Preston Poulter et al v. Ali "Dean" Assaf et al (2021) -

pearlslam

kiwifarms.net
Is this unusual (see image)? Normal opposition papers to a motion would plainly label the document as filed in opposition to the motion in question.

Maybe I am picking apart the phrasing on the cover sheet for no reason.

Edit to prevent double posting:

They'd have to file a motion, and it's now weeks past that point, almost a full month. It's not going to look good.

The court could extend the clock on their own motion.

EDIT to prevent triple posting:

FRCP 4(e)1:

following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(emphasis added)

I don't know how much of a bearing that Texas Rules of Civil Procedure has on this case, but here is rule 106 (b)2:

in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.

Preston could post on Twitter tomorrow saying that Vikki is being sued, and could possibly count as service (Not a lawyer, so the fuckwit's actual mileage may vary). The fact that Preston stated that Vikki evaded service not once but twice (on the first page on his motion against EVS) DOES seem to suggest some nans going on.
 

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5t3n0g0ph3r

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I'm not a Robot

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"I WILL FIND HER!!!!"
Sounds like the premise to a shitty CBS sitcom. Every episode is a new address and adventure! He may be 20 years too late on this one. One of those people scraping sites reports that she (or someone with the same name) was associated with that address back in the '90s.

1631586307500.png


oh, hey
Oh, child, I've just been living my life, while they tried to serve me at an address I haven't lived at in over 20 years. I don't know what kind of shenanigans I could have been up to.
 
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East_Clintwood

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Preston could post on Twitter tomorrow saying that Vikki is being sued, and could possibly count as service (Not a lawyer, so the fuckwit's actual mileage may vary).
That's not how service via social media works. The most commonly cited precendtial case I could find as an example is Biadoo vs Blood-Dzraku. That was a divorce case where the wife had no current physical address for the ex husband (and despite best efforts including a PI couldn't find one). Judge allowed service through facebook PM (since that's how they were occasionally keeping in touch anyway), but even then there were some stringent requirements:
The judge in the case concluded that, “Inasmuch as plaintiff is unable to find defendant, personal delivery of the summons to him is an impossibility” and as such, “… is granted permission to serve defendant with the divorce summons using a private message via Facebook”. The exact terms required Mrs Baidoo’s lawyer to log into her Facebook account, identify themselves to the husband and then send either a web address or an image of the summons to him. Mrs Baidoo was restricted from sending the message herself in much the same manner as you cannot serve papers in person yourself.
 

pearlslam

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That's not how service via social media works. The most commonly cited precendtial case I could find as an example is Biadoo vs Blood-Dzraku. That was a divorce case where the wife had no current physical address for the ex husband (and despite best efforts including a PI couldn't find one). Judge allowed service through facebook PM (since that's how they were occasionally keeping in touch anyway), but even then there were some stringent requirements:
Fair enough. Like I said, I'm not the fuckwit's lawyer, so his actual mileage would vary. That was my screw-up for not checking the actual caselaw on the subject.
 

East_Clintwood

kiwifarms.net
Fair enough. Like I said, I'm not the fuckwit's lawyer, so his actual mileage would vary. That was my screw-up for not checking the actual caselaw on the subject.
No worries, it was a bit of interesting research since it's one area of the law I've never personally had to deal with, so I figured I'd share for the curious here since I'm guessing nonone outside maybe AnOminous would know about it already. Instinctively it seems like simply posting it on social media isn't any less effective than, the usual method of service by publication (essentially posting it repeatedly in the New York Law Journal or another designated newspaper). Honestly I think this is something that's going to come up repeatedly over the next few years as social media continues to grow, and traditional newsprint continues to die on it's arse.
 

pearlslam

kiwifarms.net
View attachment 2535566
He did? Missed that one completely.
Assaf filed his answer before filing the MTD. Hence I expect that argument to stick with him, despite filing pro se, and the courts have latitude on pro se parties.

EDIT to prevent double posting:

I actually don't know whether or even if they're required to do that or what is doing it in a timely fashion. It may be a local rule.

I'm looking at the local rules for the court, and it is entirely possible that local rule 4 would apply, which would require that they would file with the clerk before attempting service.

 
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Elwood P. Dowd

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Assaf filed his answer before filing the MTD. Hence I expect that argument to stick with
him, despite filing pro se, and the courts have latitude on pro se parties.
So, something rendered Assaf's language ineffective here? Not saying it is right or that it would stand up, but he definitely claimed, even in his pro se filing, the court had no jurisdiction over him.

Poulter's amended complaint:
1631639220065.png

Assaf's reply:
1631639366171.png


And obviously the motion to dismiss went all in on the jurisdiction issue. Well, sucks to be him, I guess, since it appears the court didn't have to do anything but ignore that language.
 

AnOminous

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No worries, it was a bit of interesting research since it's one area of the law I've never personally had to deal with, so I figured I'd share for the curious here since I'm guessing nonone outside maybe AnOminous would know about it already. Instinctively it seems like simply posting it on social media isn't any less effective than, the usual method of service by publication (essentially posting it repeatedly in the New York Law Journal or another designated newspaper). Honestly I think this is something that's going to come up repeatedly over the next few years as social media continues to grow, and traditional newsprint continues to die on it's arse.
Service is one of those ridiculously technical issues when it interfaces with state law. FRCP 4 itself is fairly straightforward, and you're generally okay if you just stick to that, but when you have to resort to state law, it gets pretty dodgy pretty quickly, especially when you're talking about using alternative means of service for when the normal means aren't available, that is to say, shit like serving people via email or social media.

Then you get into the issue where, whether or not honestly, people simply claim not to have received notice. Interestingly, you don't always need actually to have been served. But the efforts to serve you have to have been likely actually to do so. Since one of those civ pro cases states the general principle succinctly:

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

So while under some circumstances yes, you can serve someone over social media, the actual circumstances of how you did it and whether the person was likely to see it is really what determines whether it was constitutionally sufficient.

So for instance if you serve some blue checkmark who tweets 100 times a day on their verified account, this is more likely to be sufficient than if you send an email to some email account that hasn't been used in years. And again, service by this kind of alternative method is usually only available if you've exhausted all other reasonable methods of service. It isn't available just because you're lazy and didn't do your job.
 

Strix454

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Preston has filed his response to @FROG 's Motion to Dismiss. @AnOminous , go crazy with telling us how bad it looks.

The response is very badly written in my non-expert opinion and put together in the sort of idiotic way which would suggest heavy involvement by the client. They kick off by talking about
the trademark issues and almost re-shaping the original complaint. It complicates what would otherwise be a very simple argument about defamation.

The jurisdictional arguments were rather unconvincing to me. Its far from clear that "the brunt of the harm" to Preston would be felt in Texas. They also seem to
avoid entirely the issue of Lamont (in Florida) being somehow harmed in Texas. The claim that EVS specifically aimed his defamation at Texas is nonsense. They
made a half-ass argument that Texas is the proper place for the case because of geography. That somehow since its between all the parties in the case, that its
the appropriate place for the case.

In fact, Lamont is treated almost as a non-entity in the response. Everything is all about Preston.

There is also a really sleazy mention of the old Dave Sim thing and an attempt to tie that to EVS. though a wikipedia article. Its done in a footnote which makes
it even worse. Its also on the edge of a slander against Sim. Worse yet, the attorney doesn't even spell Dave Sim's name correctly.

They also claim (for no particular reason related to EVS) that Dean has implicitly accepted the personal jurisdiction of the Texas Court.

They claim that EVS has made a false statement of fact, but admit in the same breath that he provided images from their work to support his opinion.

I think the brief also mis-states and mis-interpretes revell v. lidov. The whole thing about how EVS "picked a fight in Texas" running through the response
is a fundemental misunderstanding of revell v. lidov. To quote from the opinion of the appeals court in that case:

Our ultimate inquiry is rooted in the limits imposed on states by the Due Process Clause of the Fourteenth Amendment.   It is fairness judged by the reasonableness of Texas exercising its power over residents of Massachusetts and New York.   This inquiry into fairness captures the reasonableness of hauling a defendant from his home state before the court of a sister state;  in the main a pragmatic account of reasonable expectations-if you are going to pick a fight in Texas, it is reasonable to expect that it be settled there.   It is not fairness calibrated by the likelihood of success on the merits or relative fault.   Rather, we look to the geographic focus of the article, not the bite of the defamation, the blackness of the calumny, or who provoked the fight.

Also from Kromtech of USA, LLC v. Cox (2014) which was a fifth circuit case, you have this (based on Revell)

The only connection that this controversy has to Louisiana is that Plaintiff resides and allegedly suffered harm here. The Fifth Circuit explicitly stated in Revell that such contacts are not sufficient to support the exercise of jurisdiction

In my opinion, the response doesn't make a good argument on Texas jurisdiction. Its too close to arguments that were explicitly rejected in Revell. Just one person living and having supposedly suffered harm in Texas is not enough.
 
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Strix454

kiwifarms.net
:story:
"Picked a fight in Texas?"
Where, @PocketJacks?
Where in Texas did @FROG "pick a fight"?

Is "picked a fight" a normal legal phrase?

The attorney is playing "cute" with that particular language and referencing old case law in Texas (the Revell case). That language appears in the case.
The problem with doing that is that the plantiff in the Revell case eventually lost their jurisdictional argument in the court
of appeals.

The problem is that he (the attorney) is making an argument that was explicitly rejected in the Revell case. That residence in Texas and suffering harm in Texas alone
grants jurisdiction to Texas courts.
 

pearlslam

kiwifarms.net
So, something rendered Assaf's language ineffective here? Not saying it is right or that it would stand up, but he definitely claimed, even in his pro se filing, the court had no jurisdiction over him.

Poulter's amended complaint:
View attachment 2535879
Assaf's reply:
View attachment 2535887

And obviously the motion to dismiss went all in on the jurisdiction issue. Well, sucks to be him, I guess, since it appears the court didn't have to do anything but ignore that language.
Like I said in the prior post, courts generally grant latitude to pro se defendants, and it appears that while the court notes that he did file the answer first, they are allowing the motion to go through. He preserved enough of a Rule 12 dismissal in his answer to allow it to go through.
 

Strix454

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View attachment 2535566
He did? Missed that one completely.
Just for completeness, footnote 5 gives their reasoning on this point. Its what others have already suggested

5 Assaf later filed a motion to dismiss for lack of personal jurisdiction. Doc. 25. However, because he filed his answer first without objecting under Fed. R. Civ. P. 12(b)(2), he consented to this Court’s exercise of personal jurisdiction. See Fed. R.

Generally the statements about Dean and Vikki are both misleading and pointless to make in the response in my non-expert opinion. IMO, this is just Preston putting his value add in the case and trying to be as much of a dick as he can at every opportunity.
 

AnOminous

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Like I said in the prior post, courts generally grant latitude to pro se defendants, and it appears that while the court notes that he did file the answer first, they are allowing the motion to go through. He preserved enough of a Rule 12 dismissal in his answer to allow it to go through.
They allow latitude in drafting mistakes and other formalities, but jurisdiction is not a formality. If a court lacks jurisdiction, any rulings it makes are null and void, and the court has the obligation to dismiss even if nobody moves to do so, whether the party is a drooling pro se lunatic or represented by a white shoe law firm.
 

ConSluttant

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@PocketJacks looking for @VIkkiVerse's address:
View attachment 2534566
"I WILL FIND HER!!!!"
I love how @PocketJacks is claiming that she is evading service. Dude if you can't send it to her at her correct address wtf are you expecting from her? She is NOT required to send up smoke signals or send you a goddamn telegram so you know where she's at. That's on you dumbfuck. Your idiocy doesn't make her evasive. Lawsuits 101.
 

Spectre_06

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Preston has filed his response to Dean's motion to dismiss. It's pretty much a copy-paste of his response to Ethan's motion to dismiss, under the claim they're substantially the same even though they really aren't. He did bring up that Dean waived personal jurisdiction in his reply, but the court has the ability to determine on its own that it lacks jurisdiction. In fact, one of the cases they cite (Revell v. Lidov) was affirmed on appeal that the lower court lacked personal jurisdiction.
 

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5t3n0g0ph3r

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Preston has filed his response to Dean's motion to dismiss. It's pretty much a copy-paste of his response to Ethan's motion to dismiss, under the claim they're substantially the same even though they really aren't. He did bring up that Dean waived personal jurisdiction in his reply, but the court has the ability to determine on its own that it lacks jurisdiction. In fact, one of the cases they cite (Revell v. Lidov) was affirmed on appeal that the lower court lacked personal jurisdiction.
Well, let's see how The Court addresses this then.
 
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