Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
2Activity
0 of .
Results for:
No results containing your search query
P. 1
DKT-97-BN-Opposition-to-MTD

DKT-97-BN-Opposition-to-MTD

Ratings: (0)|Views: 765|Likes:
Published by meesh6927341

More info:

Published by: meesh6927341 on Feb 11, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

02/11/2011

pdf

text

original

 
 
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
DANIEL PARISI, WHITEHOUSE.COM INC.,WHITEHOUSE NETWORK LLC ANDWHITEHOUSE COMMUNICATIONS INC.,
Plaintiffs,
v.LAWRENCE W. SINCLAIR A/K/A “LARRYSINCLAIR”, JEFFREY RENSE, BARNES &NOBLE, INC., BARNESANDNOBLE.COMLLC, AMAZON.COM, INC., BOOKS-A-MILLION, INC. and SINCLAIR PUBLISHING,INC.,
 Defendants
.))))))))))))))))Case No.: 1:10-cv-00897 (RJL)
DEFENDANTS BARNES & NOBLE, INC. AND BARNESANDNOBLE.COM LLC’SMEMORANDUM OF LAW IN OPPOSITION TO LAWRENCE W. SINCLAIR’SMOTION TO DISMISS THEIR CROSS-CLAIMS AGAINST SINCLAIRAND SINCLAIR PUBLISHING, INC.
On January 28, 2011, Defendant Lawrence Sinclair (“Sinclair”) submitted a motion todismiss the complaint or in the alternative for summary judgment (“Sinclair’s Motion”).Sinclair’s Motion principally seeks dismissal of Plaintiff Parisi’s libel and related claimsagainst Sinclair and Sinclair Publishing, Inc. Barnes & Noble, Inc. and barnesandnoble.comllc (collectively “Barnes & Noble”) support Sinclair’s efforts to seek early resolution of Plaintiffs’ claims. However, Sinclair’s motion also requests that, if the Court dismissesPlaintiffs’ claims against Sinclair and/or Sinclair Publishing, that it also dismiss Barnes &Noble’s cross-claims for indemnity and contribution against Sinclair and Sinclair Publishing,Inc. as moot. Barnes & Noble submits this memorandum for the limited purpose of opposingdismissal of its cross-claims.
Case 1:10-cv-00897-RJL Document 97 Filed 02/10/11 Page 1 of 7
 
2
FACTUAL BACKGROUND
The Plaintiffs in this action contend they were defamed by the book 
 Barack Obama & Larry Sinclair: Cocaine, Sex, Lies & Murder?
(the “Book”). In addition to suing the authorSinclair and the publisher Sinclair Publishing, Inc. (collectively, the “Sinclair Defendants”),Plaintiffs also have named as defendants several booksellers, including Barnes & Noble.Plaintiffs have sued Barnes & Noble under a “distribution plus” theory for both distributing theBook and “the affirmative act of publi[shing]” certain allegedly false statements onbarnesandnoble.com on its display page for the Book under the headings “From the Publisher”and “Synopsis.” (Cplt ¶ 39.) As he has confirmed, Sinclair wrote the contested website copy.(
See
Affidavit of Lawrence W. Sinclair, sworn to Nov. 15, 2010, ¶ 2 [Doc. No. 83].)By letter dated June 8, 2010, Sinclair and Sinclair Publishing, Inc. agreed to indemnifyBarnes & Noble with respect to the Book and this action (the “June 8, 2010 Indemnity”). Theindemnity reads as follows:Lawrence W. Sinclair and Sinclair Publishing, Inc. hereby agree to jointly and severally indemnify and hold harmless Barnes &Noble, Inc. and Barnesandnoble.com LLC (collectively, "Barnes &Noble") from and against any and all claims, causes of action,liabilities, losses, damages, penalties, assessments, judgments,awards or costs, including reasonable attorneys' fees and costs, andincluding any amounts paid by Barnes & Noble in a settlementapproved by Lawrence W. Sinclair and/or Sinclair Publishing, Inc.("Claims"), arising out of, resulting from, or relating to, the book entitled
 Barack Obama & Larry Sinclair: Cocaine, Sex, Lies and  Murder,
authored by Lawrence W. Sinclair and published bySinclair Publishing, Inc. (the "Book"), including, but not limited to,any Claims arising out of the lawsuit captioned
Parisi et a/, v. Lawrence W. Sinclair a/k/a "Larry Sinclair" et al.,
Index No. l:10-cv-00897 (D.D.C.) (Leon, J.).Lawrence W. Sinclair and Sinclair Publishing, Inc. agree thatBarnes & Noble shall have the right to defend the Claims bycounsel of its own choosing under the terms of this indemnificationagreement. Lawrence W. Sinclair and Sinclair Publishing, Inc.further agree that they will pay Barnes & Noble any sums due
Case 1:10-cv-00897-RJL Document 97 Filed 02/10/11 Page 2 of 7
 
3under this indemnity within 60 days of receipt of each bill for legalfees or costs, or of any court order or other applicable document.
See
June 8, 2010 Indemnity, Barnes & Noble Answer, Doc. No. 42, Ex. 2.Barnes & Noble filed its answer on August 24, 2010, and asserted cross-claims forindemnification and contribution against the Sinclair Defendants under both the June 8, 2010Indemnity, and statutory and common law. [Doc. No. 42, ¶¶ 122-155.]On January 28, 2011, Sinclair filed the instant motion to dismiss or, in the alternative, forsummary judgment, seeking dismissal of all claims that Plaintiffs have asserted against Sinclairin his role as the author and publisher of the Book. Sinclair argues that the alleged claimsagainst him are not plausible because the allegedly defamatory statements in the Book aresubstantively true, Plaintiff cannot prove that Sinclair acted with actual malice, and Plaintiff cannot prove required damages. In his motion, Sinclair further requested that, should the Courtdismiss the claims against the Sinclair Defendants, the Court also dismiss Barnes & Noble’scross-claims for indemnification and contribution as moot. [
See
Doc. No. 94-1 at 25-26.]Sinclair’s motion does not seek dismissal of the claims that Plaintiffs have assertedagainst Barnes & Noble related to either distribution of the Book or the copy posted on Barnes &Noble’s website.
ARGUMENT
Contrary to Sinclair’s contention, Barnes & Noble’s potential claims for indemnity andcontribution against him will not be moot should the Court decide to dismiss the Plaintiff’sclaims against the Sinclair Defendants. As such, Barnes & Noble respectfully requests thatSinclair’s request for dismissal of those cross-claims be denied.Under the terms of the June 8, 2010 Indemnity, Barnes & Noble has a broad right to seek indemnification from both Sinclair and Sinclair Publishing LLC with respect to any and all
Case 1:10-cv-00897-RJL Document 97 Filed 02/10/11 Page 3 of 7

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->