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Response to Request for Disclosures

Response to Request for Disclosures

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Published by AdelmanAvi
Response to Request for Disclosures (served by Adelman on Lost Society/Rosales)
Response to Request for Disclosures (served by Adelman on Lost Society/Rosales)

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Published by: AdelmanAvi on Feb 07, 2011
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11/15/2011

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CAUSE NO. CC-10-08658-E FERNANDO ROSALES AND INITIATIVE PARTNERS, LLC, D/B/A LOST SOCIETY, § § § § Plaintiffs § § v. § § § AVI S. ADELMAN, BARKINGDOGS.

ORG, § AND DALLAS CREATIVE, INC., § § Defendants. § IN THE COUNTY COURT AT LAW

NO. 5

DALLAS COUNTY, TEXAS

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE

TO:

Plaintiffs Fernando Rosales and Initiative Partners, LLC, d/b/a Lost Society, by and through their attorney of record, Armando Miranda, 923 West Jefferson, Dallas, TX 75208 Defendants Avi S. Adelman, BarkingDogs.org (erroneously sued as BarkingDog.org),

and Dallas Creative (erroneously sued as Dallas Creative, Inc.) serve this Response to Plaintiffs Fernando Rosales and Initiative Partners, LLC, d/b/a Lost Society’s Requests for Disclosure made under Texas Rules of Civil Procedure 194.2.

DEFENDANTS’ RESPONSES TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE

Page 1

RESPONSES TO REQUESTS FOR DISCLOSURE (a) the correct names of the parties to the lawsuit;

RESPONSE: BarkingDog.org and Dallas Creative, Inc. are improper parties to this action. The correct parties are BarkingDogs.org and Dallas Creative. Avi S. Adelman is correctly named.

(b)

the name, address, and telephone number of any potential parties;

RESPONSE: Defendants are unaware of any potential parties at this time.

(c)

the legal theories and, in general, the factual bases of the responding party’s claims or defenses (the responding party need not marshal all evidence that may be offered at trial);

RESPONSE: Defendants have generally denied the Plaintiffs’ allegations. Defendants have also specially denied the allegations in Paragraph 5 of Plaintiffs’ First Amended Petition because Plaintiffs improperly named as defendants “Dallas Creative, Inc.” and “BarkingDog.org.” Additionally, Defendants have asserted the following affirmative defenses: 1. 2. 3. Plaintiffs’ Petition fails to state a claim upon which relief may be granted. Defendants did not publish any statements that were false about Plaintiffs. Defendants’ challenged articles and statements are protected and privileged under the First Amendment of the United States Constitution, the Texas Constitution, statutes, and common law. The statements and the news articles challenged by Plaintiffs are accurate accounts of observations made by third parties and/or accurate accounts of public and official records. The statements and news articles challenged by Plaintiffs are privileged and protected under Texas Civil Practice and Remedies Code § 73.002(b)(1) and similar common law privileges as fair, true, and impartial accounts of official proceedings, judicial proceedings, executive proceedings, and/or public meetings.

4.

5.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE

Page 2

6.

The statements and news articles challenged by Plaintiffs are privileged and protected under Texas Civil Practice and Remedies Code § 73.002(b)(2) and similar common law privileges as fair comments on and/or criticisms of official acts of public officials and/or on matters of public concern. Defendants’ statements and articles were privileged and justified, not wrongful or independently tortious, as required to recover for tortious interference with business relations. The statements and news articles by Plaintiffs contain statements of opinions and other statements that are not assertions of fact and are not actionable. The statements and news articles challenged by Plaintiffs are newsworthy and involve matters of public interest and concern. The statements and articles challenged by Plaintiffs consist of accurate reporting on matters of public interest. Plaintiff Rosales is a limited-purpose public figure who must prove actual malice by clear and convincing evidence to recover on any claim in this action. Defendants did not act with actual malice. Defendants acted without malice and/or without the requisite scienter in the constitutional, statutory, and common law senses in all of the alleged actions about which Plaintiffs complain. Plaintiffs’ intentional infliction of emotional distress claim is barred because there are other tort remedies in law potentially available to Plaintiffs. Plaintiffs’ intentional infliction of emotional distress claim fails because the complained-of conduct and statements by Defendants are not sufficiently outrageous. Plaintiffs’ own intentional and negligent conduct, and/or the conduct of others, caused the damages that Plaintiffs seek to recover from Defendants. Plaintiffs’ recovery is barred, in whole or in part, by the provisions of the comparative responsibility statutes of the State of Texas, including Chapter 33 of the Civil Practice & Remedies Code. Defendants did not proximately cause Plaintiffs’ alleged damages. There are other reports, public documents, public information, and public proceedings that proximately caused or contributed to Plaintiffs’ alleged damages. Pursuant to the Civil Practice and Remedies Code, any damages would be mitigated by the factors listed in §§ 73.003(a)(1) and (2) and (b).

7.

8. 9. 10. 11.

12.

13. 14.

15. 16.

17. 18. 19.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE

Page 3

20. 21. 22.

Plaintiffs have failed to mitigate their alleged damages. Plaintiffs’ alleged damages are speculative and uncertain. Plaintiffs cannot recover exemplary damages under applicable law. In addition, or in the alternative, Plaintiffs’ claims for punitive or exemplary damages are subject to the limitations and requirements of Chapter 41 of the Texas Civil Practice and Remedies Code. Any award of punitive or exemplary damages against Defendants would violate Defendants’ rights under the United States Constitution and Texas Constitution, including, but not limited to, the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. With respect to Plaintiffs’ demand for punitive or exemplary damages, Defendants specifically incorporate by reference any and all standards or limitations regarding the determination and enforceability of punitive or exemplary damages that appear in the following opinions, among others: State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of N. America v. Gore, 517 U.S. 559 (1996).

23.

24.

(d)

the amount and any method of calculating economic damages;

RESPONSE: Defendants do not believe that Plaintiffs suffered any economic damages, and Defendants are not seeking to recover economic damages in this lawsuit at this time.

(e)

the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case;

RESPONSE: Avi Adelman (Defendant) 5715 Belmont Ave. Dallas, TX 75206 214-923-3562 Fernando Rosales (Plaintiff) 2842 Fantail Dr. Mesquite, TX 75181 214-823-9600
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE Page 4

Brightman Nwatu Contact information unknown Plaintiffs’ former partner, co-owner, and/or employee Neil Ludwig General Manager, Service Bar and Sofrano’s 1919 Greenville Ave. Dallas, TX 75206 214-824-8599 Lower Greenville bar owner with knowledge of Plaintiffs’ reputation Richard Avila Owner, Mextopia 2104 Greenville Ave. Dallas, TX 75206 214-824-9400 Lower Greenville bar owner with knowledge of Plaintiffs’ reputation Cap Priggre Owner, Sugar Shack 1909 Greenville Ave. Dallas, TX 75206 214-826-4500 Lower Greenville bar owner with knowledge of Plaintiffs’ reputation Marc Andres Andres Properties 2800 N. Henderson Ave., Suite 200 Dallas, TX 75206 Plaintiffs’ landlord Roger Andres Andres Properties 2800 N. Henderson Ave., Suite 200 Dallas, TX 75206 Plaintiffs’ landlord Tameka Harris Open Records Coordinator, Texas Alcoholic Beverage Commission P.O. Box 13127 Austin, TX 78711 512-206-3333 Custodian of documents relevant to the Texas Alcoholic Beverage Commission’s investigation of Plaintiffs

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE

Page 5

Ericka Sanders Open Records Coordinator, City of Dallas 3112 Canton St. #102 Dallas, TX 75226 214-670-5708 Custodian of documents relevant to the City of Dallas’s and Dallas Police Department’s investigations of Plaintiffs Pursuant to Section 22.023(a)(2) of the Civil Practice and Remedies Code, Defendant Avi Adelman declines to provide the names of certain other persons having knowledge of relevant facts.

(f)

for any testifying expert: (1) the expert’s name, address, and telephone number; (2) the subject matter on which the expert will testify; (3) the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information; (4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party: (A) all document, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and (B) the expert’s current resume and bibliography;

RESPONSE: At this time, Defendants have not designated any testifying experts.

(g)

any discoverable indemnity and insuring agreements;

RESPONSE: At this time, Defendants do not believe there is applicable indemnity or insurance coverage for this case.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE

Page 6

(h)

any discoverable settlement agreements;

RESPONSE: None.

(i)

any discoverable witness statements;

RESPONSE: None.

(j)

in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills;

RESPONSE: Not applicable

(k)

in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of any authorization furnished by the requesting party.

RESPONSE: Not applicable

(l)

the name, address, and telephone number of any person who may be designated as a responsible third party.

RESPONSE: None at this time. Defendants reserve the right to designate responsible third parties pursuant to Texas Civil Practice and Remedies Code §33.004.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE

Page 7

Respectfully submitted, VINSON & ELKINS L.L.P.

____________________________________ Thomas S. Leatherbury State Bar No. 12095275 Lisa R. Helem State Bar No. 24072145 Tyler J. Bexley State Bar No. 24073923 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201-2975 Telephone: 214.220.7792 Facsimile: 214.999.7792 Counsel for Defendants Avi S. Adelman, BarkingDogs.org, and Dallas Creative

CERTIFICATE OF SERVICE I hereby certify that on February 4, 2011 a true and correct copy of Defendants’ Response to Plaintiffs’ Requests for Disclosure was served on the following counsel of record by certified mail, return receipt requested and electronic mail:

Armando Miranda 923 West Jefferson Dallas, TX 75208 E-Mail: armin1@swbell.net Attorney for Plaintiffs

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUESTS FOR DISCLOSURE

Page 8

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