UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

)DANIEL PARISI,

et al.

, ))Plaintiffs, ))v. ) No. 1:10-cv-00897-RJL)LAWRENCE W. SINCLAIR a/k/a “Larry )Sinclair”,

et al.

, ))Defendants. ))

MEMORANDUM IN SUPPORT OFPLAINTIFFS’ MOTION FOR DEFAULT JUDGMENTAGAINST DEFENDANT SINCLAIR PUBLISHING, INC.

Plaintiffs, Daniel Parisi, Whitehouse.com Inc., Whitehouse Network LLC, and WhiteHouse Communications Inc. (collectively referred to as “plaintiffs”), by counsel, files this replymemorandum in support of its motion for a default judgment against defendant SinclairPublishing, Inc. (“SPI”). No opposition to the motion was timely filed by SPI.

Defendant,Amazon.com, Inc. (“Amazon”) did file a response, but it presents no valid reason to deny therequested default judgment.

ARGUMENT

Amazon argues that a default judgment should not be entered against one defendant whenother defendants that have appeared remain and inconsistent results “will necessarily arise” from

Plaintiffs filed their motion for a default judgment on July 8, 2010. (Dkt. No. 24).Sinclair served a purported opposition on July 21, 2010 by email and mail. However, thedocument has not appeared on the Court’s docket and thus it was not timely filed. Local R. 7(b);Fed. R. Civ. P. 5(d)(1). In addition, Sinclair failed to sign the response, contrary to Fed. R. Civ.P. 11(a).

No party has questioned the relief sought in plaintiffs’ motion – an award of damages of $5 million, an accounting and imposition of a constructive trust as to SPI’s proceeds from thedefamatory statements and its ownership of any assets, including copyrights.

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- 2 -the default judgment. (Dkt. No. 30 at 2). However, this Court has discretion to enter a default judgment against less than all the defendants under Fed. R. Civ. P. 54(b).

See, e.g.

Curtiss-Wright Corp. v. General Electric Co.

, 446 U.S. 1, 8 (1980). Amazon’s reliance on

Whelan v. Abell

, 953 F.2d 663 (D.C. Cir. 1992), is misplaced. There, the District Court entered a default judgment against one defendant in a multiple defendant case. The non-defaulting defendantswent on to be successful in the litigation. The District Court then vacated the default judgmentbased on the ruling on the merits in favor of the other defendants. The D.C. Circuit reversed theDistrict Court’s order vacating the default judgment.

Id.

at 674-75. The Court of Appeals reliedon

Carter v. District of Columbia

, 795 F.2d 116 (D.C. Cir. 1986), which held that in casesinvolving multiple defendants, a default order that is inconsistent with a judgment on the meritsmust be set aside only when liability is truly

joint

– “that is, when the theory of recoveryrequires that all defendants be found liable if any one of them is liable – and when the relief sought can only be effective if judgment is granted against all.”

Whelan

, 953 F.2d at 674-75(discussing

Carter

).Here, joint liability is not at issue. While reserving all rights, particularly since there hasnot been any discovery, it does not appear that there is joint liability, such that if one defendanttortuously wronged plaintiffs, then all defendants would be liable.

Stiffarm v. Burlington

Rule 54(b) provides, in relevant part, that: “When an action presents more than oneclaim for relief – whether as a claim, counterclaim, crossclaim, or third-party claim – or whenmultiple parties are involved, the court may direct entry of a final judgment as to one or more,but fewer than all, claims or parties only if the court expressly determines that there is no justreason for delay.”

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- 3 -

Northern R. Co.

, 1996 U.S. App. LEXIS 8529, *10-11 (9th Cir. Apr. 1, 1996) (unpublished op.).Consequently, Amazon’s argument as to joint liability is misplaced.

Plaintiffs’ complaint alleges that some defendants may be

jointly and severally liable

.(Dkt. No. 1 ¶ 53). In

In re Uranium Antitrust Litig

., 617 F.2d 1248 (7th Cir. 1980), the plaintiff sued 29 foreign and domestic corporations for violating the antitrust laws. Plaintiff sought andobtained default judgments against nine defendants. The Court of Appeals held that default judgments against less than all of the defendants was not precluded where the alleged liabilitywas joint and several. The Court explained the difference between “joint” and “several”liability:Joint or common liability arises when a tortious act is committedby several persons acting in concert. It means that each tortfeasoris entirely responsible for the damage resulting from that concertedconduct. A successful plaintiff may look to any one of thedefendants for full satisfaction of a damage award. Several orindependent liability, on the other hand, arises when one defendantis found to have committed a tort without the aid of otherdefendants. A finding of liability as to one defendant is consistentwith a finding of no liability as to the others, so long as there is norelationship between the parties requiring vicarious liability.

. at 1257 (footnotes omitted). The Court went on to find that when the alleged liability is joint

and

several, granting a default judgment as to only some of the defendants is proper:If all twenty-nine of the defendants were found culpable of price-fixing, Westinghouse could seek to satisfy its judgment anddamages award against all the defendants, or single out one price-fixer. But at the same time, only a small group of the defendantsmight be found to have conspired to fix the price of uranium, andthe remaining defendants would be exonerated. Such a finding of liability as to nine defendants is not inconsistent with a finding of no liability as to the other twenty, because liability is potentially“several” as well as “joint”.

Plaintiffs do note, however, that SPI could be liable for the wrongful acts of its officer,Sinclair. That issue, however, does not prevent the Court from issuing a default judgmentagainst SPI.

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