Rakofsky Motion #7 – Doudna Moves to Dismiss and for Sanctions

The seventh motion in the Joseph Rakofsky defamation case against 81 defendants is now being served. (Background on the case here).

This motion is by defendant Michael Doudna, a California criminal defense lawyer. He is represented by Thomas Catalano of Lester Schwab Katz & Dwyer here in New York.

The motion seeks two types of relief:

  1. Dismissal based on a lack of long-arm jurisdiction;
  2. Sanctions. The sanctions motion is based on Rakofsky sending an email shortly after suit was started, where he tries to quickly settle the case for $5,000, an amount that would no doubt be below defense costs.

And so we now have multiple defendants weighing in on the case, and in doing show the diverse ways that attorneys elect to defend:

Our group of 35 defendants (repesenting 16 authors) started out of the gate with procedural issues dealing with a pro hac vice admission for Marc Randazza and trying to get a unified date for all defendants to answer or move.

Defendants Seddiq, Koehler and Kennerly elected to make a straight up motion to dismiss on the merits, despite the fact that all are outside New York and therefore not subject to our courts’ jurisdiction. They left the jurisdictional issue aside.

By contrast, Defendant Doudna today does the opposite, focuising only on the jurisdictional question, and not the merits (or lack thereof).

Defendant Yampolsky elected to put in an answer, perhaps allowing other defendants to do the heavy lifting and then come in at the end with a simple (and cost-effective) “me too” motion.

Defendant Reuters moved on the merits.

Different lawyers, different strategies. The practice of law is often an art, not simply a matter of dredging up case law.

Moving to the substance of the Doudna papers, I saw an interesting sidenote: The Doudna blog was created and maintained by a marketing company, not the lawyer. The details are described in the Doudna and Kenney Affidavits, Kenney being the marketer. While it won’t be relevant to this particular case, the concept of outsourcing your marketing has a huge risk to it as attorney ethics are part of marketing. When you outsource your marketing, you outsource your ethics. It may not amount to a hill of beans in this particular case, but trouble clearly lurks when a lawyer asks a non-lawyer to be his agent and publish under his name

The marketing company relationship is summarized this way in the Memo of Law:

The marketing service that maintained the Doundna blog located the ABA Journal article concerning Rakofsky, drafted a synopsis, and placed it on the Doudna blog, along with a hyperlink to the ABA website where the original source article could be viewed.

The following are the documents being filed:

DoudnaMemoOfLaw

CatalanoSupportingAffirmation

DoudnaSupportingAffidavit

KenneySupportingAffidavit

NoticeOfMotion

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7 Responses Leave a comment

  • Anon 2011.6.25 at 21:06 | Quote

    I think you owe it to your readers to keep us entertained by ensuring that this case goes all the way to trial. For great justice!

  • VMS 2011.6.26 at 08:39 | Quote

    It does not matter what the litigation strategy is in this action because it is impossible for the defendants to lose (except in defense costs) and impossible for the plaintiffs to win.

    “Defendants Seddiq, Koehler and Kennerly elected to make a straight up motion to dismiss on the merits, despite the fact that all are outside New York and therefore not subject to our courts’ jurisdiction. They left the jurisdictional issue aside.”

    A good reason for doing this is that they will get a decision on the merits, which will preclude an over eager Rakowsky from litigating the case again in their jurisdiction. Rakowsky, as the experienced litigator he is, chose NYS, the state which IMHO is the least plaintiff-friendly for defamation cases.

    Sanctions are in order in this action. Rakowsky should not be using the courts for a notoriety stunt (inverse publicity stunt), even if it has the side effect as entertainment value to the Internet community and a case study in legal ethics and judgment.

    Hey Eric, maybe you can get your blog registered as a CLE provider so we can all earn ethics credit in the Rakowsky case study.

  • Mel 2011.6.27 at 08:54 | Quote

    I just have one question: I thought settlement discussions (which presumably would include Rakofsky’s email) were inadmissible? How, then, can the email be filed with the court?

    Not that it will make much difference to the bottom line, and why Rakofsky would seek out the type of publicity this lawsuit is producing is beyond me. Sometimes even if somebody really has been defamed the best strategy is to let the story die rather than keep it going.

  • TouroGrad 2011.6.27 at 11:42 | Quote

    @Mel
    It is the defense’s position that the settlement negotiation was not made in good faith.

    CPLR § 4547. Compromise and offers to compromise

    Evidence of (a) furnishing, or offering or promising to furnish, or (b) accepting, or offering or promising to accept, any valuable consideration in compromising or attempting to compromise a claim which is disputed as to either validity or amount of damages, shall be inadmissible as proof of liability for or invalidity of the claim or the amount of damages. Evidence of any conduct or statement made during compromise negotiations shall also be inadmissible. The provisions of this section shall not require the exclusion of any evidence, which is otherwise discoverable, solely because such evidence was presented during the course of compromise negotiations. Furthermore, the exclusion established by this section shall not limit the admissibility of such evidence when it is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay or proof of an effort to obstruct a criminal investigation or prosecution.

    It is inadmissible as to the defendant’s liability, and I think it would be a fair assumption that any settlement offers made by the Plaintiff that the defense believes to be part of some kind of shake down or other type of dishonest conduct (perhaps pursuant to an astonishingly frivolous lawsuit) would fall under the “other purposes” section of this law.

    The defendants are arguing that the plaintiff’s settlement offer was not made in good faith, and as a result I doubt that the court would consider the communication to be inadmissible for the purposes of asking for sanctions for filing a frivolous lawsuit regardless of whether or not it falls under the “other purposes” section.

  • Clark 2011.7.15 at 07:57 | Quote

    Rakofsky’s filing in opposition to Randazza’s pro hac vice request is interesting reading as he states that he or his future counsel could NEVER negotiate any settlement with Randazza, thus wasting judicial resources since it would go to trial.
    The reasoning is solely based on Randazza telling Rakofsky to “shut the fuck up” on the phone.
    It is also interesting that Rakofsky extensively quotes new posts from this website as support to why his feelings are hurt.
    Freedom of speech is a constitutional protection, a hurt reputation based upon other persons’ “true” opinions is not.

Comments are closed.


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