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Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply

Farah v Esquire Appeal - Doc 20 - 2013-03-17 - Farah Reply

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Published by Jack Ryan
03/27/2013

REPLY FILED [1427576] by Jerome Corsi, Joseph Farah, WND Books and WorldNetDaily.com to Response and RESPONSE FILED to Cross Motion [1424672-2],[1424672-3],[1424672-4](Reply to Response by Mail to Cross Motion due on 04/08/2013) [Service Date: 03/27/2013 by CM/ECF NDA] Pages: 1-10. [12-7055] (Klayman, Larry)
03/27/2013

REPLY FILED [1427576] by Jerome Corsi, Joseph Farah, WND Books and WorldNetDaily.com to Response and RESPONSE FILED to Cross Motion [1424672-2],[1424672-3],[1424672-4](Reply to Response by Mail to Cross Motion due on 04/08/2013) [Service Date: 03/27/2013 by CM/ECF NDA] Pages: 1-10. [12-7055] (Klayman, Larry)

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Categories:Types, Research
Published by: Jack Ryan on Apr 08, 2013
Copyright:Attribution Non-commercial

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IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUITJOSEPH FARAH, et. al
 Appellants,v.
ESQUIRE MAGAZINE, et. al.,
Appellees.
No. 12-7055APPELLANTS' REPLY IN SUPPORT OF MOTION TO STRIKE ANDOPPOSITION TO APPELLEES' CROSS MOTION FOR SANCTIONS
Appellees' retained a law firm that is very large, powerful, and in its ownestimation influential. But, however large and prestigious, the law firm shouldknow better than to not do a due diligence with its client and put forth misleadingand false information either to a lower court or this Court. Regrettably andegregiously, that is just what has occurred in this case. But rather than owning upto the falsity of the facts concerning the publication of the Blog Post at issue, predictably Appellees and their law firm spend most of its time attackingAppellants' lawyer -- using the age old defense that a "good offense is the bestdefense." As set forth in the attached affidavit, sworn to under oath, by JosephFarah, Chief Executive Officer of Appellants Worldnetdaily.com and WNDBooks, the offending Blog Post published by Appellees did not contain the alleged
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 1 of 12
 
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"tags" at issue or any other warning to the reader that it was satire or for that matter humor of any sort. In fact, the Blog Post, to this very day, is still available in printable form without the "tags." See Exhibit A -- Affidavit of Joseph Farah.That Appellants did not dwell on this falsity at the lower court level wassimply because they were confident that the district judge would not take itimproperly upon herself to weigh facts in deciding Appellees' 12(b)(6) of FederalRules of Civil Procedure ("FRCP") motion to dismiss, which requires the lower court to accept the facts pleaded in the complaint as true. But instead of doingwhat she was required to do, out of apparent bias and prejudice which resulted inher prejudgment of the case -- as fully explained in Appellants' briefs -- the district judge made a dispositive ruling before discovery could even proceed to prove or disprove either side's recitation of the operable material facts!
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 In this regard, Rule 10(e)(2) of the Federal Rules of Appellate Procedure("FRAP") provides clearly and unequivocally:(2) If anything material to either party is omitted from or misstated inthe record by error or accident, the omission or misstatement may becorrected and a supplemental record may be certified and forwarded:(C) by the court of appeals.
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The district court judge even ruled upon an issue which was not before her;whether President Barack Obama was born in the United States. (JA 351).This unmasked her prejudgment mindset towards Appellants who she derisivelyreferred to as "Birthers" in a condescending fashion.
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 2 of 12
 
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See also Colbert v. Potter,
471 F.3d 158 (D.C. Cir. 2006)(Allowing materialevidence to be submitted on appeal that was not submitted at the district courtunder FRAP 10(e)(2));
Shangold v. Walt Disney Co.
, 275 Fed. Appx. 72, 73 (2dCir. 2008)"Federal Rule of Appellate Procedure 10(e)(2) allows a court of appealsto consider evidence if it has been "omitted from or misstated in the record by error or accident"). As allowed by FRAP Rule 10(e)(2), Appellants are simply drawingattention to the errors in the record for the Court to consider and correct.Even assuming that the facts put forth by Appellees and their counsel areworthy of consideration concerning the Blog Post's publication, Appellants notonly refuted them but were entitled to discovery to determine the truth.Appellees and their counsel's disingenuous argument that because the falsityof their representations were not raised at the district court level, they are nowabsolved from scrutiny of these falsities at the appellate level, is simply another arrogant ruse. "The inherent power of a federal court to investigate whether a judgment was obtained by fraud, is beyond question."
Universal Oil Products Co.v. Root Refining Co.
, 328 U.S. 575, 580 (1946) citing
 
 Hazel-Atlas Co. v. Hartford- Empire Co.
, 322 U.S. 238 (1944). This Court has the inherent power to investigateall possible instances of fraud constituted upon the lower court and this court.Fraud upon the court "involve[s] an unconscionable plan or scheme which isdesigned to improperly influence the court in its decision."
 Pumphrey v. K.W.
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 3 of 12

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