Document 39 Filed 08-03-10 Page 1 of 6 Parisi-Sinclair

8/9/2019 Document 39 Filed 08-03-10 Page 1 of 6 Parisi-Sinclair

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)DANIEL PARISI, et al., )

)Plaintiffs, ))

v. ) No. 1:10-cv-00897-RJL)

LAWRENCE W. SINCLAIR a/k/a Larry Sinclair, )et al., )

)Defendants. )

)

REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFSMOTION FOR A DEFAULT JUDGMENT AGAINST SPI

Plaintiffs, Daniel Parisi (Parisi), Whitehouse.com Inc., Whitehouse Network LLC

(WN), and White House Communications Inc. (WHCI) (collectively referred to as

plaintiffs), hereby submit this reply to the response of defendants Lawrence W. Sinclair

(Sinclair) and Sinclair Publishing, Inc. (SPI) to plaintiffs motion for a default judgment

against SPI.1

ARGUMENT

SPI was served on June 7, 2010 (Dkt. No. 4). SPI did not timely file an answer within

the required 21 days, June 28.2 Despite having had 57 days to retain counsel, SPI has failed to

1 Plaintiffs filed their motion for a default judgment on July 8, 2010. (Dkt. No. 24).

Sinclair served an opposition on July 21, 2010 by email and mail and it was filed with the Courton August 3. (Dkt. No. 37). On July 22, defendant Amazon.com, Inc. filed a response to themotion for default. (Dkt. No. 30). Plaintiffs filed their reply to Amazons response on July 28.(Dkt. No. 31). On August 3, Sinclair filed a purported response to plaintiffs reply to Amazon.(Dkt. No. 38). A surreply is not permitted under Local Rule 7.

2 SPI argues that it filed an answer. (Dkt. No. 28; Dkt. No. 38 at 2). However, SPI is notrepresented by counsel and Sinclair cannot appear on its behalf. See, e.g.,Rowland v. Cal. Men'sColony, 506 U.S. 194, 201-02 (1993);Jones v.Niagara Frontier Transportation Auth., 722 F.2d

Case 1:10-cv-00897-RJL Document 39 Filed 08/03/10 Page 1 of 6
https://www.lexis.com/research/buttonTFLink?_m=71331dc90a0ae752add4643376b566a0&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2009%20U.S.%20Dist.%20LEXIS%20109375%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=14&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b506%20U.S.%20194%2c%20201%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=2&_startdoc=1&wchp=dGLbVlz-zSkAz&_md5=cbf90f9bd78956222b4de0a3888db5dfhttps://www.lexis.com/research/buttonTFLink?_m=71331dc90a0ae752add4643376b566a0&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2009%20U.S.%20Dist.%20LEXIS%20109375%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=14&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b506%20U.S.%20194%2c%20201%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=2&_startdoc=1&wchp=dGLbVlz-zSkAz&_md5=cbf90f9bd78956222b4de0a3888db5dfhttps://www.lexis.com/research/buttonTFLink?_m=71331dc90a0ae752add4643376b566a0&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2009%20U.S.%20Dist.%20LEXIS%20109375%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=14&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b506%20U.S.%20194%2c%20201%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=2&_startdoc=1&wchp=dGLbVlz-zSkAz&_md5=cbf90f9bd78956222b4de0a3888db5dfhttps://www.lexis.com/research/buttonTFLink?_m=71331dc90a0ae752add4643376b566a0&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2009%20U.S.%20Dist.%20LEXIS%20109375%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=14&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b506%20U.S.%20194%2c%20201%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=2&_startdoc=1&wchp=dGLbVlz-zSkAz&_md5=cbf90f9bd78956222b4de0a3888db5dfhttps://www.lexis.com/research/buttonTFLink?_m=71331dc90a0ae752add4643376b566a0&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2009%20U.S.%20Dist.%20LEXIS%20109375%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=14&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b506%20U.S.%20194%2c%20201%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=2&_startdoc=1&wchp=dGLbVlz-zSkAz&_md5=cbf90f9bd78956222b4de0a3888db5df


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do so. Sinclair has also indicated that there is no need for SPI to retain counsel to represent SPI.

On this record, plaintiffs motion for a default judgment should be granted.

Sinclairs purported dissolution of SPI does not have the effect he believes it has and it is

irrelevant here. A dissolved corporation may be sued if so permitted under the law of the state of

incorporation. Fed. R. Civ. P. 17(b); Brown v. Sunrise Senior Living Servs., 2009 U.S. Dist.

LEXIS 71943, *4-5 (S.D. Fla. Aug. 7, 2009); Grguric v. Little Mermaid S., Inc., 2008 U.S. Dist.

LEXIS 30386, *5 (S.D. Fla. Apr. 10, 2008). In particular, state corporate law determines the

suability of a dissolved corporation . . . . Ripalda v. Am. Operations Corp., 977 F.2d 1464,

1468 (D.C. Cir. 1992) (citing Oklahoma Natural Gas Co. v. Oklahoma, 273 U.S. 257, 260

(1927) (capacity of dissolved corporation depends upon the corporate laws enacted by the state

that brought the corporation into being)). Here, SPI is undisputedly a Florida corporation.

(Dkt. No. 15 Ex. B). Floridas corporation statute speaks to the effect of a dissolution. It

provides, in relevant part, that:

(1) A dissolved corporation continues its corporate existencebut may not carry on any business except that appropriate to

wind up and liquidate its business and affairs, including:

(a) Collecting its assets;

(b) Disposing of its properties that will not be distributed in kindto its shareholders;

(c) Discharging or making provision for discharging itsliabilities;

(d) Distributing its remaining property among its shareholders

according to their interests; and

(e) Doing every other act necessary to wind up and liquidate itsbusiness and affairs.

20, 22 (2d Cir. 1983);Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366 (Fed. Cir. 1983). Plaintiffsmotion to strike Dkt. No. 28 is pending (Dkt. No. 29).

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(2) Dissolution of a corporation does not:

(a) Transfer title to the corporations property;

(b) Prevent transfer of its shares or securities, although theauthorization to dissolve may provide for closing the corporationsshare transfer records;

(c) Subject its directors or officers to standards of conductdifferent from those prescribed in ss. 607.0801-607.0850 except asprovided in s. 607.1421(4);

(d) Change quorum or voting requirements for its board ofdirectors or shareholders; change provisions for selection,resignation, or removal of its directors or officers or both; orchange provisions for amending its bylaws;

(e) Prevent commencement of a proceeding by or against thecorporation in its corporate name;

(f) Abate or suspend a proceeding pending by or against thecorporation on the effective date of dissolution; or

(g) Terminate the authority of the registered agent of thecorporation.

(3) The directors, officers, and agents of a corporation dissolvedpursuant to s. 607.1403 shall not incur any personal liabilitythereby by reason of their status as directors, officers, and

agents of a dissolved corporation, as distinguished from acorporation which is not dissolved.

Fla. Stat. 607.1405 (emphasis added). Undisputably, Florida law permits an aggrieved party to

sue a dissolved corporation. Samples v. Conoco, Inc., 165 F. Supp. 2d 1303, 1319 (N.D. Fla.

2001) (citing Fla. Stat. 607.1405); see also Grguric, 2008 U.S. Dist. LEXIS 30386, *6; Ron's

Quality Towing, Inc. v. Southeastern Bank of Florida, 765 So.2d 134, 135 (Fla. 1st DCA 2000).

InBrown, the Court ruled that the citizenship of a dissolved Florida corporation was relevant to

determining whether diversity of citizenship existed. 2009 U.S. Dist. LEXIS 71943, *4-5.

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The suggestion by Sinclair and SPI that the purported dissolution removes SPI as a party

or substitutes Sinclair personally for SPI is expressly contradicted by Florida law. Plaintiffs can

pursue their claims against SPI, even assuming arguendo that it has been dissolved.

Sinclair and SPI also claim that the summonses are defective because they supposedly

did not include a name and address for service of answers.3 Sinclair and SPI, however, were

well aware of the name and address of plaintiffs counsel. The name and address is set forth in

the complaint and in other documents filed with the Court to commence this case, and which

were personally served on Sinclair and SPI along with the summonses. (Dkt. Nos. 1, 2). On

June 7, 2010, the same day the summons and complaint was served, SPI posted the following on

its website:

Dan Parisi & Patton Boggs, LLP Have Filed Suit, Let The RideAnd Discovery Begin

Today, June 7, 2010 @ 7:55 PM I was served Summons in a CivilAction filed in the United States District Court for the District ofColumbia, Daniel Parisi, et al, v Lawrence W. Sinclair, et al. Casenumber 1:10-cv-0897-RJL (the RJL being District Judge RichardJ. Leon (left) who the case was assigned to.

(Dkt. No. 15 Ex. C; see also Ex. 1). Moreover, Sinclair and SPI also ignore the fact that they

communicated with plaintiffs counsel after service of the pleadings (see, e.g., Ex. 2), and served

3 When an alleged defect in service is due to a minor, technical error, only actualprejudice to the defendant or evidence of a flagrant disregard of the requirements of the rulesjustifies dismissal. Libertad v. Welch, 53 F.3d 428, 440 (1st Cir. 1995) (holding that DistrictCourt erroneously dismissed claims where the summons failed to state the name of the personserved); see also Chan v. Society Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)

(Technical defects in a summons do not justify dismissal unless a party is able to demonstrateactual prejudice.); Hobson v. Wilson, 737 F.2d 1, 45-46 (D.C. Cir. 1984) (dismissal fordefective service should be granted only when defendant was prejudiced); In re Pharmaceutical Indus. Average Wholesale Price Litig., 307 F. Supp. 2d 190, 196 (D. Mass. 2004) (Technicaldefects in the form of the summons and the complaint do not invalidate an otherwise proper andsuccessful delivery of process under Fed. R. Civ. P. 4.); FDIC. v. Swager, 773 F.Supp.1244, 1249 (D. Minn. 1991) (Technical defects contained within a summons do not justifydismissal unless a party is able to demonstrate actual prejudice.).

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their various court filings on plaintiffs counsel. (See, e.g., Dkt. Nos. 14, 23, 37, 38). This

argument does not provide any basis to deny plaintiffs motion for a default judgment.

Finally, Sinclair and SPIs response to the default judgment motion does not oppose the

specific relief sought by plaintiffs to be included in the judgment -- damages against SPI in the

amount of $5,000,000, an accounting and imposition of a constructive trust as to SPIs proceeds

from its defamatory statements and its ownership of any assets, including copyrights. Without

any such opposition, no hearing is necessary to award the relief sought pursuant to Fed. R. Civ.

P. 55(b)(2), and a judgment in plaintiffs favor should be entered against SPI.

CONCLUSION

For all the foregoing reasons, plaintiffs motion for a default judgment against SPI should

be granted.

Dated: August 3, 2010 Respectfully submitted,

/s/ Richard J. OparilRichard J. Oparil (D.C. Bar No. 409723)PATTON BOGGS LLP2550 M Street, NWWashington, DC 20037(202) 457-6000(202) 457-6315 (fax)

Kevin M. Bell (admittedpro hac vice)PATTON BOGGS LLP8484 Westpark DriveMcLean, VA 22102(703) 744-8000(703) 744-8001 (fax)

Attorneys for Plaintiffs

5109207

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CERTIFICATE OF SERVICE

I hereby certify that on August 3, 2010, a copy of the foregoing was served on counsel

for the parties that have appeared in the case by the Courts ECF system and on the following by

email:

Lawrence W. Sinclair9 Spring DrivePort Orange, FL [email protected]

Sinclair Publishing, Inc.9 Spring DrivePort Orange, FL [email protected]

s/ Richard J. OparilRichard J. Oparil (DC Bar No. 409723)

5109207


Document 39 Filed 08-03-10 Page 1 of 6 Parisi-Sinclair

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