node instead of coming
directly from ones own computer. It provides a degree of anonymity.
AMENDED COMPLAINT
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e. Her drivers license says shes 29. She looks like shes 19. The men she falsely
111.
a. The McGibney deadbeats run several revenge sites & extortion sites where they
b. Even after they pay Bullyville, he re-posts it back up on hi [sic] sites. That extortion
company has now been hit with a RICO suit.11
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c. One of the owners of that extortion site is a defendant listed as a John Doe. More
likely James McGibney.
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d. It would take too much work and efforts for deadbeats James & Christina McGibney
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e. Why did James & Christina McGibney recently move from Nevada to California?
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f. What a great day it would be if someone kicked down their door and permanently
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g. There isnt one single difference between Hunter Moore or the deadbeat
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h. Bullyville and the pedophiles who masquerade as pedo hunters still to this day
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i. There is no difference between James & Christina McGibney and Hunter Moore.
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j. You think you could hide moving from Las Vegas to now living in California?
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k. What will McGibney do when the lawsuits and RICO suit start rolling through? Get
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Rauhauser is known to repetitively discuss filing civil RICO suits against his opponents.
AMENDED COMPLAINT
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l. Bullyvilles revenge porn site is already being sued. The extortion site was hit with
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a RICO suit.
m. Why does Bullyville accuse people of threatening to kill him? Id be surprised if he
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112.
a. Now a failed marine obsessed with stalking women who dont like [a reality TV
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star] has joined forces with Stranahan the pimp and rape supporter.
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b. Because thats what being a pedo hunter these days is all about.
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c. Oh hai, if your wife Christina Marie Orduna McGibney was gang raped, according
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e. Stranahan shoots porn. Many with his wife Lauren. While Bullyville has several
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AMENDED COMPLAINT
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j. @MissAnonNews_ hahaha still talking about subpoenas?? Where did mines go?
women.
113.
Twitter and a little bit of me dies every time I login. I want to kill most people. Starting with BullyVille.
F_cking cesspool.
VI.
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115.
Then he installed analytics, as nearly all sites include, which record visitor's IP address
He then modified the home page of the site to mimic the Wordpress login screen found
Then a link to his site was shared. A BullyVille antagonist clicked the link and thought
the site was down so they tweeted the link and questioned why it was down.
118.
Afterwards the following sequence of events occurred providing us with the IP address of
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a. Apparently bvfiles administrator (admin) sees the link claiming the site is down and
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hits the parody site triggering the iplogger: Time 1:21:33pm from IP: 69.121.50.17
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b. Apparently bvfiles admin sees the page is only loading the wp-admin (the fake login
page)
c. Apparently bvfiles admin then reloads the page 10 seconds later to confirm it's really
down: Time 1:21:43pm from IP: 69.121.50.17
d. Apparently seeing that it seems bvfiles.wordpress.com is truly down. bvfiles admin
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then proceeds to login to fix the website - but not before getting behind a VPN since
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now they were logging into the account and Wordpress.com will log their IP along
AMENDED COMPLAINT
Page 24
with the account information. Time: 1:21 pm IP: 173.188.133.5 This is captured by
the sites form submission software that looks like the Wordpress log in screen it is
not an IP logger.
e. The website administrator is able to determine that the two people hitting the site in
succession are in fact the same person because the IP logger doesn't show any hits
from IP:173.188.133.5. This means that the person using that IP got behind their VPN
after already loading the page, but before trying to sign in to their wordpress account.
If they had loaded the page after getting behind their VPN 173.188.133.5 would have
been captured by the IP logger pixel not just by the form submission.
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119.
It was determined that this was Lane Lipton because the IP address: 69.121.50.17 -
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comes back to Roslyn, NY the known home of Lane Lipton an ardent Bullyville detractor, and that IP
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series had been previously identified as Liptons and @qritiqs. Lipton is the only loud and virulent
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critic of BullyVille and McGibney known to be from the Roslyn, New York area, or anywhere close
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thereby.
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120.
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121.
On information and belief, Lane Liptons phone number ends in 01. The probability of
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The she.purrs Hotmail account was a known or suspected email address for Lipton. A
The Internet Service Provider (ISP) for the IP address in question is the same ISP that
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VII.
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125.
There are only a small handful that are openly hostile to Mr. McGibney, ViaView,
BullyVille.com and CheaterVille.com. These people are all loud about their grievances. On
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AMENDED COMPLAINT
Page 25
information and belief, they also seek each other out, such that they may have strength in numbers.
126.
through their various sock puppet accounts on Twitter and elsewhere, Defendants also conspired to
ruin Plaintiffs relationships with advertisers using at least two different websites,
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127.
Both sites are dedicated to personally attacking Mr. McGibney and his business.
129.
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pedophile? This poll was accompanied by statements strongly suggesting that Mr. McGibney is in fact
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a pedophile. He is not. Defendants posted a picture of McGibneys children under the Pedophilia
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comments with the caption are these children in danger? Statements such as these, relating that
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130.
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involvement: (1) it uses the same Internet Tough Guy image associated with several of Retzlaffs
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aliases; (2) it consistently frames issues by reference to Texas or Texas state law.
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131.
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attempts to destroy Plaintiffs relationships with advertisers. Posts titled The Economic Destruction of
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James McGibney & ViaView and Comments from James McGibneys Advertisers detail the
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132.
On the site, Defendants repeat almost verbatim the same personal and defamatory attacks
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against Mr. McGibney that they directed at him from Twitter: CheaterVille is a revenge porn site; Mr.
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McGibney is a pedophile; Mr. McGibney has a fake degree; Mr. McGibney is engaged in extortion.
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133.
Mr. McGibney earned a Bachelor's degree from Chadwick University while deployed
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overseas as a United States Marine. Chadwick University was established in 1989, licensed and
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approved by the state of Alabama, and offered accredited undergraduate and graduate degree programs
AMENDED COMPLAINT
Page 26
in business and environmental studies. Years later, Mr. McGibney learned that Chadwick was a
diploma mill. Horrified by this revelation, Mr. McGibney decided to earn another Bachelor degree
and did so through Colorado Technical University. He then earned a Masters in criminal justice from
Boston University. Furthermore, he attended Harvard Business School for his Executive Education. Far
from engaging in academic fraud as the defendants state, Mr. McGibney wrote his entrance essay to
Boston University about his experience of having to do his whole bachelors program over because of
issues with Chadwick University. Though defendants are aware of this, they perpetuate the narrative of
lies.
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134.
bvfiles.wordpress.com repeatedly uses the first person plural we when discussing the
On information and belief, Plaintiffs allege that the two sites were run by the same small
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apprehended when she logged into a phony BVFiles site thinking it was hers, and her IP address was
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captured. That IP address resolved to one known to be used by Lipton and @OccupyRebellion (which
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137.
The BVFiles website repeatedly states that they use the twitter account @BV_Truth.
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That account, on information and belief, belongs to Retzlaff, but is used by the Rauhauser, Lipton and
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138.
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139.
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bvfiles.wordpress.com site.
140.
On information and belief, one or more of Doe Defendants 1 through 5 are administrators
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AMENDED COMPLAINT
Page 27
142.
The Wordpress site is presently active. It boasts passing 50,000 views, and closing in on
100,000. They boast daily views of 5,000 to 6,000 individual people. Thus, by their own admission,
143.
As of March 13, 2014, the site was importuning people: Lets Destroy ViaView /
Cheaterville One Lawsuit at a Time! In that post, they sought to have people bring suits that are
contrary to the facts and law such that Plaintiffs would have to shutter their operations.
144.
They state: We want you people to comb through EACH AND EVERYONE of the
posts on Cheaterville.com for people who might want assistance in taking down James McGibney (who
we dont like) and his stupid revenge porn empire. We want you to Google these people and attempt to
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make contact with them via Facebook, email, twitter or any other way that you can think of to let them
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know that, yes, there is something that can be done about this problem and we have the resources and
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145.
Most posts on BVFiles have the parenthesis (who we dont like) after each mention of
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Mr. McGibney. Thus, by their own admission, defendants are acting in concert with malice, spite and ill
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146.
On March 12, 2014, BVFiles listed the name of each board member of ViaView with a
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notation of whether they were doxed and reported yet, and if they were not, the post promised to do so
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soon. As a result, the minor children of at least one of these board members have been publicly
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attacked. One such attack falsely stated, Nick the prick lives with his whore plastic wife at [location
20
redacted] who has a whore teenage daughter who fucks her father.
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147.
Another March 12, 2014 post is titled with the defamation: James McGibney is a
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criminal. It is a re-post of an earlier post, supposedly for all the new readers, and it falsely states that
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Mr. McGibney has a fake diploma and committed academic fraud. In fact, Mr. McGibney has his
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Masters Degree from Boston University and attended Harvard Business School for his Executive
25
Education.
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148.
The site further states that Boston University is conducting an academic fraud
27
investigation. Representatives of Boston University have confirmed to Mr. McGibney that this is not
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true.
AMENDED COMPLAINT
Page 28
149.
In a post about counsel herein that went up right after this lawsuit was initially filed with
just Mr. Retzlaff as a named defendant, the administrators admit that there are four regular
150.
One post falsely relates Mr. McGibneys purported illegal hacking activities.
151.
One post states that a board member of ViaView owns a revenge porn site.
152.
Another post talks about a different ViaView board member owning a revenge porn site.
153.
154.
One post relates comments from advertisers that have left Plaintiffs websites as a result
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155.
Several more posts falsely state Mr. McGibney has a fake college degree.
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156.
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157.
Another post queries: Is James McGibney a Pedophile? and comes to the conclusion
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that because Mr. McGibney has not issued a public denial (he has denied this), he is a pedophile.
158.
Posts that attack, harass, defame and injure plaintiffs go on and on. There are sometimes
15
multiple entries each day. It is clear that a lot of thought, effort and energy goes into maintaining a site
16
dedicated to trying to destroy plaintiffs life and business. While this is a sad and pathetic use of a
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human beings time, it is the reality of this case. This conduct must stop. Accordingly, we sue.
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159.
Plaintiffs repeat and reallege each and every allegation in Paragraphs 1 through 158 of
this Complaint, and reincorporate them by reference as though fully set forth herein.
160.
Plaintiffs are informed and believe and based thereon allege that Defendants had actual or
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constructive knowledge that Plaintiffs had valid contracts with multiple Internet advertising companies
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161.
Plaintiffs are informed and believe and based thereon allege that Defendants formed an
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agreement to work together in order to induce a breach or disruption of Plaintiffs contracts with
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advertisers.
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AMENDED COMPLAINT
Page 29
162.
and systematically made fraudulent and frivolous complaints to Plaintiffs advertising partners and
sponsors.
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163.
interference, including, but not limited to, harm to Mr. McGibneys reputation, emotional distress, lost
earnings, and other pecuniary loss, all of which are in excess of $75,000.
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165.
Plaintiffs repeat and reallege each and every allegation in Paragraphs 1 through 164 of
this Complaint, and reincorporate them by reference as though fully set forth herein.
166.
Plaintiffs are informed and believe and based thereon allege that Defendants had actual or
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constructive knowledge that Plaintiffs had stable business relationships with multiple Internet
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167.
Plaintiffs are informed and believe and based thereon allege that Defendants intended to
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induce a disruption of Plaintiffs business relationships with advertisers, and to damage the prospect of
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168.
Toward that end, Defendants repeatedly and systematically made fraudulent and
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with their business relationships, including, but not limited to, harm to Mr. McGibneys reputation,
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emotional distress, lost earnings, and other pecuniary loss, all of which are in excess of $75,000.
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AMENDED COMPLAINT
Page 30
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171.
Plaintiffs repeat and reallege each and every allegation in Paragraphs 1 through 170 of
this Complaint, and reincorporate them by reference as though fully set forth herein.
172.
intentional and/or reckless disclosure of Mr. McGibneys sensitive personal information on various
social media platforms was, as judged by a reasonable person standard, beyond the bounds of decency
173.
As a direct and proximate result of Defendants conduct alleged herein, Mr. McGibney
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has suffered general and special damages including, without limitation, harm to Mr. McGibneys
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reputation, emotional distress, lost earnings, and other pecuniary loss, all of which are in excess of
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$75,000.
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174.
Plaintiffs repeat and reallege each and every allegation in Paragraphs 1 through 173 of
this Complaint, and reincorporate them by reference as though fully set forth herein.
175.
Defendants tweets and other social media were read by hundreds or thousands of others
Defendants statements as described in Paragraphs 36, 39, 40, 48, 51, 54, 58, 60, 64-66,
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71, 107-112, 129, 132, 144, 147, 150-152, and 155-157 of this Complaint are false and have a natural
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177.
Specifically, Defendants accusations that CheaterVille and BullyVille are revenge porn
To state that someone is a purveyor of revenge porn subjects them to scorn by the
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community. Revenge porn is synonymous with extortion, with the exploitation of children and
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vulnerable communities, with unlawful computer hacking, and is also a crime in many jurisdictions.
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179.
Defendants false accusations that Mr. McGibney is a pedophile or pedo, were false.
They also had a natural tendency to injury Mr. McGibneys reputation and business interests.
AMENDED COMPLAINT
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180.
Defendants statements that Mr. McGibney has a fake degree from Chadwick
university are false and were made with knowledge of their falsehood. Mr. McGibney earned a degree
in good faith. When later Chadwick was exposed as a diploma mill, Mr. McGibney went back to
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181.
investigation into Mr. McGibney are false, as confirmed by the university itself.
182.
Defendants false statements about Mr. McGibneys educationhis fake degree and
the alleged fraud investigationhave a natural tendency to harm Mr. McGibneys reputation and
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183.
Mr. McGibney is informed and believes and based thereon alleges that even though he is
11
not a public official or public figure (and thus a showing of actual malice is not required by the
12
First Amendment), that Defendants nevertheless made the aforementioned statements either knowing
13
they were false or in reckless disregard of the truth and with actual malice, hatred and ill will.
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184.
As a direct and proximate result of Defendants conduct alleged herein, Mr. McGibney
15
has suffered general and special damages including, without limitation, harm to his reputation,
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emotional distress, lost earnings, and other pecuniary loss, all of which are in excess of $75,000.
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185.
Plaintiffs repeat and reallege each and every allegation in Paragraphs 1 through 184 of
this Complaint, and reincorporate them by reference as though fully set forth herein.
186.
Defendants publication of Mr. McGibneys personal details, including the name of his
22
wife and his home address, constituted a public disclosure of private facts and was highly offensive and
23
objectionable, judged by the standard of a reasonable person. None of the defendants postings at issue
24
constitute opinions that are protected under the First Amendment of the United States Constitution.
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Instead, the Defendants postings are in fact verbal acts that are specifically intended to harass,
26
intimidate, annoy, cause worry, terrorize and impose as much mental anguish and pecuniary harm as
27
possible upon McGibney and as much pecuniary and business harm as possible to ViaView, Inc.
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AMENDED COMPLAINT
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187.
The facts intentionally disclosed by Defendants were not of legitimate public concern.
They were personal, private, and wholly irrelevant to any other matter of public concern.
188.
As a direct and proximate result of Retzlaffs conduct alleged herein, Mr. McGibney has
suffered general and special damages including, without limitation, harm to his reputation, emotional
distress, lost earnings, and other pecuniary loss, all of which are in excess of $75,000.
RELATED LITIGATION
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189.
Plaintiffs have filed a suit in Texas state court, but are in the process of withdrawing that
suit.
190.
Plaintiffs are also seeking a temporary restraining order in California Superior Court for
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Plaintiffs hereby demand a jury trial for all causes of action and issues which may be determined
under federal and/or California law.
PRAYER FOR RELIEF
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a. declare that Defendants have tortuously interfered with Plaintiffs contractual relations and/or
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b. preliminarily and permanently enjoin Defendants from continuing to interfere with Plaintiffs
19
contractual relations and/or prospective economic advantage, including, but not limited to
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g. grant Plaintiffs any other relief the court deems just, equitable and proper.
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AMENDED COMPLAINT
Page 33
By:___/s/_Jay Leiderman_________________
Jason S. Leiderman
Attorney for Plaintiffs
JAMES MCGIBNEY
VIAVIEW, INC
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jay~criminal-lawyer.me
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vs.
THOMAS RETZLAFF, an individual,
Defendant.
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Case No .:
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) DEMAND FOR JURY TRIAL
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Plaintiffs James McGibney ("Mr. McGibney"), an individual , and ViaView, Inc. ("ViaView"), a
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corporation (collectively, "Plaintiffs"), set forth the following causes of action against Defendant
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INTRODUCTION
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1. Beginning in October 2013 and continuing through the present, Defendant has relentlessly
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harassed, defamed, cyber-stalked and invaded the privacy of Mr. McGibney, in a deliberate effort to
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emotionally harm him and fmancially damage his business, ViaView, Inc. In addition to committing
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relentless personal attacks which included threats of violence, Defendant carried out a coordinated effort
COMPLAINT
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to ruin Plaintiffs' relationships with advertisers and sponsors, costing Mr. McGibney and ViaView
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thousands of dollars of revenue. Mr. McGibney asks this court to right these financial and personal
harms.
PAJRTIES
2. Plaintiff Mr. McGibney, at all relevant times mentioned herein, was and is now an individual
residing and domiciled in San Jose, Cal ifornia. He also owns residential property in Las Vegas, Nevada.
3. Plaintiff ViaView is a Delaware corporation with its business centers in San Jose, California and
Las Vegas, Nevada. Via View is the owner and operator of the popular websites
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http://www.cheaterville.com ("CheaterVille").
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4. Plaintiffs are informed and believe and based thereon allege that Defendant Retzlaff was and is
now an individual residing and domiciled in Tarrant County, Texas.
JURISDICTION
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5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332, as the parties in this case
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are completely diverse and the matter in controversy exceeds, exclusive of interest and costs, the sum of
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$75,000. Further, the Court has pendent and supplemental jurisdiction over the state law claims alleged
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VENUE
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6. A substantial part of the events giving rise to the claims sued upon herein occurred in San Jose,
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California.
7. Retzlaff is a resident of Texas, but has directed the conduct complained of herein at Plaintiffs,
who at all relevant times based in San Jose.
8. Retzlaff knew that Mr. McGibney's residence and domicile were in San Jose, California.
Indeed, he published Mr. McGibney's San Jose address.
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9. On information and belief, Retzlaff knew Plaintiff ViaView was based on San Jose, California.
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10. On information and belief, Retzlaff intentionally directed his conduct in order to cause harm to
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11. Therefore, venue lies in the Northern District of California pursuant to 28 U.S.C. 1391(b)(2),
and this court's exercise of jurisdiction in this case is reasonable and appropriate.
FACTUAL ALLEGATIONS
4 I.
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"Websites").
13. The Websites aim to give a voice to those victimized by bullying (BullyVille) or romantic
infidelity (CheaterVille) by providing a public platform upon which victims may tell their stories.
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14. Like many Internet-based businesses, the primary revenue source for the Websites comes from
advettisers.
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15. All ViaView sites average approximately one million individual and unique user hits per month.
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16. Plaintiffs are and were at all times relevant to this suit parties to numerous contracts with
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a. Spokeo.com
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b. Lijit.com
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c. Advertise.com
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d. Godaddy.com
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e. Digit covers
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17. Combined advertising revenue lost as the resu lt of defendant's conduct exceeds $19,300 per
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month. This loss does not include other losses described herein. The calculations of loss for the effect
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upon other advertisers that would have been drawn to the sites, or from the loss of clicks toward
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advertisers that have remained, attributable directly to the direct harassment of Mr. McGibney or the
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harassment of celebrity spokespeople described in detail herein, has ratcheted up the loss to at least
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18. Prior to Retzlaff's conduct complained of herein, Plaintiffs enjoyed a good working relationship
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with his advertisers listed in paragraph 11 and most advertisers had been doing business with ViaView
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continuously for two or more years. Visits to his site were growing and he had no problems with
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COMPLAINT
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They had the further purpose of creating the illusion of broad support for Retzlaffs extreme views while
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J.
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I.
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27. Plaintiffs have taken numerous steps to confirm that it is Retz laff behind each alias or "sock"
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listed herein, including but not limited to lawfully tracking internet protocol addresses, mac addresses 1
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and matching email addresses between accounts. Mr. Retzlaff does not take significant steps to conceal
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his identity online besides using multiple names and accounts and a less-than-stable VPN 2 connection.
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Plaintiff is certain he can prove that all accounts complained of herein belong to Retzlaff.
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I lnternet Protocol or IP addresses are unique addresses that show what computer is creating the packets sent through the
internet. A MAC address is the functional equivalent of a serial number. Both are part of the metadata that computers
exchange as part of routine internet traffic, including visiting websites and sending emails.
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A VPN, or " virtual private network," is a technology that allows a user to obscure his true IP address by encrypting that
user's traffic and routing it through a separate IP address.
COMPLAINT
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28. Pla intiffs reasonably anticipate that Retz laff will continue to create multip le a liases to harass,
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sta lk, terrorize and defame Plaintiffs and their business partners in order to continue inflicting emotional
29. On October 30,2013, Retzlaff publicly tweeted from the @ MrTexxxan account (an account
associated with revenge porn website www.texxxan.com) that he was "surprised no o ne has shot them
foo ls [Mr. Me Gibney] yet. lots of crazy ppl in the world off their meds"
3 1. On November 2, 2013, Retzlaff, posting using alias " LongJohnSil ve r," wrote severa l paragraphs
in the comments section of an a tticle published on Bully Ville targeting Mr. McGibney, stating, " If I wa
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listed on his website I would put a bullet in his head. It' s as simple as that. .. . You walk up behind
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him at a Wal-mart of whatnot, you shot [sic] him and take off, dump the gun in Lake Mead or
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somewhere and you' re go [sic] to go. So go ahead James, keep it up. Sooner or later you 're going to
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step on the wrong set of toes and you' re going to come across a real life tough guy, not an internet tough
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guy like a Hunter Moore,l31 and it's gonna cost you and your fa mily your lives."
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32. On November 2, 2013, Retzlaff replied to a comment on Bu llyVille with his "LongJohnSilver"
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ali as "Crazy people do not care if they get caught. They will kill you regardless as to the consequences
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to them because they are crazy. So while it's a ll well and good that the FBI will eventua lly catch them
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(ass uming they' re not on e ofthe 40% who literally get away with murder), it does you little good if
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33. On or around November 3, 201 3, Retzlaff, using alias " Scott Jewels," wrote in the comments
section of an article discussing a lawsuit filed by a stalking victim:
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b. " Obviously [a famous single mother] 4 and Bullyville's allegations are a comp lete lie.
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That f@ggot who runs BullyVille, James McGibney was screaming and hollering
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Hunter Moore is a well-known personality who p ioneered the "revenge porn" website genre on his site, isanyoneup.com.
Mr. McGibney secured a $250,000 judgment against Hunter Moore for conduct similar to that alleged here. Moore is
currently under federal indictment for hacking conspiracy charges.
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McGibney became involved in the defense of a woman when she was viciously attacked by people over the internet. T he
comments referenced in paragraphs 33 reflect his involvement in that suit.
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about how he (McGibney) was going to get Jon and all of his supporters and how Jon
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was a thief and physically abused [the mother] and all sorts of nonsense. I hope Jon
d. "James and Christina McGibney live at [redacted for safety], they own a revenge porn
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website Cheaterville."
34. On the same website, at around the same time, Retzlaff posted the name of Mr. McGibney's wife
and their home address a second time.
35. On the same website, Retzlaff amplified his harassment by also using the alias "Molly Santucci,''
agreeably replying to posts by "Scott Jewels."
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36. On November 15, 2013, Retzlaff again used the alias Molly Santucci to directly contact DJ
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ASHBA via Facebook. Mr. Ashba, as is described below, is a musician and celebrity spokesperson for
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BullyVille. Mr. Ashba was falsely told that CheaterVille is a "revenge porn website" and Retzlaff, via
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"sock" accounts encouraged DJ ASHBA to " remove [his] endorsement and end [his] relationship with
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37. On the same day, Retzlaff, using Twitter alias @KellySwift4, tweeted a similar statement to Mr.
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Ashba: "@DjASHBA Why do you support revenge porn w/ ur BullyVille endorsements? Don't u know
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38. Mr. Ashba is a musician with a world-famous rock group. His endorsement created a lot of
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interest in BullyVille from advertisers new and old. Plaintiffs estimate he drove hundreds of thousands
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39. After receiving these and other unwanted messages from Retzlaff, and learning that Retz laff was
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convicted of a felony and served time in prison, Mr. Ashba became fearful for his safety and the safety
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of his family.
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40. Mr. Ashba has reduced his role in BullyVille significantly as a result of Retzlaff's conduct and
because Mr. Ashba has concerns for his personal safety that he did not previously have.
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41. Plaintiffs estimate the loss of Mr. Ashba as a sponsor has, and will continue to, cost Plaintiffs at
least $9,300 per month in advertising revenue as a result of fewer site visitors and significantly less
42. Retzlaff has not only harassed Mr. Ashba in connection with his campaign against Mr.
McGibney. He has harassed Via View's PR firm, Lexicon Public Relations and celebrity Becca Tobin
from GLEE on FOX. Each distanced themselves from BullyVille due to safety concerns caused by
Retzlaff s harassment campaign. This has caused an additional loss of revenue for Via View.
43. Again on November 15,2013, using Twitter alias @Doxing_McGibney,5 Retzlaff publicly
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tweeted Mr. McGibney's wife's name and their Las Vegas address. Retzlaff further tweeted Mr.
McGibhey 's San Jose address.
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44. On November 15, and November 26,2013, Retzlaff, using email alias James Smith, sent
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harassing e-mails to blogger Adam Steinbaugh. In these e-mails, Retzlaff threatened to release private
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a. "I happen to work for a large multi -national company overseas, as I mentioned to you
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before. As such, my HR Dept. has access to the LexisNexis Accurint LE Plus and
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ChoicePoint CLEAR databases so as to fulfill all of our Govt contracts and regulatory
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I would have access to a whole host of valuable personal, financial, and legal
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information. What kind of car they drive, who they bank with, where they have lived
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at for the past 20 yrs. (and who with), credit reports, traffic and arrest info, property
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transactions, civil cases, any kind of hunting, fishing or drivers licenses, or trade
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licenses, and just pages and pages worth of stuff. But not just on them, but on each of
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their family members, too! And the family members of those family members."
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b. "And if that information on all those people found its way to a document hosting site,
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well, that would be just too bad, wou ldn' t it? But then again, you guys started this
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" Dox" is a common Internet abbreviation for "documents," usually referring to personal information. "Doxing" is the acto
publishing such personal information.
COMPLAINT
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game first. So how would Mrs. McGibney feel to find her personal details doxed or
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her family members doxed? Or Mr. & Mrs. Steinbaugh? You think they all want to
be involved in you guys' game of doxing people and ordering twitter followers to
'destroy their li ves' like Bullyville and Cpt Obvious always call for?"
45. On November 28, 2013, Retzlaff, on the website radaronline.com, using alias Scott Jewels,
publicly wrote: "Now he [Mr. McGibney] throws rocks at random people from his Bullyville website.
McGibney also runs REVENGE PORN website Cheaterville. McGibney charges people $199 in order
46. That statement is false and, as with all of the others, it was made with the knowledge of its
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falsehood and with actual malice. Neither Mr. McGibney, nor ViaView, charge anyone to remove their
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posts from CheaterVille, nor do they allow pornography- or any nudity for that matter.
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47. On that same date, and through his @mrtexxxan Twitter account, Defendant Retzlaff tweeted "It
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will be reall y funny seeing someone post pies of ur wife Christina when she is shopping at Smith 's with
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ur two kids."
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48. On December 6, 20 13, Retzlaff, using alias DickHertz, publicly posted on TheDirty.com : "James
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& Christina McGibney run Bullyville website, a site that HATES Nik and the Dirty. Yet McGibney and
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his wife also run revenge pom site CheaterVil le! And they also work with scam take Down Hammer
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site TruthlnPosting.com to charge little girls $199 to remove Cheaterville pies and posts. Talk about
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hypocrites! McGibney and his wife scam girls with revenge porn, but they hate Hunter Moore and
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Nik!!!"
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49. This is another complete and intentional lie by Retzlaff. Users of CheaterVille have the option to
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login and make their post invisible. Furthermore, CheaterVi lle adheres to all DMCA takedown requests
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within 48 hours.
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50. Defendant Retzlaff has claimed on multiple occasions that ViaView and McGibney own
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TruthlnPosting, which is another false claim. TruthlnPosting is an arbitration service, run by licensed
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mediators and attorneys. Neither Plaintiff owns T IP, nor do they "charge little g irls $ 199 to remove
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51. On December II , 20 13, Retzlaff, using Facebook alias Kelly Swift, publicly contacted Plaintiffs'
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business pmtner Brickhouse Security, stating: " Why are you people advettising on a revenge
pornography website? I find this VERY DISGUE STING!! [sic] You are helping to support the
victimization of women and children!!! Cheaterville.com is a revenge porn website that charges girls
$199 to remove photos. Same with Bullyville.com, its [sic] all terrible and you should not advertise on
52. Brickhouse Security's Facebook account repli ed: "Thank you for bringing this up to our
attention. We certainly do not want to be associated with any websites that would damage our brand.
We will look into the matter and take the necessary actions to prevent this from happening again. Thank
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53. Shortly thereafter, Brickhouse Security pulled all ads from CheaterVille.
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54 . On December 17, 2013, Retzlaff, using Twitter alias @PedoCaptain, publicly tweeted at
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BullyVi lle ' s Twitter account: "@BullyVille I would like to bury a hatchet right in your fucking
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55 . On or around December 26, 20 13, Retzlaff, using Facebook alias Kelly Swift, publicly posted
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further accusations on the Facebook page of a BullyVille advertiser that Mr. McGibney was operating a
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56. On December 30, 2013 and January 7, 20 14, Retzlaff, using E-mail alias James Smith, sent Mr.
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McGibney harassing e-mails which mentioned "advertisers . . . dropping you like a bad habit" and
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"celebrities [who] are runny [sic.] away as fast as they can." It conti nued: "You've got a business to run
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here and putting up crazy, irrational tweets isn't go ing to make customers comf01table or advettisers
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happy. "
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57. On January 15, 20 14, Retzlaff, using Twitter alias @bright_Anon publicly tweeted: "[] Did u
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know that McGibney charges girls $199 to remove their intimate photos and personal details?
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Bullyville also works with his... " Defendant Retz laff made claims that anti-bullying website BullyVille
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was a " revenge porn website." This claim is, of course, absolutely false and without any merit
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whatsoever, was made with the knowledge of its falsehood and with actual spite, ill will and malice.
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58. On January 16, 18, and 22 2014, Retzlaff, using E-mail alias James Sm ith, sent Mr. McGibney
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further e-ma ils disc ussing his re lationship with advertisers: "And is not call ing an advertiser to complain
a perfectly legitimate form of expression? . .. The only person killing your advet1ising is you, sir. And
59. Thee-mails acknowledge Retzlaffs intent to ruin Plaintiffs' re lationships with advet1isers: "I
spent a total for 30 minutes- all together - with my complaints to your advertisers. That includes time
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60. On January 23,2014, Retzlaff, using Twitter alias @BV_Truther, publicly tweeted:
"@Bully Ville Yes, because getting into a pointless twitter fight w/ someone who has nothing to lose is a
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winning strategy for ur family." This was a response to a tweet from BullyVille which read , "Strong
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people stand up for themselves but the strongest people stand up for others." The header (description)
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for @ BY_Truther was "exposing the truth about Bullyville's lies by calling HR Dept's one at a time and
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getting ads on revenge porn sites shut down as soon as they pop up!"
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61. On February 2, 2014, Retzlaff, posting on an anonymous account, submitted pictures and text
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disparaging Mr. McGibney on www.myex.com, anactual revenge porn website.6 The post was titled
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"James McGibney is a lying hypocrite who cheats! !" and stated that Mr. McGibney "extot1s money
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from young girls and their families over the internet. He is the scum of the earth."
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62. This post, which created a web page titled "Naked Pies of James A. McGibney - Las Vegas -
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Nevada: MyEx.com" appeared in Google search results for James McGibney, meaning that when
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someone would search for information about PlaintiffMcGibney, this false and defamatory post would
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be listed in the results. The post did not in fact include any naked pictures.
63. On February 8, 2014, Retzlaff, using E-mail alias Dean Allen, sent an incredibly lengthy e-mail
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to numerous members of Via View's board of directors, falsely claiming that "Cheaterville.com is a
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revenge porn website that engages in the abuse of young women and girls (and men!) by posting their
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The very top of the front page ofwww.myex.com says "GET REVENGE." It specifically hosts "Nude Photos" along with
names, ages, and locations of the subjects of these nude photos, which are posted without the subject's consent. A clearer
violation of California's revenge porn law, Penal Code 653.2(a)(2), is barely imaginable.
COMPLAINT
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64. In this e-mail, Retzlaff ventured into extortion by stating that McGibney needed to delete all
"Ville" websites and permanently delete all data contained within each website and his @bullyville
65. In the same e-mail, Retzlaff admits knowledge that CheaterVille "does not post nude photos."
66. On February 8, 2014, Retzlaff, using alias @BV_Truth, falsely tweeted that Mr. McGibney had
threatened him: "@Sarelya23 And how difficult is it to send yourself a nasty email and then claim that
67. On February 9, 2014, Retzlaff, using Twitter alias @BY_Truth, tweeted: " I wonder what
happened to all the advertisers on Bullyville & Cheaterville. Several months ago it used to be FILLED
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with ads." Shortly thereafter he launched a blog via the "wordpress" platform which not only continues
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to defame and libel Plaintiffs McGibney and ViaView, but is currently being used to viciously attack
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numerous board members of ViaView. As one example, Retzlaff created and posted a poll asking
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whether James McGibney is a pedophile. This poll was accompanied by statements strongly suggesting
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that Mr. McGibney is in fact a pedophile. He is not. Defendant Retzlaff posted a picture of MeG ibney' s
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children under the Pedophilia comments with the caption "are these children in danger?"
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68. During this time period (October 2013 -present), Retzlaff posted numerous harassing and
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coordinating attacks against McGibney and ViaView with other blog members on Via View advertisers.
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Retzlaff still operates an active blog dedicated to stalking and defaming Mr. McGibney and Via View.
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69. As recently as March 3, 2014, Defendant Retzlaff sent an email to the school principal of one of
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the board members children and caused such fear that the child has been removed from the school for
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her safety and for the safety of other children. The local Police Department in Orange County were
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immediately contacted and an investigation has been launched against Defendant Retzlaff. This is now
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the fifth police investigation launched against Thomas Retzlaff across the country (Las Vegas, Northern
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70. As a direct result of Retzlaff s harassment of ViaView's board of directors and business partners,
two potential investors in ViaView began to fear for their safety. This fear of Retzlaff caused these two
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COMPLAINT
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80. Plaintiffs are informed and believe and based thereon allege that Retzlaff had actual or
constructive knowledge that Plaintiffs had stable business relationships with multiple Internet
81. Plaintiffs are informed and believe and based thereon allege that Retzlaff intended to induce a
disruption of Plaintiffs' business relationships with advertisers, and to damage the prospect offuture
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82. Toward that end, Retzlaff repeatedly and systematically made fraudulent and frivolous
complaints to Plaintiffs' advertising partners and sponsors.
83. As a direct result of Retzlaffs fraudulent contact with Plaintiffs' business partners, those
business relationships were disrupted and/or terminated.
84. Plaintiffs suffered general and special damages as a result of Retzlaffs interference with their
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business relationships, including, but not limited to, harm to Mr. McGibney' s reputation, emotional
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distress, lost earnings, and other pecuniary loss, all ofwhich are in excess of$75,000.
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85. Plaintiffs repeat and reallege each and every allegation in Paragraphs 1 through 84 ofthis
Complaint, and reincorporate them by reference as though fully set forth herein.
86. Retzlaff s intentional and/or reckless campaign of harassment, death threats, and intentional
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and/or reckless disclosure of Mr. McGibney's sensitive personal information on various social media
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platforms was, as judged by a reasonable person standard, beyond the bounds of decency and is
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87. As a direct and proximate result of Retzlaffs conduct alleged herein, Mr. McGibney has suffere
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general and special damages including, without limitation, harm to Mr. McGibney's reputation,
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emotional distress, lost earnings, and other pecuniary loss, all of which are in excess of $75,000.
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88. Plaintiffs repeat and reallege each and every allegation in Paragraphs 1 through 87 of this
Complaint, and reincorporate them by reference as though fully set forth herein.
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89. Retzlaff's tweets and other social media were read by hundreds or thousands of others on the
Internet, and constitute publication under the law.
90. Retzlaff's statements as described in Paragraphs 33, 36, 37, 43, 45, 48 , 51, 55, 57, 61 -63,66 and
67 of this Complaint are false and have a natural tendency to Injure the reputation and financial interests
of Pfaintiffs.
91. Specifically, Retzlaff's accusations that CheaterVille and BullyVille are "revenge porn websites"
were false and defamatory. These false statements had a natural tendency to injure Mr. McGibney's
reputation and business interests, and were, in fact, deliberately made in order to harm Mr. McGibney.
92. Using Twitter account @bv_truther Retzlaff posted links to a known Pedophilia site which had
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numerous rantings and ramblings about Mr. McGibney. Mr. McGibney is a married father with three
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young children. He and his family live in fear, suffer tremendous anxiety and worry. His wife has
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suffered severe stress and anxiety about her safety, Mr. McGibney's safety and the safety of their
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children.
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93. Mr. McGibney is informed and believes and based thereon alleges that even though he is not a
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"public official" or "public figure" (and thus a showing of "actual malice" is not required by the First
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Amendment), that Retzlaff nevertheless made the aforementioned statements either knowing they were
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false or in reckless disregard of the truth and with actual malice, hatred and ill will.
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94. As a direct and proximate result of Retzlaff' s conduct alleged herein, Mr. McGibney has suffere
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general and special damages including, without limitation, harm to his reputation, emotional distress,
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lost earnings, and other pecuniary loss, all of which are in excess of $75,000.
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95. Plaintiffs repeat and reallege each and every allegation in Paragraphs 1 through 94 of this
Complaint, and reincorporate them by reference as though fully set forth herein.
96. Retzlaff's publication of Mr. McGibney's personal details, including the name of his wife and
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his home address, constituted a public disclosure of private facts and was highly offensive and
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objectionable, judged by the standard of a reasonable person. None of the defendant's postings at issue
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constitute opinions that are protected under the First Amendment of the United States Constitution.
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Instead, the Defendants postings are in fact verbal acts that are specifically intended to harass,
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intimidate, annoy, cause worry, terrorize and impose as much mental anguish and pecuniary harm as
possible upon McGibney and as much pecuniary and business harm as possib le to ViaView, Inc.
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97. The facts intentionally disclosed by Retzlaff were not of legitimate public concern. They were
personal, private, and wholly irrelevant to any other matter of public concern.
98. As a direct and proximate result of Retzlaff's conduct alleged herein, Mr. McGibney has suffere
general and special damages including, without limitation, harm to his reputation, emotional distress,
lost earnings, and other pecuniary loss, all of which are in excess of $75,000.
RELATED LITIGATION
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99. Plaintiffs have filed a suit in Texas state court, but are in the process of withdrawing that suit.
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Plaintiffs intend to refile separate suits against each of the named defendants in the Texas suit.
100.
Plaintiffs are also seeking a temporary restraining order in California Superior Court for
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Plaintiffs hereby demand a jury trial for all causes of action and issues which may be detemiined
under federal and/or California law.
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a. declare that Retzlaff has tortuously interfered with Plaintiffs' contractual relations
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g. grant Plaintiffs any other relief the court deems just, equitable and proper.
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COMPLAINT
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Dated: 6 March 2014
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By:_ /s/ _Jay Leiderman
Jason S. Leiderman
Attorney for Plaintiffs
JAMES MCGIBNEY
VIA VIEW, INC
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COMPLAINT
Page 17
NO. 67-270669-14
JAMES MCGIBNEY and
VIAVIEW, INC.,
Plaintiffs,
v.
THOMAS RETZLAFF, LORA
LUSHER, JENNIFER
DALLESANDRO, NEAL
RAUHAUSER,
MISSANNONEWS, JANE DOE 1,
JANE DOE 2, JANE DOE 3,
JANE DOE 4, AND JANE DOE 5,
Defendants
trial by jury under TEX. CONST. Art. 1, 15, and makes this demand for a
jury trial at least 30 days before the date set for trial. Rauhauser tenders the
jury fee of $30.00 herewith, as required by TEX. GOVT CODE 51.604.
IV. COUNTERCLAIMS
4.
(2)
(3)
(4)
TEX. CIV. PRAC. & REM. CODE 10.001; Barkhausen v. Craycom, Inc., 178
S.W.3d 413, 420 (Tex. App.Houston [1st Dist.] 2005, pet. denied). The
statutes use of the conjunctive and means that each pleading must satisfy
McGibney v. Retzlaff
Neal Rauhausers Original Answer, Jury Demand, Requests for Disclosure, and Counterclaims
all four requirements. Id. The signer certifies that each claim and each
allegation is based on the signatorys best knowledge, information, and
belief, formed after reasonable inquiry. Low v. Henry, 221 S.W.3d 609,
614 (Tex. 2007). The statute dictates that each claim and each allegation be
individually evaluated for support. Id. Each claim against each defendant
must satisfy chapter 10. Id.
5.
fees and costs incurred in his defense of a frivolous suit. TEX. CIV. PRAC. &
REM. CODE 10.004(c)(3). The test is objectivewhether allegations in the
pleading lack evidentiary support or legal foundation. See TEX. CIV. PRAC.
& REM. CODE 10.001(2)-(3). Although a party may be sanctioned under
10.001(1) for presenting a pleading for an improper purpose, the tests for a
nonfrivolous legal basis under 10.001(2) and for evidentiary support for
contentions under 10.001(3) are not what plaintiffs subjectively intended
when they signed and filed the offending pleading. Thus, a frivolous suit
can subject a plaintiff or counsel to sanction even if the violation was not
willful.
McGibney v. Retzlaff
Defendant Neal Rauhausers Original Answer, Jury Demand, Requests for Disclosure, and Counterclaims
judgment that plaintiffs take nothing by their claims in this suit, and that
Rauhauser have and recover of plaintiffs:
(i)
(ii)
(iii)
McGibney v. Retzlaff
Neal Rauhausers Original Answer, Jury Demand, Requests for Disclosure, and Counterclaims
Respectfully submitted,
By:
/s/ Jeffrey L. Dorrell
Jeffrey L. Dorrell
State Bar No. 00787386
jdorrell@hanszenlaporte.com
Philip A. Meyer
State Bar No. 00784597
pmeyer@hanszenlaporte.com
11767 Katy Freeway, Suite 850
Houston, Texas 77079
Telephone: 713-522-9444
FAX: 713-524-2580
ATTORNEYS FOR DEFENDANT NEAL RAUHAUSER
.
McGibney v. Retzlaff
Defendant Neal Rauhausers Original Answer, Jury Demand, Requests for Disclosure, and Counterclaims
CERTIFICATE OF SERVICE
I hereby certify that on
foregoing was sent by:
3-18
Hand delivery
Certified mail
Telephonic document transfer
E-service in accordance with TEX. R. CIV. P. 21a(a)(1)
JEFFREY L. DORRELL
McGibney v. Retzlaff
Neal Rauhausers Original Answer, Jury Demand, Requests for Disclosure, and Counterclaims
NO. 67-270669-14
v.
THOMAS RETZLAFF, LORA
LUSHER, JENNIFER
D' ALLESANDRO, NEAL
RAUHAUSER,
MISSANNONEWS, JANE DOE 1,
JANE DOE 2, JANE DOE 3,
JANE DOE 4, AND JANE DOE 5,
Defendants
I.
PEN. CODE 22.07, 1 42.07, and 42.072" ansmg from alleged Internet
postings that plaintiffs characterize as "unlawful verbal acts." 2
2.
Court personnel, as of March 19, 2014, "none of the citations had even been
picked up." Although plaintiffs seek injunctive relief after what they refer to
as a "Temporary Injunction Trial,"3 plaintiffs have not sought a temporary
restraining order, requested a temporary injunction hearing, or taken any
other action to obtain such relief from the Court. This is because plaintiffs
cannot make the required showings.
3.
4.
as Exhibits A-F to establish facts not apparent from the record, and
incorporates them by reference.
Act requires the Court to determine at an early stage whether a suit affecting
such rights has merit. Rauhuser invokes the Court's determination by filing
this "motion to dismiss." TEX. CIV. PRAC. & REM. CODE 27.003(a), (b).
7.
The filing of this motion stays all discovery until the Court
rules on the motion. Id. 27.003(c). The Court must rule on the motion "not
later than the 30th day following the date of the hearing on the motion." Jd.
27.005(a). The hearing on the motion must be held within 60 days of
service of the motion, in most cases. Id. 27.004(a).
8.
Court may allow "specified and limited discovery relevant to the motion."
!d. 27.006(b ). Even then, the Court must hold the hearing on this motion
"not more than 120 days after service ofthe motion." !d. 27.004(c).
9.
must award Rauhauser court costs, attorney fees, and other expenses
incurred in defending against the action as justice and equity may require.
(2)
sanctions against the party who brought the legal
action as the court determines is sufficient to deter the party who
brought the action from bringing similar actions described in
this chapter.
10.
legal action against the moving party if the moving party shows by a
preponderance of the evidence that the legal action is based on, relates to, or
is in response to the party's exercise of ... the right of free speech." !d.
27.005(b)(l); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 723
(Tex. App.-Houston [14th Dist.] 2013, pet. denied). The exception:
The court may not dismiss a legal action under this section if the
party bringing the legal action establishes by clear and specific
evidence a prima facie case for each essential element of the
claim in question.
!d. at 723-24; 27.005(c); see also Farias v. Garza, 2014 Tex. App. LEXIS
907 at *4-5 (Tex. App.-San Antonio January 29, 2014, n.p.h.) (reversing
trial court' s refusal to dismiss).
11 .
liberally to fully effectuate its purpose and intent to encourage and safeguard
a defendant's constitutional rights. See id. 27.002, 27.011.
McGib11ey v. Retzlaff
Defen dant Neal Rauhauser's Motion to Dismiss Under the Citizen Participation Act
12.
(2)
(3)
" It will be really funny seeing someone post pies of your wife
"I have Twitter and a little bit of me dies everytime (sic) I log
in. I want to kill most people. Starting with Bullyville.
F_eking damn cesspool."
!d.,~
17.
McGib11ey v. Retzlaff
Defendant Neal Rauhauser's Motion to Dismiss Under the Citizen Participation Act
15.
Yes.
IS
one of
v. Sullivan , 376 U.S. 254, 279-80 (1964), required public officials to prove
actual malice when suing for defamation involving public issues. Bentley v.
Bunton, 94 S.W.3d 561, 590 (Tex. 2002). Later, the court extended the
New York Times actual-malice standard to public figures . Curtis Publ'g v.
Butts, 388 U.S. 130, 155 (1967). In the wake of Snyder v. Phelps, 131 S.Ct.
1207 (20 11 ), 5 it is doubtful that the public-figure status of the plaintiff
remains important for protection of the defendant speaker.
However,
following section, "How Hateful Can Comment on Public Figures Be Without Losing
Constitutional Protection?"
6
See Exhibit E, McGibney's Original Complaint in Cause No. A-12667156-C; McGibney v. Moore; in the District Court of Clark County, Nevada; a
defamation suit filed against Moore after Moore allegedly called McGibney a
"pedophile" and a "child abuser" and accused him of possessing "child pornography."
McGibiii!JI v. Retzlaff
Defendant Neal Rauhauser's Motion to Dismiss Under the Citizen Participation Act
18.
See supra, n. 4.
. The word "blog" is a shortened version of the term "web log," and refers
to a website on which authors offer free and continuously updated opinion, information,
or satirical comment concerning topics of interest to readers who usually share similar
political or philosophical viewpoints. A "blogger" is a person who creates a "blog."
9
See Plaintiffs Original Petition, ~ 15.
10
See Plaintiffs Original Petition,~~ 15-16.
8
10
19.
20.
figures harshly-even cruelly and unfairly-is one the framers of the First
Amendment used with relish. For example, in the presidential election of
1800, one political opponent wrote in the "blogs" of his day that incumbent
president John Adams was "old, querulous, bald, blind, crippled, [and]
toothless." 12 An operative hired by Thomas Jefferson, who was challenging
Adams for the presidency, added:
II
11
"Public figures" are not limited to those who, like Jefferson and
13
12
says, "We were drunk off our God-fearing asses," and, "Mom looked better
than a Baptist whore with a $100 donation." 16
22.
Hustler
Magazine, Inc. , 485 U.S. at 47-48. Falwell obtained a judgment in the trial
court that was upheld in the Fourth Circuit. However, in one of the most
dramatic First Amendment cases of the 20th Century, the U.S. Supreme
Court unanimously struck down the award and held that Hustler 's ad parody
was protected speech:
Despite their sometimes caustic nature, from the early cartoon
portraying George Washington as an ass down to the present
day, graphic depictions and satirical cartoons have played a
prominent role in public and political debate ... [and)
undoubtedly had an effect on the course and outcome of
contemporaneous debate. Lincoln's tall, gangling posture,
Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's
jutting jaw and cigarette holder have been memorialized by
political cartoons with an effect that could not have been
obtained by the photographer or the portrait artist. From the
viewpoint of history it is clear that our political discourse would
have been considerably poorer without them.
_
Hustler Magazine, Inc., 485 U.S. at 54-55. As the U.S. Supreme Court
added in a different case:
16
McGib11ey v. Retzlaff
Defendant Neal Rauhauser's Motion to Dismiss Under the Citizen Participation Act
13
U.S . Supreme Court extended the protection of free speech even further in
Snyder v. Phelps, 131 S.Ct. 1207 (2011). In Snyder, the court held for the
first time that the target of the offensive speech did not have to be a public
figure for the speech to be protected. !d. at 1228 (dissent by Alito, J.).
The
14
24.
speech that "occupies the highest rung of the hierarchy of First Amendment
values, and is entitled to special protection." ld. at 1215 [citation omitted].
The court concluded:
Speech is powerful. It can stir people to action, move them to
tears of both joy and sorrow, and-as it did here-inflict great
pain. On the facts before us, we cannot react to that pain by
punishing the speaker. As a Nation we have chosen a different
course-to protect even hurtful speech on public issues to ensure
that we do not stifle public debate. That choice requires that we
shield Westboro from tort liability for its picketing in this case.
McGib11ey v. Retzlaff
Defendant Neal Rauhauser's Motion to Dismiss Under the Citizen Participation Act
15
25.
17
16
free speech.' See Rehak, 404 S.W.3d at 733, citing TEx. Crv. PRAC. & REM.
CODE ANN. 27.001(6), 27.005(b)(l).
The same protections which the First Amendment affords
defendants from libel claims also protect them from non-libel
claims based on the same publication.
Energy Invs. v. Sheldon, 182 S.W.3d 372, 378 (Tex. App. -Beaumont
2005, no pet.); KTRK Television v. Felder, 950 S.W.2d 100, 107-08 (Tex.
App.-Houston [14th Dist.] 1997, no pet.).
26.
McGib11ey v. Retzlaff
Defendant Neal Rauhauser's Motion to Dismiss Under the Citizen Participation Act
17
27.
evidence that plaintiffs' petition is based on, related to, or in response to the
exercise of constitutionally protected rights under the Act, the burden shifts
to plaintiffs-each of them- to establish by clear and specific evidence a
prima facie case for each essential element of each of their approximately
eight causes of action, which they denominate as follows:
(i)
defamation;
(ii)
(iii)
harassment;
(iv)
stalking;
(v)
(vi)
18
Ill. CONCLUSION
28.
that plaintiffs' suit impinges on his exercise of the right of free speech, the
Court must dismiss the suit unless each plaintiff produces "clear and specific
evidence" establishing a prima facie case for each element of each of
plaintiffs' eight causes of action.
IV. PRAYER
29.
For these reasons, Rauhauser asks the Court to set his motion to
dismiss plaintiffs' claims for a hearing, and, after the hearing, grant
Rauhauser's motion; dismiss plaintiffs' suit with prejudice; award
Rauhauser his court costs, reasonable attorney fees, and other expenses
incurred in defending against plaintiffs' legal action as justice and equity
may require; and impose sanctions that the Court determines are sufficient to
deter plaintiffs from bringing similar actions in the future.
McGib11ey v. Retzlaff
Defendant Neal Rauhauser's Motion to Dismiss Under the Citizen Participation Act
19
Respectfully submitted,
20
CERTIFICATE OF SERVICE
I hereby certify that on - ----=-3-=-2=0__, 2014, a true and correct copy of the
foregoing was sent by:
_x_
Hand delivery
Certified mail
Telephonic document transfer
E-service in accordance with TEX. R. CIV. P. 21a(a)(l)
JEFFREY L. DORRELL
McGib11ey v. Retzlaff
Defendant Neal Rauhauser's Motion to Dismiss Under the Citizen Participation Act
21
- -- - - -- - -- - -- - -
1\CADEMJC POSITIONS
State. College, PA
(CO~L\1
420)
EDUCATION
University of Florida
Gainesville, FL
Dodor of Philosophy
Alumni Fellow
Dissertation: Media, excuses and culture: A cross-culrural impression
management experiment
Chair: Lynda Lee Kaid, Ph.D.
1999-2002
Gaine~-ville,
University of Florida
FL
Georgetown University
Washington, DC
2002 - 2004
University of Florida
lotto to Public Relations (PUR 3000)
Intra to Public Relations Teaching Assist..'\nt (PUR 3000)
Advertising Campaigns (ADV 4800)
Advertising Sales (ADV 3502)
lmcrnational Advertising (ADV 4400)
RELEVANT PROFESSIONAL EXPERIENCE
1994-2004
Gainesville, FL
Presidmt
Owned and operated a marketing communications firm serving clients
from the banking, publishing and education business areas.
1992- 1994
USA Tot0
Pro1notion M tmnger
1990 - 1992
Marine Log Magazine
Managing Editor
- --------------
-----------------------------
699.
Connolly-Ahern, C., Grantham, S., & Cabrera-Baukus, !VL (2010). The
effects of attribution of VNRs and risk on news viewers' assessments of
credibility. Jonmal oJPnblic Re/4Jions &search, 22(1), 49-64.
Connolly-Ahern, C., Ahem, L., & Boruee, D.S. (2009). The effectiveness
of stratified constructed week sampling for content analysis of electronic
archives: AP Newswire, Business Wire and PR Newswirc. ]o11malirm &
Mau Comtmmir(l/ioiT Q11arter!;~ 86(4), 862-883.
Connolly-Ahern, C. & Broadway, S.C. (2008). "To booze or not to booze?"
Newspaper coverage of Fetal Alcohol Spectrum Disorders. Srie11ce
Conmnir.acitfn, 2, 151-172.
Dimitrova, D ., Connolly-Ahern, C., Williams, A.P., Kaid, LL, & Reid, A.
(2003). Hyperlinking as gatekccpmg: Online newspaper coverage of the
execution of an American terrorist. Joumalism Studiu, 4(3), 401-414.
--------------- ------
l~VITED
BOOK CHAPTERS
----------
Dimitrova. D., Connolly-Ahern, C., \\'illiams, A.P., Kaid, LL, & Reid, A.
2007
2005
2004
2004
2003
Top Paper
PRSA Educators Academy, PRSA
2003
2003
2002
2001
_ ___
Completed
"A Strategy, Acquisition, and Rc\rcnue Model of Evangelical Radio
Networks" (2008-2009)
Co-Principal Investigator
Social Science Research Council
S7,500
Feral Alcoho l Spectrum Disorder Awareness Campaign
Co-Principal Investigator
Pennsylvania Dc:parrmc:nt of Health
IL.
Yu, N., Ahem, L.A., Connolly-Ahern, C., & Shen, F. (August, 2008).
Communicating the risks of Fetal Alcohol Spectrum Disorder: Effects of
message framing and exemplification. Presented ro the Science
Communication Interest Group, AEJ.MC, Chicago, IL
Connolly-Ahern, C. (August, 200i). Agenda-tapping: Conceptualizing the
rcl:~.tionship between news coverage, fund raising and the First
Amendment. Presented to the Public Relations Dh-ision, AEJMC,
Washington, DC.
Connoll)'-Ahem, C., & Broadway, S.C. (August, 2007). "To booze or not
to booze?" Newspaper coverage of Fetal Alcohol Spectrum Disorders.
Presented to the Science Communication Interest Group, AEJMC,
Wa.~hington, DC.
Grantham, S., Connolly-Ahern, C. & Cabrcra-Baukus, M. (December,
2006). The effects of attributions ofVNRs on new viewers' assessments of
credibility and risk. Society for Risk An!ilysis Annual Meeting. Baltimore,
MD.
Connolly-Ahern, C. (Augusr, 2006). Excuse us, please: Examining the effect
of e..xcuses on corporate cn:dibility after an advcrse incidenL Presented tO
the Public Relations Division, AEJMC, Sao Francisco, CA.
Broadway, S.C., & Connolly-Ahern, C. (Augusr, 2005). A prescription for
self-presentation: An analysis of impression management strategies on
health Web sites. Presenred to the Science Communication !merest Group,
AEJMC, Sao Antonio, TX
Dimitrova, D., & Connolly-Ahero, C. (August, 2005). A ta.le of two wars:
Framing analysis of onJine news sites in coalition countries and the Arab
wocld during the Iraq war. Presented ro rhe Torernational Communication
Division, AEJMC, San Antonio, TX.
Connolly-Ahern, C. (Ma}', 2005). Assessing the relative credibiliry of
excuses offered in editorial content and advertising in two cultures. Paper
presented to the Public Relations Division, ICA, New York City, NY.
Connolly-Ahern, C., & Broadway, S.C. Quly, 2004). The importance of
appearing competent: An analysis of corporate impression management
strategies on the Wocld Wide Web. Presented to the Public Relations
Division, AEJMC, Torooro, ON, Canada.
Connolly-Ahern, C. (November:, 2003). Accounting through advertising: A
proposal for applying the Triangle Model of Rc:sponsibility to coq>orate
advocacy advertising. Presented to the Student Division, NCA, l'vfiami, FL
MoUeda,J.C., Connolly-Ahern, C., & Quinn, C. (October, 2003). Crossnational conflict shifting: Expanding a theory of global public relations
management through quantitative: content analysis. Presented to the PRSA
Educators Academy, Nc:w Orleans, LA.
Herrero,J.C., & Conoolly-Ahem, C. (September, 2003). Lear.oing from
mistakes? A comparison of the techniques and messages in tbe 1996 and
2000 Spanish national elections. Presented to the Sixth Annual Political
Marketing Confercoce, London, England.
_______
__________ ___________________...........
INVITED P1\NEL_,PRESENTATJONS
............................................
______,
,.........
MA.
CoonoUy-Ahem, C. & Martioez-Carillo, N.l. (August, 2009). Changing
gears: Framing Cristina Fern:lndez de Kirchner's presidential bid. Presented
to the Commission oo the Status of Women and the International
Communication Division, AEJMC, Boston, :M.A.
Connolly-Ahern, C. (September, 2006). News coverage in the 2003 Gulf
War: A view from Latin America. Presented to Global Fusion, Chicago, n_
Connolly-Ahern, C., & Kaid, LL (November, 2003). Branding a crisis:
Corpomte advertising as political advertising afrcr 9-1 1. Presented to the
Political Communication Division, NCA, Miami, FL.
Conooll}'-Ahero, C., Williams, A.P., Flowers, K , Flo}'d. S., Khaog, H., &
Mills, L Guly, 2002). Look who's talking: The role of media narcissism in
the news coverage of the September 11, 2001 terrorist attacks. Presented to
the Political Communication Divisio n, I CA., Seoul, South Korea.
2010-2012
2007-2009
2005-2007
2004- 2007
2005-2006
2005-2006
2004-2005
2003-2004
2001 - 2002
10
4.
With the apt tagline "Pure Evil," IAU quickly became a controversial repository
for salacious images. Spurned ex-lovers who had compromising photos of their former partners,
and hackers who unlawfully accessed strangers' e-mail and cellular phone accounts to obtain
5.
These individuals forwarded their victim's nude images to Moore via e-mail.
Moore would then organize the images, accompanied with a screen capture of the individual's
Facebook or Twitter account to corroborate his or her identity, and publish the images on IAU.
6.
10
conduct. He considered a number of ways to do so, but determined that simply purchasing the
11
<isanyoneup.com> domain name from Moore, so that he could immediately shutter the site,
12
would be the most expeditious way to put an end to Moore's continued attacks on unwitting
13
men, women, boys, and girls. McGibney's purchase was solely for the <isanyoneup.com>
14
domain name and did not include any of the underlying content found on IAU.
15
7.
16
17
properties, where Moore wrote a letter explaining the sale of the <isanyoneup.com> domain
18
19
20
21
8.
Moore himself issued public statements that he was "turning over a new leaf' and
Despite these events, Moore has used the interactive microblogging platform,
22
Twitter, to engage in new, focused attacks on McGibney and his family. Specifically, without
23
24
report such content to the National Center for Missing and Exploited Children and FBI, c)
25
26
27
28
-2 -
10.
McGibney, confronted with this series of events and an adversary who will say
literally anything to smear his reputation and business, is left with no viable recourse to clear his
name other than a judicial decree that Moore's statements are defamatory.
County, Nevada.
12.
Moore is a resident of California, but has been in regular contact with McGibney
and has published defamatory statements about McGibney while knowing McGibney resided in
Clark County.
13.
10
11
As seen in Exhibits A and B, Moore knew his statements at issue in this suit were
12
Moore has significant and extensive business contacts within Clark County,
13
including the use of a Las Vegas-based attorney for legal representation in connection with
14
IAU, 1 and his numerous compensated appearances in promotion ofiAU between January and
15
July 2012 at Las Vegas venues including Mandalay Bay and the Harmon Theater?
16
17
1
19
Kashmir Hill, Revenge Porn With a Facebook Twist, Forbes (July 6, 2011),
http://www. forbes.com/sites/kashmirhill/20 11/07/06/revenge-porn-with-a-facebook-twist/ (last
accessed Aug. 17, 2012).
20
18
21
22
23
24
25
26
27
28
- 3-
15.
Based on Moore's activities and underlying contacts with Clark County, this
III. Parties
3
A. The Plaintiff
16.
Incorporated. ViaView owns and operates a number of popular and highly trafficked Internet
17.
10
the domain name <isanyoneup.com> from Hunter Moore. McGibney and ViaView, Inc. did not
11
purchase, license, access, or in any way obtain any content, images, user submissions or other
12
13
18.
Similarly, neither McGibney nor ViaView, Inc. ever had access to, control over,
14
possession of, or any level of direct interaction with the materials on IAU. All that McGibney
15
and ViaView obtained from Moore was the domain name <isanyoneup.com>, which was
16
17
B. The Defendant
18
19
20
19.
21
Tumblr and Twitter. On Twitter, Moore manages the accounts "@huntermoore," found at
22
23
21.
In an April2012, the New York City-based Village Voice profiled Moore, where
24
he described IAU and his personal significance on the Internet: "I'm actually fucking people
25
over. It's real people who you can actually basically reach, and be in contact with."
26
27
22.
Moore actively promoted IAU and continues to promote its return, but denies all
responsibility for the site's consequences - stating that "I don't_ see how I'm supposed to be
28
-4-
sorry." Moore also brags of his cavalier response to demand letters sent by IAU victims'
attorneys, claiming "all I reply back with is 'LOL,' and then I never hear back from them again."
23.
Moore told the Village Voice: "To be perfectly honest, I think it's fucking awesome that people
In 2011, Moore created IAU as a repository for nude images that individuals sent
10
People would e-mail Moore photos of nude and semi-nude men and women that
11
they either took themselves or, more commonly, had privately obtained from the photographed
12
subject during the course of a relationship or extracted from a victim's hacked e-mail or cell
13
phone account.
26.
14
15
or stolen through hacking - were sent to Moore without the permission of the depicted
16
individuals. In tum, Moore published and distributed these images on IAU without permission
17
of the individuals depicted in those photographs and without obtaining any records as required
18
by 18 U.S.C. 2257.
27.
19
While operating IAU, Moore mocked and ignored legal demands made by the
20
site's victims. As the site grew, so too did the legal threats it faced; in late 2011, Facebook, Inc.
21
threatened to sue Moore and IAU for using screenshots ofFacebook profiles to provide
22
personally identifying information for the men and women whose nude photos appeared on
23
IAU. 3
28.
24
Moore received many user submissions for the website that contained or depicted
25
26
27
Kashmir Hill, Face book Goes After IsAnyoneUp, A Porn Site That Features Its Users ' Profiles,
Forbes (Dec. 9, 2011), http://www.forbes.com/sites/kashmirhi1V2011/12/09/facebook-goes-afterpom-site-that-features-its-users-profiles/ (last accessed Aug. 18, 2012).
28
- 5-
In May 2012, Moore confirmed to the Village Voice that the FBI was
29.
30.
3
4
Village Voice reporter Camille Dodero identify how she learned of the probe. Specifically,
Moore stated:
I will literally fucking buy a first-class fucking plane ticket right now, eat an
4
amazing meal, buy a gun in New York, and fucking kill whoever said that.
9
10
31.
properties, McGibney closely monitored Moore's behavior throughout 2011 and 2012.
11
12
13
14
15
32.
18
19
for the victims of his involuntary pornography campaign. McGibney believed that he could
convince Moore to cease, where others had failed, by educating him and appealing to his better
nature.
33.
harmful legal precedent that would weaken, if not destroy entirely, the precious legal immunities
that websites driven by user-generated content such as Twitter, CheaterVille, and Facebook
depend upon for their continued existence. 5
20
21
During this time, McGibney communicated with Moore, and tried to lead him to
see the error of his ways. McGibney fundamentally disagreed with Moore and !AU's disregard
16
17
As the head officer ofViaView, Inc., which depends on its many Internet
34.
22
23
24
25
26
27
28
Camille Dodero, "Gary Jones" Wants Your Nudes: Is One Hacker Behind Man ofthe
"Revenge_Porn" Photos That Were Posted on Hunter Moore's Is Anyone Up?, Village Voice
(May 16, 2012), http://www.villagevoice.com/2012-05-16/news/hacker-is-anyone-up-huntermoore-fbi/4/ (last accessed Aug. 18, 2012) (emphasis added).
5
See, e.g., 17 U.S.C. 512 (the Digital Millennium Copyright Act); 42 U.S.C. 230 (Section
230 of the Communications Decency Act).
-6-
35.
Moore agreed to the deal. On April19, 2012, all traffic to the domain name
helping the victims of bullying; the content that made up the IAU website was no longer
available online.
36.
Once IAU was no longer active, Moore's "15 minutes of fame" seemed to be at
an end. Moore did not react well to his newfound irrelevancy, and found it impossible to
9
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37.
Only four months after McGibney allowed Moore to retire his Internet notoriety
On August 18, 2012, Moore used his personal Twitter account, @huntermoore, to
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39.
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his allegations by adding its Twitter account, @gawker, to his first tweet attacking McGibney:
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"hey @gawker you write about me every chance you get let me tell you what james [McGibney]
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40.
Moore then continued with two successive Twitter posts, or "tweets," about
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McGibney, stating: "hey @bullyville remember when you cried on the phone and were worried
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about getting kicked off your board because you kept all the underage" and continuing with
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"nudes form [sic] iau on your hard drive and when the fbi investigated me you thought they'd
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41.
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get some little kids dick out of your mouth and let me fuck your wife," and then inquired "how
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are you going to help stop bullying when you're a pedophile and go to china to rent children
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- 7-
42.
Unsatisfied, Moore went on to call McGibney a "scam artist," and falsely claimed
Moore further threatened to rape McGibney's wife when he was next in Las
Vegas, writing "when I'm in vegas to fuck @carolinelizbeth I'm going to fuckjames form [sic]
@bullyville's wife for the money he owes me," and, almost immediately thereafter, "hey you
have my word as a marine I'm going to fuck your wife @bullyville." (Exhibit A at 3)
44.
Moore had not had enough of defaming McGibney from his personal Twitter
account, @huntermoore, and promptly continued his campaign using the Is Anyone Up Twitter
account, @is_anyone_up. From that account, Moore made additional defamatory remarks about
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Using the @is_anyone_up Twitter account, Moore wrote: "the guy who bought
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the isanyoneup.com domain @bullyville saved all the underage pictures on his hard drive. and
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pedo. he bullied little kids [sic] dicks into his mouth." (Exhibit Bat 2)
47.
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Finally, Moore offered an incentive for others to spread his false and harmful
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remarks about McGibney throughout Twitter: "If you tweet #bullyvilleisranbyapedophile I'll
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Plaintiff realleges each and every preceding paragraph and incorporates them by
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Twitter accounts, about McGibney being a pedophile, engaging in acts of child abuse, and
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possessing illegal content obtained from IAU, are false, harmful, and clearly identify McGibney
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- 8-
50.
Neither McGibney nor ViaView, Inc. ever had possession, control, title, or even
access to any of the materials that had been submitted to or published on IAU, and thus could not
51.
Moore made these statements intentionally, and with the specific malicious intent
to harm McGibney's reputation with accusations of child abuse, pedophilia, and possession of
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52.
Moore made these statements with actual malice: He knew these statements were
false at the time he made them, or made them with reckless disregard for the truth.
53.
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within his business and the broader community because of Moore's false, harmful and gratuitous
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55.
Plaintiff realleges each and every preceding paragraph and incorporates them by
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remove one of the most problematic sites from the Internet before it could do further harm to its
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victims and the legal rights of the user-generated website community, Moore portrayed him to
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more than 160,000 people- falsely - as a child abuser and pedophile who had broken numerous
21
federal laws.
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57.
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the proper authorities, c) abusing children, and d) being a pedophile, are categorically false.
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58.
Moore made these false statements with actual malice: He knew these statements
were false at the time he made them, or made them with reckless disregard for the truth.
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- 9-
59.
@is_anyone_up Twitter accounts broadcast these false statements regarding McGibney to more
60.
Moore gave publicity to those false statements - and distributed them to more than 160,000
people.
61.
molester, and owner of unlawful child pornography - is highly offensive to any reasonable
person.
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62.
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more than 160,000 people, McGibney has suffered significant mental anguish. Moore's actions,
12
and the mental harm they have caused McGibney, adversely affect the quantity and quality of his
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VII.
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1.
2.
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3.
Punitive damages of more than $10,000 for Moore's willful, deliberate, and
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4.
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5.
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II
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II
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II
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II
An award against Moore for McGibney's attorneys' fees and court costs incurred
- 10-
1
2
3
4
Respectfully Submitted,
RANDAZZALEGALGROUP
~J/2r--
Marc J. Randazza
Ronald D. Green
J. Malcolm DeVoy
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- 11 -
NO. 67-270669-14
JAMES MCGffiNEY and
VIAVIEW, INC.,
Plaintiffs,
v.
THOMAS RETZLAFF, LORA
LUSHER, JENNIFER
D' ALLESANDRO, NEAL
RAUHAUSER,
MISSANNONEWS, JANE DOE 1,
JANE DOE 2, JANE DOE 3,
JANE DOE 4, AND JANE DOE 5,
Defendants
ORDER
PRESIDING JUDGE
22
CERTIFICATE OF SERVICE
I hereby certify that on ---=-3--=2=0__, 2014, a true and correct copy of the
foregoing was sent by:
_ _ Hand delivery
Certified mail
_ _ Telephonic document transfer
_x_ E-service in accordance with TEX. R. Crv. P. 21a(a)(l)
24
FILED
067-270669-14
No.
JAMES MCGIBNEY AND
VIAVIEW, INC.
TARRANT COUNTY
3/19/2014 3:22:12 PM
THOMAS A. WILDER
067-270669-14
vs.
RAUHAUSER, MISSANONNEWS,
DISTRICT CLERK
1.
have arisen between client James McGibney and his attorney. Current
counsel does not wish to set forth these irreconcilable differences within
this pleading, because the Undersigned is concerned disclosure of this
information could be potentially harmful to the Plaintiffs as they pursue
this cause of action. In addition to irreconcilable differences, Plaintiffs
and the Undersigned are not in agreement with regard to the payment of
067-270669-14
FILED
TARRANT COUNTY
3/19/2014 3:22:12 PM
i'
th e prosecu twn ofth"Is ca~T~
THOMASdJ/VILDER
a tt orneys 1ees an d expenses necessary 10r
CLERK
'i'
067-270669-14
4.
FILED
TARRANT COUNTY
3/19/2014 3:22:12 PM
067-2 70669-14
FILED
TARRANT COUNTY
3/19/2014 3:22:12 PM
THOMAS A. WILDER
DISTRICT CLERK
CERTIFICATE OF SERVICE
067-270669-14
FILED
TARRANT COUNTY
3/19/2014 3:22:12 PM
THOMAS A. WILDER
DISTRICT CLERK
This will certify the last known address of Plaintiffs are as follows:
James McGibney
Via View, Inc.
Cheaterville
10620 Southern Highlands Pkwy., #110-234
Las Vegas, NV 89141
(702) 445-3192
j ames@bullyville .com
----~_P_.0_0_2_______
MAR/20/2014/THU 03:58PM
No. 067-270S6914
vs.
RAUHAUSER, MISSANONNEWS,
Defendants,
Thomas
Retzlaff,
Lora
Lusher,
Jennifer
P. 003
MAR/20/2014/THU 03:58PM
P. 004
MAR/20/20!4/THU 03:58PM
CERTIFICATE OF SERVICE