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Case 1:10-cv-00897-RJL Document 100 Filed 02/17/11 Page 1 of 11

THE UNITED STATES DISTRICT COURT

1 FOR THE DISTRICT OF COLUMBIA
2

3 DANIEL PARISI, et al., )

)
4
Plaintiffs, )
)

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v. )
6 ) Case No.: 1:10-cv-00897-RJL
LAWRENCE W. SINCLAIR, et al., )
7 )
Defendants. )
8 )

10

11 CORRECTED REPLY MEMORANDUM IN FURTHER

SUPPORT OF LAWRENCE W. SINCLAIR’S MOTION TO DISMISS OR IN THE
12 ALTERNATIVE MOTION FOR SUMMARY JUDGMENT

13

14
/s/Lawrence W. Sinclair
Lawrence W. Sinclair, pro se
15
P.O. Box 9222
16 Chattanooga, TN 37412
(218) 269-2274
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CORRECTED REPLY TO OPPOSITION TO MOTION [94] TO DISMISS 1

PDF processed with CutePDF evaluation edition www.CutePDF.com

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Defendant Lawrence W. Sinclair, pro se, (“Sinclair” or “Defendant”), respectfully

1
submits this Reply Memorandum in further support of his motion to dismiss or in the alternative
2

3 for summary judgment on all causes of action asserted in the Complaint (the “Motion”).

4
I. PRELIMINARY STATEMENT

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6 At the December 22, 2010 Status Conference Hearing in this case, this Court gave

7 explicit instructions to the parties that (1) there will be no discovery in this case prior to a

8 decision on the pending motions; (2) the parties should refrain from filing a blizzard of paper
9 with the Court; and (3) all parties should stay focused on the issues of the case. Despite these
10
instructions, Plaintiffs have inundated this Court with an almost 250 page Opposition to
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Sinclair’s Motion, in which they spend the majority of their time arguing events from 1980 thru
12
2008 that are wholly irrelevant to the Motion1. Plaintiffs attempt to support their arguments with
13
hearsay, unreliable or unauthentic exhibits, and wholly speculative “declarations,” and then they
14
ask this Court for discovery that the Court has already said will not take place.
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Plaintiffs have repeatedly reaffirmed in every pleading and motion filed with this Court
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that they have brought this action based on Sinclair’s act of publishing Barack Obama & Larry
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18 Sinclair: Cocaine, Sex, Lies & Murder? , which Plaintiffs allege was published on June 15, 2009.

19 However, Plaintiffs Opposition to Sinclair’s Motion is packed full of immaterial exhibits dating

20 as far back as the early 1980’s. Clearly, any events allegedly occurred more than a year prior to

21 1
Examples of wholly irrelevant exhibits and argument contained in Plaintiffs’
Opposition have to do with the state of Sinclair’s physical health in 2006,
22 photos of Sinclair with his family, other lawsuits involving Sinclair,
Photos of Barack and Michelle Obama which plaintiffs swear are “bullet
23 ridden” which is absolutely untrue and immaterial, criminal charges against
Sinclair that are more than 20 years old and that have not been prosecuted, a
business plan for one of the Defendants prepared AFTER the alleged wrongs in
24
this case, and a compilation of anonymous “selected” blog entries assembled
and “formatted” by Plaintiff Parisi. See also Exhibit A hereto,
25 Supplemental Declaration of Sinclair.

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the filing of this suit could not form the basis for any claim for defamation or related wrongs
1
under the applicable statutes of limitation. Plaintiffs Opposition (Dkt No 98) also fails to
2

3 properly mark and identify its exhibits, thereby making it extremely difficult for the reader to

4 identify which exhibits are being referred to in the body of the Opposition.

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5 Sinclair in his Motion to Dismiss/for Summary Judgment (Dkt No. 94) addressed

6 Plaintiffs’ claims as set forth in the Complaint (Dkt No. 1) and demonstrated that Plaintiffs have
7 failed to state a claim for which relief can be granted. In Sinclair’s Memorandum (Dkt No. 94-1)
8
Sinclair demonstrated that at no time has he ever made any statements, verbal or written,
9
regarding WhiteHouse Networks LLC or White House Communications, Inc and therefore those
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Plaintiff corporations cannot have a cause of action against Sinclair for defamation, false light or
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any related alleged wrongs as a matter of law.
12
With respect to Plaintiffs Parisi and Whitehouse.com, Sinclair has demonstrated that they
13
also cannot have a cause of action against Sinclair for defamation or alleged related wrongs
14
under the standards in the Twombly and Iqbal cases, because the alleged defamatory statements
15

16 are substantially true, because these Plaintiffs have failed to allege in the Complaint specific
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17 facts showing that Sinclair acted with actual malice, and because Plaintiffs have failed to allege

18 in the Complaint specific facts showing that they suffered compensable damages as a result of

19 Sinclair’s alleged wrongs.

20 II. SINCLAIR’S SUBSTANTIAL TRUTH ARGUMENT
21
In the Opposition, Plaintiffs focus on two categories of statements made by Sinclair in the
22
Book that they claim are defamatory: (1) statements that Parisi and Whitehouse.com were paid
23
by agents of the Obama Campaign (to include David Axelrod) to conduct a rigged polygraph
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examination of Sinclair, and that (2) statements that Parisi was an internet pornographer and that
1
Whitehouse.com was an internet porn site.
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3 With respect to the latter statements, Plaintiffs make a weak and splitting-of-hairs

4 type of argument in their Opposition at 22-23 that Parisi is not a pornographer because he never

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5 personally took the adult photos that he plastered for years all over his notorious website,

6 Whitehouse.com. (Plaintiffs’ Opposition at 22-23). Most of society however would hold the
7 opinion that anyone who contracts with third parties for the production of pornography for sell
8
and distribution on the internet is himself a pornographer. Moreover, their reliance on a
9
“dictionary definition” of “pornographer” is improper based on their own cited case of Rudin v.
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Dow Jones & Co., 557 F.Supp. 535 (S.D.N.Y. 1983) in which the court in that case stated that
11
"dictionary definitions are not controlling in a defamation action..." 557 F.Supp. at 545.
12
Plaintiffs also argue that Whitehouse.com was not a pornographic website in 2009 when
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Sinclair’s book was published, even though they admit that it was an adult site from the 1990’s
14
through 2005. However, as Sinclair argued in his Memorandum in Support of his Motion at 16,
15

16 the Hughes, Guccione, Kenny and Bahr defamation cases all stand for the proposition that
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17 statements made in the present that are about an individual’s past are “substantially true” even

18 where there are changed ciscumstances at the time of publication. (Sinclair’s Memorandum at

19 16). Plaintiffs make no attempt in their Opposition to distinguish any of these cases.
20 Because Plaintiffs know that their case with respect to the well-known affiliation of Parisi
21
and Whitehouse.com with pornography is weak, they focus most of their Opposition in arguing
22
that they were defamed by statements in the Book alleging that Plaintiffs Parisi and
23
Whitehouse.com conducted a rigged polygraph examination of Sinclair at the behest of David
24
Axelrod. (See Opposition at 18-21). However as Co-Defendant Rense stated in his
25

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Memorandum in Support of Rense’s Motion (Dkt. 56) at 19: “[W]hen viewed objectively, a
1
claim that Mr. Parisi was associated with Mr. Axelrod, a then top advisor to the future President
2

3 of the United States, reflects positively on Mr. Parisi. As the Complaint fails to identify any

4 facts establishing that being hired by an Obama aide would cause one to be subjected to hatred,

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5 contempt, or ridicule, the statement lacks a defamatory meaning as matter of law.”

6 Nowhere in the Complaint do Plaintiffs allege that rigging a polygraph exam in order to
7 create a controversy for website seeking to make an name for itself as a news-gathering site is a
8
crime in California, the state where Sinclair’s polygraph was administered. Moreover, no
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objective reading of an allegation that Parisi rigged Sinclair’s polygraph test for political reasons
10
could lead a reasonable person to infer that Parisi was committing some crime in so doing.
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Most people reading such a statement would simply shake their heads and assume that any such
12
“political dirty tricks,” if true, were simply “politics as usual” in this country. In fact, Parisi has
13
been hailed as a folk hero of sorts by Obama supporters for Parisi’s efforts to discredit Sinclair,
14
whether or not those efforts were genuine. (Huffington Post, Countdown with Keith Olbermann
15

16 MSNBC ). The issue is what a reasonable reader would have understood the “rigged polygraph”
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17 allegations to mean—not what Parisi understood them to mean, as he mistakenly states in his

18 Opposition at page 8.

19 Plaintiffs argue that Sinclair cannot defend against their claim that the “rigged polygraph”
20 statement is defamatory based solely on what Sinclair was told in the anonymous phone call
21
made to him on February 25, 2008, less than three days after the polygraph had been
22
administered, citing the case of Olinger v. American Sav. & Loan Ass’n, 409 F.2d 142 (D.C.Cir.
23
1969). However, Sinclair never said in his Book or in this case that he relied exclusively on
24
what the anonymous tipster told him in making statements about the polygraph in his Book.
25

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In addition to the tip itself, which contained the advice that Parisi planned to issue a stop
1
payment order on Sinclair’s check, Sinclair relied on the fact that Parisi did in fact issue a stop
2

3 payment order on Sinclair’s check three days later on February 28, 2008 as the tipster had

4 predicted. (Sinclair Memorandum at 10.) Sinclair also relied on the fact that when Parisi was

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5 confronted by Sinclair with the allegations made by the tipster, in an email from Sinclair to Parisi

6 on February 25, 2008, Parisi, by his own admission, declined to deny them. (See Sinclair
7 Memorandum at 9 and Plaintiffs’ Opposition at 8). Surely, if Parisi felt in February, 2008 that
8
tipster’s allegations were defamatory, at the very least he would have shot a quick email back to
9
Sinclair categorically denying those allegations. But he didn’t.
10
Sinclair also relied on the fact that Parisi had routinely published prior stories on
11
Whitehouse.com about the polygraph that were false (e.g., stating on Whitehouse.com on
12
2/18/08 that the polygraph had been scheduled when in fact it had not then been; falsely stating
13
on Whitehouse.com on 2/22/08 that Sinclair wanted to change the payout of the polygraph
14
challenge; misleadingly claiming that polygraph administrator Gelb had a PhD when in fact his
15

16 degree is from a defunct, unaccredited diploma mill; falsely stating on Whitehouse.com on

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17 2/24/08 that Sinclair had failed “both” polygraphs when only one had been administered). (See

18 Sinclair’s Memorandum at 5-10).

19 Finally, Sinclair relied on the fact that an independent source, noted Chicago Tribune
20 reporter John Crewdson, had also called the anonymous tipster after Sinclair, and Crewdson
21
confirmed to Sinclair that the tipster had related the same story to Crewdson that he had told
22
Sinclair about the rigged polygraph. (See Sinclair Memorandum at 2,13; see also Sinclair
23
Supplemental Declaration, attached hereto as Exhibit A, at Paragraph 7).
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III. PLAINTIFFS FAIL TO ALLEGE FACTS OF ACTUAL MALICE IN THE

1 COMPLAINT
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3 Plaintiffs make no real attempt to deny that they are limited purpose public figures in this

4 case, having admittedly thrust themselves into the controversy over the allegations being made

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5 by Sinclair against Obama by issuing the “Polygraph Challenge” to Sinclair “in order to promote

6 the [Whitehouse.com] site and to further its goal of becoming a first-class political venue.”
7 (Opposition at p. 3, 1-2). As such, Plaintiffs are required to prove that Sinclair acted with “actual
8
malice” in publishing the allegations against Parisi and Whitehouse.com in the Book. Under the
9
decisions in Twombly and Iqbal, this means that in order to avoid a dismissal, Plaintiffs must
10
allege facts in the Complaint showing that Sinclair either acted with knowledge that the
11
statements at issue were false or with reckless disregard of whether they were false or not. New
12
York Times v. Sullivan, 376 U.S. at 279-280. However, there are no such facts alleged in
13
Plaintiffs’ Complaint. Plaintiffs’ Complaint contains only the naked allegation that the
14
statements by Sinclair were false when made. See Complaint, Dkt. 1, at paragraph 45.
15

16 Therefore, Plaintiffs’ Complaint does not meet the standard of Twombly and Iqbal as a matter of
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17 law and must be dismissed.

18 Plaintiffs attempt to argue at pages 23-27 of their Opposition that actual malice can be

19 found in the fact that Sinclair allegedly relied exclusively on the anonymous tipster in stating that
20 the polygraph had been rigged, but Sinclair has already addressed that issue in his original
21
Memorandum and here by indicating that he relied on several indications that what the tipster
22
was saying was true, including Parisi’s own failure to respond at all to the accusations of the
23
tipster when reported to him by Sinclair and Parisi’s issuance of a stop payment order on
24

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Sinclair’s check three days after the tipster predicted it would happen. More importantly, none
1
of this actual malice argument now made by Plaintiffs is contained anywhere in their Complaint.
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3 IV. PLAINTIFFS’ PRESENT CLAIM OF DAMAGES IS NOT ONLY ENTIRELY

ABSENT FROM THE COMPLAINT BUT IS WHOLLY SPECULATIVE
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5 As Sinclair argued in his Memorandum in Support of his Motion to Dimiss, Plaintiffs

6 cannot make a claim for defamation as a matter of law without a viable allegation of
7 compensable damages. In the Complaint, Plaintiffs’ only allegation of damage as a result of the
8
alleged defamation is that “as a direct and proximate result of the defamatory statements...the
9
Whitehouse.com website was shut down in 2008.” (Dkt No. 1 at paragraph 48). However, since
10
Plaintiffs also alleged that the defamatory statements were made with the publication of
11
Sinclair’s Book in June 2009, they cannot plausibly claim, as a damage resulting from
12
publication, an event that happened a year earlier.
13
In their Opposition, Plaintiffs realize that they are in deep trouble on damages and
14
attempt to put a “finger in the dyke” by throwing out new and wildly speculative assertions that
15

16 Whitehouse.com, a website with a notorious pornographic pedigree, could not be sold by Parisi
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17 at a domain name conference in the Fall of 2009 because Parisi “believes that his difficulty in

18 selling the domain name is directly related to the allegations in Sinclair’s book.” As support for

19 that “belief”, Parisi offers for the first time (not stated anywhere in the Complaint) that he was
20 asked “many times” at the domain name conference about Sinclair’s allegations. However Parisi
21
fails to identifying a single person who allegedly asked Parisi about Sinclair, or what specific
22
allegations made by Sinclair were raised by such unidentified persons, and he fails to come
23
forward with a scintilla of facts that a single person actually refused to buy the Whitehouse.com
24
domain name because of the allegations in Sinclair’s Book. (See Opposition at 28)
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Next, Plaintiffs state their belief that potential investors who were sent a business plan by
1
Parisi for a new venture, Whitehouse TV Network, in October, 2009 declined to invest in that
2

3 proposed new venture “due, at least, in part, to the Sinclair book and his allegations.”

4 (Oppositionat 28-29). This belief is not supported by any facts other than Plaintiffs’ bald

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5 allegation that some unamed investors, who have not given an affidavit in support of Plaintiffs’

6 present position, “asked us about the Sinclair matter.”

7 This “belief” that Plaintiffs were denied venture capital funds for Whitehouse TV Network
8
due to the Sinclair Book appears to overlook the obvious facts that the Whitehouse.com name
9
was already tarnished by its long association with a porn website, by the fact that the Fall of
10
2009 represented the height of the U.S. economic downturn under which even well established
11
businesses were having great difficulty getting new capital, and by the fact that Parisi was
12
proposing a wholly new kind of TV- based business venture for which he lacked any prior
13
experience. In short, Plaintiffs’ “belief” that they were not given venture capital for a new
14
business venture in the Fall of 2009 due to Sinclair’s Book is highly speculative, unsupported by
15

16 any credible facts as required by Twombly and Iqbal, and also is not mentioned anywhere in the
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17 Complaint.

18 V. PERMISSION TO AMEND THE COMPLAINT SHOULD NOT BE

GRANTED
19

20 Perhaps realizing that their case is in significant danger of dismissal for failure to meet
21
the pleading standards of Twombly and Iqbal, Plaintiffs make a pitch to this Court on pages 30-
22
31 of their Opposition that they should be permitted to amend their Complaint to plead a cause of
23
action for defamation with “more specificity.” However, as Sinclair pointed out in his
24
Memorandum in Support of his Motion, leave to amend should not be granted where an
25

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amendment would be futile. (Sinclair Memorandum at 22-23, 25). Here, it would be futile for
1
Plaintiffs to try to amend, because their Opposition reveals that even now, almost two years after
2

3 the publication of Sinclair’s Book, Plaintiffs cannot put forth any credible facts showing either

4 that Sinclair acted with actual malice in making the two categories of statements at issue or that

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5 Plaintiffs suffered compensable damages as a direct and proximate result of the publication of

6 those statements by Sinclair.

7 VI. CONCLUSION
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For the reasons stated in his Memorandum in Support of his Motion and in this Reply
9
Memorandum, Sinclair requests that his Motion to Dismiss be granted.
10

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12
Respectfully submitted February 17, 2011
13
/s/Lawrence W. Sinclair
14 Lawrence W. Sinclair, pro se
P.O. Box 9222
15 Chattanooga, TN 37412
(218) 269-2274
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1 CERTIFICATE OF SERVICE
The undersigned certifies that on February 17, 2011 the forgoing REPLY MEMORANDUM
2
IN FURTHER SUPPORT OF LAWRENCE W. SINCLAIR’S MOTION TO DISMISS OR
3

4 IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT was filed

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5 electronically with the Clerk of the Court to be served by operation of the Court’s electronic

6 filing system upon all parties listed below. The undersigned will also serve counsel listed below

7 via electronic mail.

8

9 Richard J Oparil; ROparil@pattonboggs.com

Kevin M. Bell; kbell@pattonboggs.com
10
Patton Boggs LLP,
11
Attorneys for Plaintiffs

12 Steven J. Weber; Steven.weber@huschblackwell.com

R. Prescott Sifton, Jr.; scott.sifton@huschblackwell.com
13 Husch Blackwell Sanders, LLP,
Attorneys for Defendant, Books-A-Million, Inc.
14
Stephen Smith; steve.smith@klgates.com;
15 Mathew Segal; matthew.segal@klgates.com,
Kari Vander Stoep; kari.vanderstoep@klgates.com
16
John Longstreth; john.longstreth@klgates.com
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K&L Gates LLP,

17
Attorneys for Defendant, Amazon.com, Inc.
18
Linda Steinman; lindasteinman@dwt.com
19 John Eastburg; roryeastburg@dwt.com
Davis Wright Tremaine LLP,
20 Attorneys for Defendants, Barnes and Noble, Inc. and Barnesandnoble.com

21 JoAnne Zawitoski; jzawitoski@semmes.com

Christina Bolmarcich; cbolmarcich@semmes.com
22 Semmes, Bowen, & Semmes,
Attorneys for Defendant, Jeffrey Rense
23
/s/ Lawrence W. Sinclair
24

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EXHIBIT 1
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EXHIBIT 2 
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Larry
From: Jtrimarco [jtrimarco@aol.com]
Sent: Monday, February 14, 2011 2:29 PM
To: larry@larrysinclair.org
Subject: Re: Request for confirmation of request and phone call advising you could not conduct the
requested Polygraph

Dear Lawrence-

I do remember having a conversation with someone regarding Barack Obama and allegations of sexual misconduct and

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illegal drug use in a vehicle. I did refuse to get involved in that case for several reasons. One of which was I am not A-
political, as required by the caller. (however, I do not consider that a disqualifier). I have no way of confirming who I spoke
to, nor can I go through the necessary steps to retrieve the phone records. If you are the person who contacted me, I
wish you good luck with your situation.

Sincerely,

-----Original Message-----
From: Larry <larry@larrysinclair.org>
To: jtrimarco <jtrimarco@aol.com>
Sent: Mon, Feb 14, 2011 12:49 am
Subject: Request for confirmation of request and phone call advising you could not conduct the requested Polygraph

Dear Mr. Trimarco:

On February 15, 2008 I called your office and left a message on your voice mail. The message was informing you that I
was looking to have a polygraph exam conducted on myself regarding some allegations I had made about then Senator
Barack Obama. I informed you I was looking for someone who was A-political with no ties to any of the then candidates,
as well as how much the exam would cost.

On February 17, 2008 you returned my Feb 15, 2008 call. When I did not answer you left me a voice mail informing me
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that you would not be able to conduct the requested polygraph. I resided in Duluth, MN at that time and my number was
218-464-1113.

I am currently one of six defendants in a federal civil suit brought by Dan Parisi of Whitehouse.com fame and they are
now claiming in Federal Court that my account of contacting your office and your returning my call on 2-17-2008
respectfully declining to conduct the polygraph is not true.

I would appreciate it very much if you remembered this incident and or could review your phone records for that time an
email me a simple email confirming I did contact your office on 2-15-2008 and that you did return my call and leave me
the voice message respectfully declining to perform a polygraph on 2-17-2008.

I thank you for your time and I truly hope that you can provide me the requested email confirming the two calls.

Respectfully,

Lawrence W. Sinclair d/b/a

Sinclair Publishing
Post Office Box 9222
Chattanooga, TN 37412
larry@larrysinclair.org

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DISCLAIMER:
This e-mail message contains confidential, privileged information intended solely for the addressee. Please do not read,

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copy, or disseminate it unless you are the addressee. If you have received it in error, we would appreciate your forwarding
the message back to us and deleting it from your system. Thank you.

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From: Crewdson, John M. (JCrewdson@tribune.com)

Sent: Mon 2/25/08 6:53 PM
To: Lawrence Sinclair (lws022737@hotmail.com)
Larry.....you gave me his name and number. You said he would deny being the source if I called him, but
you didn't ask me not to call him, or at least I didn't understand that that's what you meant. I thought you
were OK with my giving him a call. How else could I confirm what he was saying? If there was a
misunderstanding, I apologize, but he didn't seem very upset to hear from me and in fact was quite
helpful. Sorry about the way you feel, but I suppose it's understandable, even though there was no

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intention on my part to violate a source. I guess I won't hear from you again, so good luck with all this,
and take care. Jc

Byrnes, Tammy
Portland, ME 04103
207-899-0872
207-252-2796
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