LULAC VS Jan B. Tucker goes down in flames


 

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Voice of the Mainland
http://voiceofthemainland.blogspot.com/2014/10/lulac-lulac-loses-case-against-luevanos.html?m=1
Saturday, October 4, 2014

LULAC Loses Case Against Luevanos, the Editor and the NLLAC

LULAC sued the NLLAC, the Editor, Angel Luevano, Argentina Luevano and Jan Tucker in the federal court in San Francisco, California in October 2013. In September of this year, last month, the federal court issued orders that the cases against the Luevanos, the NLLAC and the Editor be dismissed.

The attorney for defendants has already filed for attorney’s fees in the case and might amount to sums in excess of $30,000.00. The Luevanos were granted permission to sue LULAC under the California SLAPP law for filing frivolous lawsuits. There could be additional litigation for damages resulting from the frivolous lawsuit. The attorney for LULAC in California was complaining to the court that the Editor (of Voice of the Mainland) was trying to ruin LULAC’s reputation.

The LULAC complaint had 87 allegations where all defendants were thrown into the mix and made 87 allegations against all the defendants without differentiating between who did what, against who, when it was said and what was the damage in each case. The lawsuit ran over 157 pages long. NLLAC and the Editor was represented by Ligia Parmenter out of San Rafael, California. LULAC was represented by the same stupid LULAC attorney who wrote the Luevanos in 2010 to cease and desist regarding LULAC matters, a total pendejo by the name of Xavier R. Baeza from Fremont, California. In his cease and desist letter to the Luevanos, he threatened the Luevanos that when talking to children in classroom presentations that the Luevanos could not make use of the word LULAC, that they could not put the word ex-LULAC anything next to their names.

Angel Luevano was the State Director of LULAC in 2010 when he was sacked by Rosales and Vera. Argentina Luevano was the VP for the Farwest when she was sacked from LULAC by Rosa and Luis. The court decision is 13 pages long. It is wordy enough and significant enough that it got cited by Leagle a sourcing of important cases that add weight to significant case law:

http://leagle.com/decision/In%20FDCO%2020140912814.xml/LEAGUE%20OF%20UNITED%20LATIN%20AMERICAN%20CITIZENS%20INC.%20v.%20NATIONAL%20LEAGUE%20OF%20LATIN%20AMERICAN%20CITIZENS

Court decisions from the federal district courts are not normally cited for case law sourcing. Being cited is an honor in legal circles.

My Commentary – Jan B Tucker

My name was thrown into this lawsuit by the League of United Latin American Citizens and it’s lawyers to retaliate against me for blogging about them:

http://janbtucker.com/blog/2011/06/18/attorney-xavier-rosario-baeza-wades-in-to-lulac-civil-war/

Having been a process server since 1973 and a private investigator since 1979 I’ve been involved in litigation for a long time. 999 times out of a 1,000 the right legal response to a lawsuit is to file some kind of response to it no matter how frivolous it is.

The allegations against me were SO FRIVOLOUS and stupid this became only the second time in my life that I didn’t bother to respond. LULAC’s attorneys tried to serve me repeatedly, usually incompetently. For example: serving the Complaint without the Summons and later waiting to properly serve me until months after the mandatory deadline for serving me had passed.

Effectively admitting that LULAC had no evidence against me whatsoever, they eventually dismissed the case against me, apparently thinking that this would save them from an inevitable malicious prosecution and abuse of process suit. They will now have to bone up on the laws of those torts in California, because I’m not finished with them…..

The Judge’s Decision

LEAGUE OF UNITED LATIN AMERICAN CITIZENS INC. v. NATIONAL LEAGUE OF LATIN AMERICAN CITIZENS Case No. 13-cv-04725-JSC

United States District Court, N.D. California.
September 11, 2014.
Argentina Davila-Luevano, Individually, Defendant, represented by Ligia M Melendez Parmenter, Parmenter Law Offices.
ORDER RE: MOTIONS TO DISMISS Re: Dkt. Nos. 28, 29, 30, 31

JACQUELINE SCOTT CORLEY, Magistrate Judge.

This trademark infringement/fraud action arises out of a dispute involving the membership of Plaintiff League of United Latin American Citizens Inc. (“LULAC”). LULAC alleges that after the individual defendants were expelled from LULAC they continued to hold themselves out as members of LULAC and created a rival organization which intentionally infringes on LULAC’s trademarks. Now pending before the Court are the motions of Defendants National League of Latin American Citizens (“NLLAC”) and Bernardo Eureste to dismiss for lack of personal jurisdiction, and of individual Defendants Argentina and Angel Luevano to dismiss for failure to state a claim and to strike pursuant to California Code of Civil Procedure section 425.16, the anti-Strategic Lawsuits Against Public Participation statute. Following oral argument on August 14, 2014, NLLAC sought to file an additional declaration in support of its motion. The Court gave NLLAC permission to do so, and ruled that Plaintiff could submit additional evidence and argument in opposition, but it declined to do so. (Dkt. No. 43.) After carefully considering the parties’ written submissions and oral argument the Court GRANTS the motions to dismiss for lack of personal jurisdiction and GRANTS the Luevanos’ motion to dismiss for failure to state a claim with leave to amend.

ALLEGATIONS OF THE COMPLAINT

LULAC is a Texas nonprofit and “the largest and oldest Latino membership based organization in the United States.” (Dkt. No. 1 ¶ 9.) It “asserts its advocacy by various means, including but not limited to civil rights, voter rights and other types of litigation.” (Id. ¶ 22.) It owns several federally protected trademarks. (Id. ¶¶ 10, 11, 12 and Exhs. 1-4.) LULAC “permanently removed” Defendants Bernardo Eureste, Angel Luevano and Argentina Luevano as LULAC members in 2011 for violations of LULAC’s constitution, protocol and by-laws. (Id. ¶¶ 15-17, 20.) After they were so removed, the individual defendants incorporated Defendant NLLAC in the state of Nevada. (Id. ¶ 14-18.)

The Luevanos subsequently filed a lawsuit in California state court seeking to overturn their expulsion. (Id. at ¶¶ 20-21.) Defendant Eureste “publicly supported” the Luevanos’ efforts. (Id. at ¶ 20.) They also “have begun promoting the creation of `NLLAC’ and continue to hold themselves out as members of LULAC, California and continue to fraudulently raise money and advocate using the LULAC marks for their own personal gain.” (Id. ¶ 23.) NLLAC attempts to take LULAC’s members by adopting LULAC’s slogan: “continuing the legacy of 1929.” (Id. \ ¶ 2.) “NLLAC has also adopted similar aspects of Plaintiff’s Constitution and By-Laws as its own including its membership/council structure.” (Id.)

Plaintiff makes federal claims for trademark infringement and false designation of origin, as well as state law claims for common law trademark, unfair competition, fraud, conversion and abuse of process. The Complaint does not distinguish among the defendants in each count; instead, each count appears to be pled indiscriminately against “defendants.”

DISCUSSION

A. The Motion to Dismiss for Lack of Personal Jurisdiction

Defendants NLLAC and Eureste move to dismiss for lack of personal jurisdiction. The plaintiff bears the burden of proving that personal jurisdiction is appropriate. Love v. Assoc. Newspapers, Ltd., 611 F.3d 601, 608 (9th Cir. 2010). “Where, as here, a motion to dismiss is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. Uncontroverted allegations in the complaint must be taken as true, and conflicts over statements contained in affidavits must be resolved in” the plaintiff’s favor. Id.

Since there is no applicable federal statute governing personal jurisdiction here, California law applies. California’s jurisdictional statute “is coextensive with federal due process requirements.” Id. at 609. Under those due process requirements, personal jurisdiction may be based upon either “general” or “specific” jurisdiction. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004).
1. General Jurisdiction

“For general jurisdiction to exist over a nonresident defendant . . ., the defendant must engage in `continuous and systematic general business contacts,’ that `approximate physical presence’ in the forum state. This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world.” Id. (citations omitted).

Plaintiff does not appear to allege and, in any event, has not come close to making a prima facie showing, that either Eureste or NLLAC is subject to general jurisdiction in California. No evidence, or even allegation in the Complaint or Plaintiff’s opposition, contradicts Eureste’s affidavits. He attests that he lives in Texas and has never so much as visited California. His alleged internet blog, “Voice of the Mainland,” is insufficient to confer general jurisdiction in California. See Shymatta v. Papillon, 2011 WL 1542145, at *3 (D. Idaho April 21, 2011) (“The few district courts to have considered blogs specifically have found them insufficient to establish general personal jurisdiction.”).

As NLLAC’s President, Eureste also attests that NLLAC does not own any real or personal property in California, does not have a registered agent for service of process, nor any bank accounts or even telephone numbers in California. Again, nothing in the record contradicts this evidence. That NLLAC is an alleged “national” organization is of no moment. Having “national” in the title of an entity’s name does not constitute the “continuous and systematic general business contacts,” that “approximate physical presence” in the forum state.
2. Specific Jurisdiction

Even if there is no general jurisdiction, a court may have specific jurisdiction of a defendant. Specific jurisdiction exists if three prongs are satisfied:
1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Schwarzenegger, 374 F.3d at 802. The plaintiff has the burden of proving the first two prongs; if it does so, the defendant must demonstrate that the court’s exercise of personal jurisdiction would be unreasonable. Id.

Under the first prong, the court engages in either a “purposeful direction” or a “purposeful availment” analysis. Id. Purposeful availment is generally employed in contract cases. Under that analysis, a “showing that a defendant purposefully availed himself of the privilege of doing business in a forum state typically consists of evidence of the defendant’s actions in the forum, such as executing or performing a contract there. By taking such actions, a defendant `purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ In return for these `benefits and protections,’ a defendant must—as a quid pro quo—`submit to the burdens of litigation in that forum.'” Id.

Tort cases, in contrast, employ the “purposeful direction” analysis. Id. Under that analysis the trial court “inquire[s] whether a defendant `purposefully direct[s] his activities’ at the forum state, applying an `effects’ test that focuses on the forum in which the defendant’s actions were felt, whether or not the actions themselves occurred within the forum.” Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en banc). The “effects” test requires that “the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010).

Defendants NLLAC and Eureste move to dismiss on the ground that they have not “purposefully availed” themselves of the privilege of conducting activities in California, that is, that they have invoked the benefits and protections of California law. (See, e.g., Dkt. No. 29 at 7.) The problem with this argument, however, is that, as explained above, “purposeful availment” is the analysis applied to contract claims, not tort claims as are made in this case. The Court will nonetheless endeavor to engage in the appropriate purposeful direction analysis with the “effects” test.
a. Eureste

Plaintiff contends that Eureste is subject to the jurisdiction of this Court notwithstanding that he has never stepped foot in California because “his connection to NLLAC is quite extensive and jurisdiction can be found by viewing the URL from the Nevada Secretary of state which is offered as Exhibit 3.” (Dkt. No. 32 at 5.) Exhibit 3 is a print out from SilverFlume, “Nevada’s Business Portal,” and identifies information about NLLAC, including its registered agent in Las Vegas, Nevada, and that it is registered as a Nevada corporation. It also identifies Eureste as holding several NLLAC offices and having a Texas address. The exhibit, however, says nothing about how Eureste in his individual capacity committed an intentional act directed at California from which Plaintiff’s claims arise. See Brayton Purcell LLP, 606 F.3d at 1128.

Plaintiff also asserts that Eureste’s blog, “Voice of the Mainland,” reveals his “obsession with causing harm to Plaintiff. He writes about LULAC constantly and cannot seem to get over the fact that he was expelled from” LULAC. (Dkt. No. 32 at 5.) Again, there is no explanation as to how this allegation—which does not appear in the Complaint nor in a declaration—constitutes an intentional act directed at California, especially since LULAC is a Texas corporation headquartered outside of California. The record is also unclear as to whether Plaintiff is accusing Eureste of engaging in trademark infringement through his blog; there is no such allegation in the Complaint and, of course, simply writing about another entity is not trademark infringement. But to the extent Plaintiff contends that Eureste’s blog activity somehow makes him subject to jurisdiction in California, his contention is contrary to the law. See Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418-20 (9th Cir. 1997) (holding that operation of passive website that did nothing to encourage forum residents to access its cite was not sufficient to confer specific jurisdiction); Shymatta, 2011 WL 1542145 at *4-5 (holding that the fact that a website was accessible in Idaho does not constitute an intentional act aimed at Idaho sufficient to confer specific jurisdiction). Eureste’s alleged blog attack on Plaintiff’s counsel is similarly insufficient. First, it is not alleged in the Complaint. Second, even if it was, it is not the basis for any of Plaintiff’s claims; Eureste cannot have infringed Plaintiff’s trademarks by criticizing Plaintiff’s counsel on the internet. Thus, even if the internet criticism of counsel is the “intentional act” directed at California, it does not meet the second prong of the effects test—that the claim arise from conduct directed at California.

Next, Plaintiff makes the conclusory allegation that Eureste “was instrumental in expanding Defendant NLLAC into California.” (Dkt. No. 32 at 6.) It explains that Eureste provided “guidance and advice in the Luevanos’ suit against Plaintiff in 2006 and 2010″ and “has shown an interest in the 2006 and 2010 lawsuits filed by Defendant Angel Luevano.” (Id. at 7.) Plaintiff cites no case, however, and the Court is not aware of any, that suggests that taking an interest in a California lawsuit is sufficient to confer jurisdiction in California over claims for trademark infringement and fraud, among others. Plaintiff also attaches to its opposition what is purported to be a print-out from Eureste’s blog in which he advises that NLLAC has already assigned a state director for California. That NLLAC has a California state director, however, does not mean that Eureste is an individual engaged in conduct that subjects him to lawsuit in California; indeed, this is just a different version of Plaintiff’s argument that because NLLAC is a national organization, Eureste, as its director, must as an individual be subject to jurisdiction in every state. Again, Plaintiff does not cite any caselaw to support its expansive theory of personal jurisdiction. Nor does Plaintiff offer any declarations in opposition to Eureste’s motion or ask for jurisdictional discovery. As Plaintiff has not met its burden of establishing personal jurisdiction over Eureste, his motion to dismiss is granted.
b. NLLAC

Plaintiff’s trademark infringement claims allege that NLLAC’s name and its “use of the slogan `continuing the legacy of 1929′” is likely to confuse consumers that NLLAC is affiliated with LULAC. (Dkt. No. 1 ¶ 27.) NLLAC responds that it is not subject to suit here because it does not have any contacts with California. With respect to NLLAC’s conduct in or directed at California, the Complaint alleges that defendant Angel Luevano was the NLLAC California director, which supports an inference that NLLAC was operating in California. (Dkt. No. 1 at ¶ 16.) In support of its motion to dismiss, however, NLLAC offers the declarations of its President, Bernard Eureste.1 He attests that NLLAC does not conduct any activities in California, and specifically denies that defendant Angel Luevano took the office of NLLAC California director; instead, he declares that NLLAC “has no officers or directors of any kind in the state of California.” (Dkt. No. 44.) The question, then, is whether Plaintiff has submitted evidence sufficient to contradict NLLAC’s declarations; if so, those conflicts must be resolved in Plaintiff’s favor. See Love, 611 F.3d at 608.

Plaintiff has submitted a purported blurb from what Plaintiff alleges is Eureste’s blog “Voice of the Mainland.” (Dkt. No. 32-1.) The entry is titled: “NLLAC Looking for State Directors & Councils.” Farther down it states that NLLAC “is looking for leaders who would assume the role of interim state director of the respective state of residence of the volunteer, one state director per state.” Following the link to the state director application the web entry states: “California has been assigned” as well as the “Vice President for the Far West.” Id.

The first question is whether the web page is admissible. On the one hand, Plaintiff does not authenticate the web page by declaration or otherwise. NLLAC, however, does not dispute that it made the web posting through its President, Eureste. There is also a hearsay issue. “Screen shots of internet web pages are not usually admissible to prove the truth of statements contained therein.” Ponds v. Veterans Medical Research Foundation, 2013 WL 607847, at *3 n.1 (S.D. Cal. Feb. 15, 2013); see also Bauman v. DaimlerChrylser AG, 2005 WL 3157472, at *10 n.5 (N.D. Cal. Nov. 22, 2005) (noting that web pages provided only unauthenticated hearsay). The blog statement—NLLAC has filled its interim California director—is being offered for the truth; however, the statement was made by NLLAC, a party opponent, and therefore an exception to the hearsay rule applies. See Fed. R. Evid. 801(d)(2)(A).

The next question is whether the fact that NLLAC filled its interim California state director position in October 2011 is sufficient to confer personal jurisdiction over NLLAC for Plaintiff’s trademark claims. It is not. Plaintiff must show that NLLAC (1) committed an intentional act, (2) expressly aimed at California, (3) causing harm that NLLAC knows is likely to be suffered in California. See Brayton Purcell LLP, 606 F.3d at 1128. For this trademark case, that intentional act would be using the NLLAC mark and the confusingly similar slogan in California. But Eureste attests that NLLAC has not conducted any activities in California and Plaintiff does not offer any evidence to refute that assertion. NLLAC could have filled an interim state director position and then, for whatever reason, not conducted any activities in California. Thus, while the Court must resolve any disputes in the evidence against NLLAC, on the present record there is no dispute with regard to NLLAC’s use of its mark in (or specifically directed at) California.

Plaintiff’s insistence that the Luevanos held themselves out as LULAC officers after they had been terminated from LULAC is insufficient to confer personal jurisdiction over NLLAC. The relevant conduct is NLLAC’s. Despite the nearly hundred pages of attachments to the Complaint, and the further attachments to Plaintiff’s opposition, there is nothing in the evidentiary record that contradicts the evidence that NLLAC has not operated in California; in other words, it has not used the mark in California and therefore Plaintiff’s trademark claims do not arise from an intentional act directed at California. As Plaintiff has not met its burden of establishing personal jurisdiction of NLLAC, its motion, too, must be granted.
B. The Luevanos’ Motion to Strike

California’s anti-SLAPP statute provides “for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 421 (9th Cir. 2014) (quoting Club Members for an Honest Election v. Sierra Club, 45 Cal.4th 309 (2008)). To determine whether a claim should be stricken, the Court engages in a two-step analysis. First, the Court determines whether the defendants (here, the Luevanos) have made a prima facie showing that their challenged actions arise from conduct in furtherance of the exercise of their right to free speech. Id. at 422. If this prima facie showing is made, the burden moves to Plaintiff to establish “by competent evidence, a probability that it will prevail on [the challenged] claims.” Id.

The Luevanos appear to contend that each and every “count” arises from protected activity and are all therefore covered by the SLAPP statute. Not so. The anti-SLAPP statute does not apply to federal claims in federal court. See Garcia v. Allstate, Bulletin Displays, LLC, 448 F.Supp.2d 1172, 1180 (C.D. Cal. 2006). Nor have the Luevanos established that the unfair competition and fraud claims arise from protected speech, in part because, as is discussed below, it is difficult to discern from the Complaint precisely what conduct Plaintiff challenges. Should Plaintiff’s amended complaint reveal that the counts are indeed covered by the anti-SLAPP statute, the Luevanos may renew their anti-SLAPP motion as to those counts.

The result is different for the abuse of process count. Plaintiff alleges that the Luevanos filed a lawsuit challenging their removal from LULAC without a basis to do so. (Dkt. No. 1 ¶ 72.) Claims based on “communicative conduct such as the filing, funding, and prosecution of a civil action” are covered by the anti-SLAPP statute. Rusheen v. Cohen, 37 Cal.4th 1048, 1056 (2005). Thus, the claim for abuse of process is covered by the anti-SLAPP statute. See Flores v. Emerich & Fike, 385 Fed.Appx. 728, 732 (9th Cir. June 29, 2010) (unpublished) (citing Siam v. Kizilbash, 130 Cal.App.4th 1563, 1570 (2005)); see also Smith v. Fireside Thrift Co., 2007 WL 2729329 * 3 (N.D. Cal. Sept. 18, 2007) (holding that abuse of process claim arising from defendant having filed suit against plaintiff, failing to serve plaintiff, and then filing false proof of service was communicative conduct covered by the anti-SLAPP statute). Plaintiff therefore bears the burden of demonstrating “that the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Metabolife Intern., Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir. 2001) (internal quotation marks and citation omitted).

To prevail on a California state law claim for abuse of process, a litigant must establish that the defendant “(1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” Rusheen, 37 Cal. 4th at 1057. Plaintiff’s opposition does not even attempt to explain how these elements are satisfied, or even likely to be satisfied; instead, Plaintiff merely argues that the Luevanos’ lawsuit was dismissed with prejudice and no appeal was filed. Losing a lawsuit is not the standard for an abuse of process claim; if it were, nearly every lawsuit would spawn a follow-up lawsuit for abuse of process. As Plaintiff has not made a prima facie showing of facts sufficient to support judgment in its favor on the abuse of process claim, the anti-SLAPP motion to strike the claim must be granted.
C. The Luevanos’ Motion to Dismiss

The Luevano defendants also move to dismiss the entire Complaint against them for failure to state a claim. A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint where the action fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a `probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). Under Federal Rule of Civil Procedure 8(a)(2), a party is required to only make “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal citations and quotations omitted).

For purposes of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations and quotations omitted). “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

The Complaint fails to state a claim because it is replete with conclusory allegations and does not distinguish among defendants. Plaintiff fails to identify which defendant is sued under which count and for which conduct; instead, each count merely discusses “defendants'” conduct. Such generic allegations deprive each defendant “a fair and meaningful opportunity to defend itself.” Powell v. Residential Mortg. Capital, 2010 WL 2133011, at *3 (N.D. Cal. May 24, 2010).

The Complaint also lacks sufficient factual allegations to give rise to a plausible inference of liability as to each defendant. For example, Plaintiff alleges that the individual defendants, without authorization from Plaintiff LULAC, continued to use the LULAC mark even after they had been removed from the organization. (Dkt. No. 1 ¶ 23.) The Complaint then refers to Exhibits 7 and 8 of the Complaint. Exhibit 7 appears to be a blog post referring to the incorporation of “Texas LULAC.” (Id. at 39.) It mentions several officers of Texas LULAC, but none is either Luevano defendant. It does recount how the Luevanos were removed from their positions with LULAC, but it is not obvious how such a statement would constitute trademark infringement by the Luevanos. Exhibit 8 is an email that does not appear to be to or from either Luevano defendant and, again, is discussing Texas LULAC. Thus, it is unclear how Exhibits 7 or 8 fit into Plaintiff’s theory of liability by the Luevanos.

Plaintiff also attached to the Complaint unidentified exhibits that involve an entity entitled “the California LULAC Institute” with which the Luevanos appear to have been involved, but the exhibits appear to be dated from 2009 and 2010—before the Luevanos were removed from LULAC. In sum, the Complaint does not adequately explain what the Luevanos did that Plaintiff contends was unlawful.

The fraud claim fails for the additional reason that it does not meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b). The Complaint appears to refer to several different fraudulent schemes, but Plaintiff fails to plead the required “time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (internal citation and quotation marks omitted). For example, Plaintiff alleges that “Defendants” created at least three non-profit corporations to collect funds for LULAC, and that “Defendants” misappropriated the funds for their own purpose. (Dkt. No. 1 ¶ 57.) What non-profit corporations? What did each named defendant do to raise the funds? When did they raise the funds? What did they say that was a misrepresentation? Plaintiff also refers to a fraud against the Oakland Airport Hilton (id. ¶ 58), but as the Hilton is not a plaintiff it is unclear why “Defendants” allegedly defrauding the Hilton is a claim that may be brought by Plaintiff. And Plaintiff refers to “Defendants” engaging in a solicitation of funds through the California LULAC Institute for the Spring 2010 California State LULAC Convention, but that there has never been an accounting. (Id. 59.) What is the fraud here, who was defrauded, and when?

Accordingly, the remaining claims against the Luevanos shall be dismissed with leave to amend. The amended complaint shall specify which defendant is sued under each count, and make factual allegations as to the conduct of each defendant relevant to each specific count. For the fraud claim, Plaintiff must also satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b).

CONCLUSION

Plaintiff bears the burden of proving personal jurisdiction. It has not done so as to Defendants NLLAC and Eureste; accordingly, their motions to dismiss for lack of personal jurisdiction are GRANTED. As the Luevano defendants have met their burden of proving that the abuse of process claim is covered by the anti-SLAPP statute, and Plaintiff has not submitted facts, or even argument, sufficient to sustain judgment in its favor on that claim, the motion to strike the abuse of process claim is also GRANTED. The remaining claims against the Luevanos are dismissed for failure to state a claim. Plaintiff may file an amended complaint within 20 days of this Order. Failure to file a timely amended complaint will mean the claims are dismissed with prejudice. As explained at oral argument, following the filing of the amended complaint, the case will be stayed to enable the remaining parties to engage in court-sponsored mediation. A further case management conference is scheduled for December 11, 2014 at 1:30 p.m.

The case is referred to the Court’s ADR program for a mediation to take place within 90 days. This Order disposes of Docket Nos. 28, 29, 30 and 31.

IT IS SO ORDERED.
FootNotes

1. Following the hearing on August 21, 2014, Defendants asked for permission to file a supplemental declaration in support of their motion. The Court granted the request, and gave Plaintiff the opportunity to file a response, including any additional evidence. (Dkt. No. 43.) Plaintiff chose not to file anything further.


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Tribal Trust Litigation: Information Wanted (good, bad, or ugly)


 

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Navajo Nation SettlementI’m working on an article for CounterPunch Magazine on Native American Tribal Trust litigation and how these lawsuits have been handled by non-profits such as the Native American Rights Fund as opposed to various groups of private lawyers.

I’m eager to get in touch with anybody who has information on any of the following people, tribes or institutions. Note that inclusion on the list doesn’t mean that they have done anything wrong; some of the people listed may be potential victims. Note also that some of these names may be very common so do not impute anything adverse just because somebody’s name might be in the list because of its commonality. If you know anything or know anybody who might know anything about these folks, bad, good, or otherwise, please e-mail me at:

whistleblower@janbtucker.com

or, use the feedback form at the bottom of this posting.

You may specify that your identity is to be considered confidential. As a journalist I am immune from court contempt proceedings. If you want to blow the whistle on corruption of any sort, I will protect your anonymity to the best of my ability.

Freedom of the Press IssueAside from my role as a private investigator which gives my sources a certain degree of protection under Section 7539(a) of the California Business & Professions Code, I also am protected by the immunity conferred by the California Constitution Article I, Section 2(b) and California Evidence Code Section 1070. I am a card carrying member of the Pacific Media Workers Guild Local 39521. I formerly served as the First Vice President of Newspaper Guild Local 39069 under presidents Gary North and Joe Segura. I am criminal justice and legal affairs columnist for CounterPunch Magazine as well as the operator of this Detective’s Diary blog.

Tribes That Have Entered into Settlement Agreements of Tribal Trust Cases

1. Assiniboine and Sioux Tribes of the Fort Peck Reservation
2. Bad River Band of Lake Superior Chippewa Indians
3. Blackfeet Tribe of the Blackfeet Indian Reservation
4. Bois Forte Band of Chippewa
5. Cachil Dehe Band of Wintun Indians of the Colusa Rancheria
6. Chippewa Cree Tribe of the Rocky Boy’s Reservation
7. Coeur d’Alene Tribe
8. Confederated Salish and Kootenai Tribes
9. Confederated Tribes of Siletz Indians
10. Confederated Tribes of the Colville Reservation
11. Confederated Tribes of the Goshute Reservation
12. Crow Creek Sioux Tribe
13. Eastern Shawnee Tribe of Oklahoma
14. Hualapai Indian Tribe
15. Iowa Tribe of Kansas and Nebraska
16. Kaibab Band of Paiute Indians of Arizona
17. Kickapoo Tribe of Kansas
18. Lac Courte Oreilles Band of Lake Superior Chippewa Indians
19. Lac du Flambeau Band of Lake Superior Chippewa Indians
20. Leech Lake Band of Ojibwe
21. Lower Brule Sioux Tribe
22. Makah Indian Tribe of the Makah Reservation
23. Mescalero Apache Tribe
24. Minnesota Chippewa Tribe
25. Nez Perce Tribe
26. Nooksack Indian Tribe
27. Northern Cheyenne Tribe of Indians
28. Omaha Tribe of Nebraska
29. Passamaquoddy Tribe of Maine
30. Pawnee Nation
31. Prairie Band of Potawatomi Nation
32. Pueblo of Zia
33. Quechan Tribe of the Fort Yuma Reservation
34. Red Cliff Band of Lake Superior Chippewa Indians
35. Rincon Luiseño Band of Indians
36. Rosebud Sioux Tribe
37. Round Valley Indian Tribes
38. Salt River Pima-Maricopa Indian Community
39. Santee Sioux Tribe of Nebraska
40. Sault Ste. Marie Tribe
41. Shoshone-Bannock Tribes of the Fort Hall Reservation
42. Soboba Band of Luiseno Indians
43. Spirit Lake Dakotah Nation
44. Spokane Tribe of Indians
45. Standing Rock Sioux Tribe
46. Stillaguamish Tribe of Indians
47. Summit Lake Paiute Tribe
48. Swinomish Indian Tribal Community
49. Te-Moak Tribe of Western Shoshone Indians
50. Tohono O’odham Nation
51. Tulalip Tribes
52. Tule River Indian Tribe
53. Ute Indian Tribe of the Uintah and Ouray Reservation
54. Ute Mountain Ute Tribe
55. Winnebago Tribe of Nebraska
56. Qawalangin Tribe of Unalaska
57. Tlingit & Haida Tribes of Alaska
58. Northwestern Band of Shoshone Indians
59. Hoopa Valley Tribe
60. Ak-Chin Indian Community
61. Oglala Sioux Tribe
62. Yoruk Tribe
63. Cheyenne River Sioux Tribe
64. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony
65. Seminole Nation of Oklahoma
66. Otoe-Missouria Tribe of Oklahoma
67. Samish Indian Nation
68. Tonkawa Tribe of Indians of Oklahoma
69. Yakama Nation
70. Miami Tribe of Oklahoma
71. Navajo Nation

Individuals and law firms:

1. Gregory Andrew Yates, Esq.

2. Patricia A. Marks, Esq.

3. Luis G. Harbottle

4. Engstrom, Lipscomb & Lack

5. Girardi & Keese

6. Andrew L. Sandler, Esq.

7. BuckleySandler LLP

8.  Mario Gonzalez, Esq.

9.  Maurice Johnson, Esq.

10. Native American Rights Fund

 

 


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Is Tucker a Jew, a Zionist, a Mossad Agent, or or or?


 

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In the private investigative world, the Archie Bunkers of the world accuse me of being anti-police and a Communist Pinko Meathead.  On the left, I get accused of being everything from a CIA/FBI operative to a Zionist agent for Mossad by one faction and accused of not even being Jewish at the same time by another faction.  Here’s a chart detailing the latest wacky accusations being circulated all over creation about me.  They are really rather amusing….and, as it happens, some of the half-truths circulated about me turn out to have some very serious revelations about Kevin D. Akin of the California Peace & Freedom Party…..

The Players:

Augstine Cebada aka Chris Eichwald, rabid anti-semite

Augstine Cebada aka Chris Eichwald, rabid anti-semite

Convert Kevin D Akin claims publicly that Jan  B Tucker isn't a Jew

Convert Kevin D Akin claims publicly that Jan B Tucker isn’t a Jew

Randy Gamez says Tucker's a Jew who has no business being in the Chicano Moratorium because he's a Jew... and Luis Rodriguez denied that this was anti-semitic

Randy Gamez says Tucker’s a Jew who has no business being in the Chicano Moratorium because he’s a Jew… and Luis Rodriguez denied that this was anti-semitic

 

Chart_001Chart_002Chart_003 Chart_004 Chart_005 Chart_006 Chart_007 Chart_008 Chart_009 Chart_010 Chart_011 Chart_012 Chart_013 Chart_014 Chart_015 Chart_016

Usable links from the chart:

http://law.justia.com/cases/california/calapp3d/190/560.html

http://www.amazon.com/Secret-Police-Inside-Elite-Network-ebook/dp/B008LW7DQ8

http://articles.latimes.com/1991-05-11/local/me-1356_1_city-council

http://www.advancedbackgroundchecks.com/address/712/Blaine/Riverside/CA

http://janbtucker.com/blog/2013/03/19/pfp-takes-the-stalinist-path/

http://sheriff.klamathcounty.org/press-releases/frank-skrah

http://www.jewishjournal.com/thegodblog/item/la_causa_kpfks_anti-semitic_radio_show_gets_suspended_20090326

http://janbtucker.com/jb_tucker_in_action

http://janbtucker.com/jews/

http://www.encounterbooks.com/books/judibari/

http://janbtucker.com/blog/2012/10/30/konversations-with-kevin-7/

 

 

 

 


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Employee Social Media Comments Protected by Federal Labor Law


 

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September 11, 2014

Important — and good – news about workers and social media. From  Newspaper Guild attorney Barbara Camens:

The NLRB has affirmed its commitment to broadly protect employees who use social media to discuss workplace concerns.

Concerted ActivityIn Triple Play Sports Bar, 361 NLRB No. 31 (August 22, 2014), the Board found unlawful the discharge of two employees for a Facebook discussion of their employer’s mistakes in income tax with holding.  The first employee had simply “liked” a comment posted by a former employee:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!”

The second had posted the following comment: “I owe too. Such an asshole.” The employer fired both for disloyalty, defamation, disparagement and undermining the company’s public image.

Triple Play NLRBThe Board found the Facebook communications “concerted” for purposes of National Labor Relations Act protection as the communications addressed a mutually held workplace concern regarding employee tax liabilities.  The Board then discussed whether the social media posts were rendered unprotected on grounds of disloyalty.  Because the comments were made off-duty and off-site, the Board found inapplicable its Atlantic Steel test, which analyzes whether face-to -face communications at the workplace between an employee and a supervisor are “so opprobrious” as to lose protection of the Act.

The Board instead followed the Supreme Court’s test in Jefferson Standard and Linn and found the employee comments to be neither disloyal nor defamatory:

Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.

Because the Facebook comments were fully protected by the Act, the Board ordered reinstatement and back pay for both discharged employees.

Finally, the Board struck down as overly broad the employer’s “Internet/Blogging” policy contained in its employee handbook. The policy provided:

…when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment…

The Board found the ban on “inappropriate” internet discussions to be so vague as to unlawfully chill the exercise of protected communication rights.

The Triple Play decision is most welcome, as several social media decisions – including Hispanics United of Buffalo – have been set aside by Noel Canning, the Supreme Court ruling that rescinded the recess appointments of certain Board members. Stay tuned as the Board continues to respond to the impact of Noel Canning.


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THE ONE MILLION HIT MAN!


 

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At One Million all-time page hits…. see below the best of the Detective’s Diary for the last year

As of 1:20 a.m. PST 9/19/14:

Site Statistics

Unique Pages Served: 45785

Total Sessions: 291356

Total Page Hits: 1000001

Check out our best posts over the past year….

The Adventures of Eddis the Menace
http://wp.me/p4qTy8-6s2

St Louis, Ferguson, Michael Brown and Why I’m Not Surprised
http://wp.me/p4qTy8-40D

District Attorney Report on Andy Lopez Death is a Travesty
http://wp.me/p4qTy8-35a

Take Cover: Hired Mudslinger Rides Into the 2014 Election
http://wp.me/p4qTy8-1KU

Iraq’s Future is Yugoslavia
http://wp.me/p4qTy8-1Ji

Boxing: A Conspiracy in Restraint of Trade?
http://wp.me/p4qTy8-1pK

A Tale of Two Mothers-Part I
http://wp.me/p4qTy8-16s

Constitutional History of Secession of the former USSR
http://wp.me/p4qTy8-14T

Shame on Labor & Miguel J. Santiago
http://wp.me/p4qTy8-13y

Telephone Metadata and Due Process
http://wp.me/p4qTy8-12f

Behind the Scenes – People v. Noguez
http://wp.me/p4qTy8-10g

LA City Auditor Calling It Quits
http://wp.me/p4qTy8-Y4


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The Adventures of Eddis the Menace


 

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Deadbeat dadShasta County, California went after Eddis “the Menace” Davenport in Shasta County Superior Court Case No. 007642 as a deadbeat dad.  Demonstrating the pathetic state of child support collection departments in California I never got a response from Shasta County when I put them on notice that:

(a) Eddis Davenport has apparently adopted the alias Ellen Davenport with which he uses SSN 618-xxxxxxx (and his own date of birth) to evade his child support obligations and for other purposes of fraud;
(b) Eddis Davenport is operating E. Davenport Food Group LLC (California LLC #201313010026) at 7601 S Western Ave Los Angeles CA 90047;
(c) Eddis Davenport appears to be a thrice convicted felon: his felony and/or moral turpitude convictions include forgery in the State of Kansas (Johnson County, Case No. K59918) and Los Angeles Superior Court (Case Nos. YA032518; SA016309);  [I subsequently found that he also did federal time for fraud, see the last two pages of his criminal records, below]
(d) Eddis Davenport is currently living at xxxxxxxxxx LOS ANGELES CA 90056;
(e) Eddis Davenport is, according to my clients, receiving public assistance of various types including but not limited to SNAP benefits; he is believed to be receiving public assistance through his own name and possibly other names at xxxxxxxxxxxx, LOS ANGELES, CA 90008.

On top of all that, without the knowledge of the property owner where he was operating an ice cream parlor, Eddis apparently took out a fire insurance policy with Builders & Tradesmen Insurance in the property owners name.  Then the building conveniently had a fire and only then did the insurance company bother to let the supposed policy owner know that she purportedly had the policy and that supposedly, an attorney she’d never heard of — Albert D. Mastroianni — was representing her on a claim!

Now just in case you think that any of this is a coincidence consider Eddis’s criminal record (and while we’ve made complaints to the LAPD, LAFD, State Bar, and Dept of Insurance, the only agency that we know to have promptly followed up is the Dept of Insurance):

Eddis Crim1_001Eddis Crim1_002Eddis Crim1_003Eddis Crim1_004Eddis Crim1_005Eddis Crim1_006Eddis Crim1_007Eddis Crim1_008Eddis Crim1_009Eddis Crim1_010Eddis Crim1_011Eddis Crim1_012Eddis Crim1_013Eddis Crim1_014Eddis Crim1_015Eddis Crim1_016Eddis Crim1_017Eddis federal_001Eddis federal_002


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Chicano Moratorium Press Conference–From the Frontlines of Ferguson


 

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Rls Press Conference_001


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Government Sanctioned Murder by Cop


 

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Government-sanctioned Murder by Cop – in Sonoma County and Beyond
 
by Elbert “Big Man” Howard                                                                                 August 19th, 2014
L:  Irv Sutley, Peace & Freedom Party State Chairperson, 1970-72; R:  Elbert "Big Man" Howard, Black Panther Party founder

L: Irv Sutley, Peace & Freedom Party State Chairperson, 1970-72; R: Elbert “Big Man” Howard, Black Panther Party founder

It is late at night and I am watching the 24-hour coverage by the major television news media stations of the murder of Michael Brown and the goings-on in Ferguson, Missouri. I am very tired but still I watch, transfixed. Once again, a young, unarmed Black man, an 18-year-old child really, had been gunned down by a cop in broad daylight, for all to see. Brown was not shot during the commission of a crime but in a position of surrender with his hands held up. Yet, still he was shot, at least six times, including once in the top of his head.

 
The news media reporters in Ferguson are now being charged by law enforcement with making actions by “outside agitators” worse and many of them have been tear-gassed , and some arrested, along with peaceful protestors, who have not been allowed to stand still and have to keep moving. Now the people are told to disperse or be arrested, although the two-day curfew has been lifted. The images of the multitude of combat-ready, armed-to-the-teeth, totally militarized law enforcement officers, including the National Guard and the arrests occurring before my eyes, the tear-gassing and the anger, are all too familiar to me. I am now seventy-six years old, and still here, despite being one of an “endangered species” both as an African-American male, and also as one of the original six founders of the Black Panther Party for Self-Defense, which formed in October 1966, originally for the purpose of ridding our communities of police brutality and murderous, racist, bullying cops.
 
The murder of 13-year-old Andy Lopez on October 22nd, 2013, and the decision, so many months later, by Sonoma County D.A. Jill Ravitch, to clear Sheriff’s Deputy Erick Gelhaus of the crime, is still fresh in my mind. I think of the mind-boggling, insulting, reprehensible decision to send Gelhaus back out this week to patrol and terrorize the Latino community members and others – no surprise to me, but sickening all the same. It was a bright and sunny day that October 22nd, recognized as the date for all to stand up against police brutality, when Gelhaus, a “trained weapons instructor and firearms expert”, spotted Andy, who was carrying a toy gun and was on his way to a friend’s house. Within seconds, Gelhaus fired eight shots, seven of which struck and killed 13-year-old Andy.
 
So many other victims come to mind, like Oscar Grant, the young Black man who was shot down and killed while handcuffed, defenseless and on the ground, by a Bart policeman in Alameda County. An unarmed young Trayvon Martin in Florida was returning home when an armed security guard decided to follow him because he “looked suspicious” and then killed him. Eric Garner, 43, died on July 17th, after an officer put him in a choke hold while other officers held him down,during an arrest on Staten Island. No first aid was administered to him by either the police or the EMTs. In Santa Monica, on the side of a freeway, this past July, we saw on video, 51-year-old grandmother Marlene Pinnock being held down on the ground and beaten by a uniformed cop, without apparent reason.
 
No cop has ever been arrested for any of these crimes, except for Oscar Grant’s killer, who was incarcerated for a few short months. Why? It could be said that law enforcement organizations make large contributions to select political candidates and leaders which keep them in control and in power. When public protests against police brutality occur, the police roll out their military dress and hardware, which include automatic guns, armored personnel carriers and tanks. Most of this hardware is issued to the state and county by the US Department of Homeland Security.
 
As we have seen in Ferguson, Missouri, military force is now what meets those engaged in peaceful protests. All human and civil rights appear to be null and void, as does the Constitution. Yet we continue to elect officials who trample on our rights and allow killer cops to shoot down our children of color, and others, in cold blood. Make no mistake about it – what we are seeing here is a POLICE STATE.
 
I am reminded of what James Baldwin said in 1966, “The law is meant to be my servant, not my master, still less my torturer and my murderer.” If we, as a society, are judged by how humanely our governing bodies and their hired “enforcers” treat human beings, in this country and abroad, we have absolutely devolved and failed our children and the generations to come, miserably.
 
Elbert “Big Man” Howard                                                                              Santa Rosa, CA
Elbert “Big Man” Howard is a founding member of the Black Panther Party and is an author, lecturer, volunteer radio DJ and community activist in Sonoma County.

 


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St Louis, Ferguson, Michael Brown and Why I’m Not Surprised


 

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February 8, 1968, South Carolina State University at Orangeburg, 3 killed and 23 wounded by police while protesting racial segregation.

 

Mary Ann Vecchio at Kent State May 4, 1970

Mary Ann Vecchio at Kent State May 4, 1970

May 4, 1970, 4 killed, 9 wounded by Ohio National Guard at Kent State University during Vietnam War protest.

 

May 8, 1970, 11 students and journalists bayoneted at University of New Mexico by New Mexico National Guard during Vietnam War Protest.

 

Jackson StateMay 12, 1970, 2 killed, 12 wounded at Vietnam War protest at Jackson State University.

 

August 29, 1970, journalist Ruben Salazar and two members of the Brown Berets killed by Los Angeles Sheriffs at then-Laguna Park (now Salazar Park) when law enforcement attacked a peaceful anti-war/Chicano Power demonstration of 30,000 people in East Los Angeles.

 

Mayday 2007May 1, 2007, LAPD attacks immigrant rights demonstrators and journalists in MacArthur Park.

 

August 13, 2014 IN ST. LOUIS/FERGUSON: Demonstrator shot and two reporters (Washington Post and Huffington Post) arrested; media ordered by police to turn off their cameras before they attacked both demonstrators and journalists.  An Al Jazeera news crew was attacked by police with tear gas, rubber bullets and bean bags.

 

Sound like a pattern?

Why am I not surprised?

GatewayI happen to love St. Louis and Missouri. I was there in 1972 and 1975 for the People’s Party (Peace & Freedom Party’s national affiliate) national conventions where we nominated Dr. Benjamin Spock and Black Panther Education Minister Margaret Wright for President in those years. Missouri geology reminds me in a strange way of California; because of major geological faulting and earthquakes, the strata is usually on a 25% slant, similar to the way that strata along California roadways is never lying straight and very unlike most of the rest of mid-America.

 

Years later I returned to St. Louis to work some cases there as a private investigator (before Missouri had its own licensing law). What I learned about Missouri politics, law enforcement and sociology makes me as jaded about that State as I am about government corruption and law enforcement misconduct in Los Angeles, California and for that matter, about most of the world.

 

Several things you have to understand about St. Louis is that St. Louis City is NOT part of St. Louis County. Usually in America all cities are part of counties and some, like San Francisco are a combined City and County, St. Louis City is one of only two cities in the United States that aren’t part of a county. The other city with this status is Baltimore, Maryland.

 

The City of St. Louis is a Democratic Party controlled town. No Republican has represented any significant portion of the City since 1953 in the House of Representatives, as just one example. While in 1940 only 13% of the population was African American, as of 2010 the census showed it to be just under 50% black, 3 ½% Hispanic, and just under 3% Asian.

 

From Wikipedia:  German revolutionary, American statesman and reformer, U.S. Minister to Spain, Union Army General in the American Civil War, U. S. Senator, and Secretary of the Interior. He was also an accomplished journalist, newspaper editor and orator, who in 1869 became the first German-born American elected to the United States Senate.

From Wikipedia: German revolutionary, American statesman and reformer, U.S. Minister to Spain, Union Army General in the American Civil War, U. S. Senator, and Secretary of the Interior. He was also an accomplished journalist, newspaper editor and orator, who in 1869 became the first German-born American elected to the United States Senate.

St. Louis County on the other hand is around 70% white and about ¼ of the population is African American. It was a bastion of Confederate support in the civil war, as opposed to St. Louis City which even then had significant abolitionist sentiment amongst the German American immigrant population. Inspired by Karl Marx’s call to support the Union cause, three brigades of German Americans enlisted, one known as the Karl Marx Brigade and another named the Carl Schurz Brigade after their German American abolitionist U.S. Senator.

 

 

Jesse JamesIf you live in one of the old Confederate strongholds in Missouri you pronounce the state’s name “Missoura” and you’ll grow up officially taught that Jesse James was not an outlaw but a Confederate guerrilla that never surrendered and as such, a hero of the State of Missouri.

 

United States vs John Gipson

I could give you the long story or the short story, but frankly, the long story is best told orally by me over drinks as some of the ways that I investigated for the defense of John Gipson and his attorney, Roger Rosen, were pretty dramatic. This however will be the short narrative….cutting to the chase so to speak.

 

John Gipson was set up by the St. Louis Metropolitan (City) police. They got a snitch to convince this black heroin dealer called “Process” that John Gipson was setting him up for the police. Process called Gipson about the rumors he’d been hearing so John agreed to come over and clear things up.

 

Search WarrantThe police got a search warrant, ostensibly to raid Process’s apartment and then sat on it while staking out Process’s pad. When I read that in the police report that stuck out like a sore thumb because the late Chief Justice William H. Rehnquist once described search warrants as becoming “stale” if you don’t promptly serve them. The police waited to serve the warrant until conveniently, about a week after it was issued, John Gipson just happened to show up.

 

Just as John Gipson got into the apartment, a call comes in on Process’s answering machine yelling “John Gipson just set you up, John Gipson just set you up.” Then the police are breaking down the door. Process runs to a window and sets out on the window sill a pill container with capsules of heroin in it, trying to hide it, but it falls off the window sill (I had this on tape from surreptitiously recording a conversation with Process using a back-electret microphone concealed under my sweater).

 

FingerprintsThe police then slap Gipson around (confirmed along with the fact that the heroin wasn’t his–it belonged to Process, by a polygraph by a retired St. Louis police officer), arrest both him and Process and then, with 11 (eleven) police alleged eyewitnesses to the events, here’s what you’d have to believe after listening to all the testimony in court. One key point: the police had to have an explanation for why they didn’t attempt to get fingerprints off the plastic pill container since that would have conclusively shown whether Process had tossed the evidence or Gipson. I found the only honest fingerprint expert in Missouri who was willing to testify for the defense or for the prosecution, truthfully, Sgt. Jan Vassal of the Jefferson County Sheriff’s Office. Her testimony about how it should have been standard procedure to test for prints on a plastic container really put the Metropolitan cops between a rock and a hard place.

 

White JuryTaking all the police testimony and piecing it together, the United States Attorney (the local City prosecutors wouldn’t try to get a City jury to convict on this evidence because too many black people would have been on the jury) wanted the 11-1 white jury (with 70% of the jurors having police friends, relatives, and/or neighbors; the one black juror had a sheriff for a brother and two cousins on the Metropolitan Police Force) to believe was that:

 

1. Sgt Doumakes of St. Louis’ finest is right handed;
2. Sgt. Doumakes was holding his gun in his right hand pointed at the second-story apartment window where Process lived above a bail bond agency;
3. Within five seconds Sgt. Doumakes observed and did the following:
(a) Supposedly observed a black male open window up a few inches and put his hand out and toss or drop the plastic container with the heroin capsules in it;
(b) Supposedly observed Gipson open the window up far enough for him to put his head out, since it would have been problematic to identify one black male over another just from seeing a hand;
(c) While observing all this within the same five second period Sgt. Doumakes miraculously caught the plastic container with his left hand while continuing to hold his gun with his right hand aimed at the second story window!

 

Not even St. Louis Cardinal great Ozzie Smith could have made that catch....

Not even St. Louis Cardinal great Ozzie Smith could have made that catch….

As we later argued to the jury, not even Ozzie Smith of the St. Louis Cardinals could have made that catch.

 

In the meantime in between time, what do you think happened to the tape recording on Process’s answering machine that the police promptly seized during the raid. Supposedly, it was missing about fifteen minutes of recording and was supposedly blank where Gipson claimed he heard the guy calling and accusing him of setting up Process.

 

St. Louis Police Dept was too dumb to even tamper with evidence and not make it obvious that they had done so.

St. Louis Police Dept was too dumb to even tamper with evidence and not make it obvious that they had done so.

We never actually used this fact in the trial, but it was obvious as to why the tape was supposedly blank at that point. Instead of actually erasing the tape, the idiot cops turned the volume down completely and recorded over it, but all that did was re-record the background noise in what they thought was a quiet room. We brought it to a sound lab at a local radio station and boosted up the background noise to the point where we could clearly hear the police dispatcher taking and making dispatch calls.

 

The jury deliberated three days and came back with “NOT GUILTY” on all counts.

 

Civil LibertiesNow if the United States Department of Justice in St. Louis had been honest and committed to the Constitution of the United States of America, they’d have prosecuted the St. Louis Metropolitan police for Conspiracy to Violate Civil Rights, tampering with evidence, and perjury amongst other things. They might also have looked into the pattern of civil rights lawsuits I found against the officers in charge of the operation who been repeatedly sued for breaking into homes, shooting people, and all sorts of cash seemed to conveniently get reported as missing after the raids. It also seemed that the officers took turns each year vacationing in Hong Kong….Speculation: were they taking turns as bag men depositing stolen cash into numbered and secret Far Eastern accounts? Hmmmmmm!
None of these officers were ever called to account for their obvious frame up or any of their other civil rights violations.

 

So ask me if I’m surprised that Michael Brown was shot and everybody from a Ferguson State Senator to journalists have been tear gassed and/or man-handled and arrested by Missouri law enforcement…..I’m not surprised in the least.


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LinkedIn stats on Chicano/Hispanic/Mexican American/Puerto Rican Studies grads


 

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From 1973-79 I was a CSUN Mechista and still proud of it!

From 1973-79 I was a CSUN Mechista and still proud of it!

 

LinkedIn stats_001 LinkedIn stats_002 LinkedIn stats_003 LinkedIn stats_004 LinkedIn stats_005 LinkedIn stats_006


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