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FRANK CASTLE, a.k.a. THE PUNISHER, Plaintiff, v. INDEPENDENT ASSOCIATION OF SUPERHEROES, Defendant. / PLAINTIFF¶S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT The Plaintiff, Frank Castle (³The Punisher´), pursuant to Emp. R. Civ. P. 56(c), files this Motion for Summary Judgment against Defendant, Independent Association of Superheroes (³IAS´) and requests this Court grant summary judgment because there are no genuine issues of material fact and Castle is entitled to judgment as a matter of law. Summary judgment in Castle¶s favor is appropriate because Castle, as the Punisher, is a superhero and a member of the super community. Because Castle is a superhero, the statements made by the IAS President, Clint Barton, that Castle is a Supervillain or vigilante are defamatory as a matter of law. The Punisher is a Superhero. First, The Punisher has a pro-social mission fighting evil. Second, The Punisher has superpowers that are in the form of highly developed skills. Finally, The Punisher has an identity in the form of a codename and an iconic costume. CASE NO.: 2010-CV-999 DIVISION: CV-G
STATEMENT OF THE CASE AND FACTS The Punisher, formally known as Frank Castle, acts as a one-man army on crime. Fighting evil and injustice. The Punisher The Punisher could have become a Catholic Priest but instead
witnessed a Mafia gangland execution. because of their connections with the crime family. He is a combat veteran who has training as a sniper. LRRP (Long Range Recon Patrol) and airborne training with the U. He is an ex marine who served in Vietnam. UDT (Underwater Demolition Team). His desire is to not see average people become victims of crime and endure the same kind of loss he had to experience. The Punisher. Because they were witnesses. excessive strength and mental ability.decided to serve his Country. members of the Costa crime family murdered Castle¶s wife and his only two children. The Punisher is a defense for society because he also takes down Supervillains. He was able to identify all of the people involved in the murder of his wife and his two children.Q. and unique and sophisticated technology to take down organized crime like the Italian and Russian Mafia. The Punisher. a wife and two children. Frank Castle abandoned his name and took on a new identity. is black to allow him to use stealth to carry out justice. provide justice against evil. Army and U. Navy SEAL. Columbian and Mexican drug cartels. Navy Special Forces. the Japanese Yakuza. The Punisher has access to military grade weapons and espionage grade surveillance equipment.S. Castle survived. He has also occasionally used high tech transportation. However. does the job that the corrupted police officers could not do. Shortly after. U.S. uses his iconic costume. He is an Olympic level athlete and martial arts master who also has an exceptionally high I. Frank Castle and his family. He customizes his weapons for greater effectiveness making them unique.S. where he earned a Purple Heart. and corrupted cops. Now The Punisher. He has successfully taken down Comment [WU1]: making them unique 2 . the police were corrupt and did not arrest the mafia gang members. The bodysuit provides protection and. Although also shot. The Punisher wears a Kevlar full armor bodysuit with a big white skull painted on his chest.
During dinner. Barton. The Reavers and Bullseye. The Punisher never kills innocent people. In mid-speech Barton broke off and suddenly started addressing The Punisher. The Punisher while protecting society from evil and injustice accidently kills criminals. The Punisher attended the annual black tie gala hosted by the Independent Association of Superheroes (IAS). right in the line of sight of the current President of IAS. with 3 . because the event was open to all Superheroes. and the only personal benefit he receives from his heroic actions is justice. from evil. I¶m up here talking about all of the heroic deeds that we have done over the past year. has had conflicts with The Punisher. humanity. Clint Barton (a. Daredevil. The Punisher was sitting at a table ear the front of the room. Despite fighting for justice alone. not a Superhero. but he¶s really nothing better than a vigilante . but I just can¶t go on. sitting right in front of me is an example of the type of evil that we¶re trying to fight. The room became silent after the accusation made by Barton. I know The Punisher thinks of himself as a Superhero. . a Supervillain. And all the time. He has fought alongside and worked as a team with Spiderman. this country.a Hawkeye). who used to be a Supervillain.2011. .k. who put themselves in dangerous situations because of their evil wrongdoings. requiring The Punisher to walk. He has no right to be here.the Kingpin. He also protects society from Supervillains like Bushwacker. The innumerable times that we have saved this city. there is a table reserved for reporters from the various newspapers in the city. As a result. Barton made the following accusation: I¶m sorry. including minor run-ins with them as well. On December 16. it is traditional for the President of IAS to give a speech summarizing the major heroic events of the past year and present awards in a variety of different categories. The only exits were located all the way at the back of the room. he teams up with Superheroes as part of a Superhero collaboration to protect society from Supervillains.
at 323). LEXIS 10. January 12. because the accusation that Barton made was completely false. Poplin v. ³Hawkeye´ and a photograph of The Punisher. Supp. 2007). 286 F. the nonmovant. v. depositions. Inc. as well as national and international papers. at *7 (Emp.. The Punisher has sued the IAS for defamation. 322 (1986)). who were taking photos during the whole ordeal. ARGUMENT SUMMARY JUDGMENT IS PROPER BECAUSE THE UNDISPUTED EVIDENCE AND APPLICABLE LAW DEMONSTRATE THE PUNISHER IS A 4 . 2003)(citing Celotex Corp.S. Id. Catrett. 317.S. Spann Timber. After this embarrassing scene. and thus defamatory. 2d 1316. (citing Celotex. under Emp. Bestway Express. Both parties have filed Motions for Summary Judgment and this Memorandum addresses the issues raised by the competing motions. 477 U. to avoid summary judgment. 2007 Emp. SUMMARY JUDGMENT STANDARD Summary judgment. and admissions show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. included the statements by Barton.D. answers to interrogatories. ³Substantial evidence´ is of such ³weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved. No. 477 U. must present substantial evidence supporting the existence of a genuine issue of material fact. Civ. Once the moving party establishes a prima facie case showing summary judgment is proper. past all of his colleges and reporters. the front-page article in all of the local newspapers. 56(c).embarrassment. J. 1317 (M. Emp.F. 1051421. is proper only ³if pleadings. The next day. P.´ Hundley v. R.
Neither party disputes the accusations spoken by Clint Barton at the Black Tie Gala Event. POINT I THERE ARE NO GENUINE ISSUES OF MATERAL FACT PRECLUDING ENTRY OF SUMMARY JUDGMENT IN THE PUNISHER¶S FAVOR.SUPERHERO AND ANY STATEMENTS THAT HE IS A VIGILANTE OR SUPERVILLIAN ARE DEFAMATORY AS A MATTER OF LAW. it must first find that there is no genuine issue of material facts relating to the issue of law before the court. His codename. The Punisher has a mission in protecting humankind. The Punisher has superpowers in the form of highly developed skills. Neither party disputes that The Punisher has 5 . and does not work cross-purpose to society. The Punisher is a Superhero because he meets the statutory elements required to be a Superhero. First. and his Kevlar full bodysuit and painted white skull on his costume is unique from what ordinary humans similarly situated would wear. and his costume reflect his inner characteristics. there are no genuine issues of material facts. not motivated by wealth or power. This mission is pro-social. The statement made by IAS President Clint Barton that The Punisher was a vigilante or Supervillain is not true and thus is defamatory. The Punisher has an identity in the form of a codename and an iconic costume. Second. Summary Judgment in The Punisher¶s favor is proper because there are no genuine issues of material fact and The Punisher is entitled to judgment as a matter of law. because his activities are in the interest of society. Finally. In order for a court to grant summary judgment. and he has access to sophisticated technology that is beyond those available to the police and military. Neither party disputes that The Punisher no longer goes by Frank Castle. In the instant case. The Punisher. He has extensive strength and mental ability.
6 . while The Punisher was protecting society. the person or entity must have superpowers. as well as teaming up with Superheroes to fight Supervillains. Emp. No party disputes that he has never killed an innocent person however. SUPERPOWERS. It is agreed that The Punisher has access to sophisticated military weapons and surveillance equipment and he customizes the equipment for greater effectiveness beyond available to the military and police. § 497.ample amount of training in the military and martial arts. the person or entity must have a mission that is pro-social or antisocial. of 180. are defamatory as a matter of law. statements made to third parties that he is not a superhero. Stat. The Punisher concedes that criminals have been killed. Id. In order to be a member of the Super Community a person or entity must encompass three characteristics. and was an Olympic level athlete. The Punisher does not receive any financial benefit while fighting evil and injustice. Under a defamation claim.331 (2006). The Punisher wears a black Kevlar full body armor suit with a white skull painted on his chest. We concedes that he has had run-ins with a few Superheroes. First.Q. superpowers and an identity. Id. In addition. No party disputes that he fights Supervillains. A person is defamed if there are statements or communications made about that person to third parties that are offensive and untrue. POINT II THE PUNISHER IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON THE DEFAMATION CLAIM BECAUSE HE IS A SUPERHERO HAVING A PRO SOCIAL MISSION. as well as an exceptionally high I. the falsity of the defamatory words is presumed. AND AN IDENTITY. and corrupted cops by himself. Second. Because the Punisher is a superhero having a pro social mission. The burden is on the defendant to prove the truth of the statement. but a vigilante or Supervillain. criminals. There are no genuine issues of material fact precluding entry of summary judgment in The Punisher¶s favor. which can include extraordinary Comment [NT3]: Ditto with NT1 Comment [NT2]: Feel free to modify or change any parts that I have filled in so that it works best for your presentation.
Id. which consist of extensive physical strength. The Punisher¶s mission to protect humankind is pro-social. he is a defense for society against Supervillains. In order to have superpowers a person must have highly developed skills. § 123. Stat. because he had extensive physical strength [and] mental ability. 2d 672. 7 . 2004). The undisputed facts show The Punisher does meet all three elements to be a member of the Super Community and thus is a Superhero. ³[t]he court found that Batman had superpowers in the form of highly developed skills. The Punisher has superpowers because he has highly developed skills. In addition. mental ability. A Supervillain is a member of the Super Community who has an anti-social mission and can only be stopped by Superheroes. 1. First. Finally. 672 (Emp. A person has highly developed skills. In Joker. and thus superpowers when he has extensive physical strength.45 (2006). and sophisticated technology. The Punisher is a Superhero because he has superpowers in the way of highly developed skills. a person or entity must have an identity embodied in either a codename or iconic costume. Batman. § 123. Finally. Id.abilities or highly developed skills. or access to unusually sophisticated technology that is unique and performs functions beyond those available to the police and military. Second. Id. Emp. The Punisher has an identity because his codename and his costume reflect his inner character. A Superhero is a member of the Super Community who has a pro-social mission and is necessary to society because he or she is the only defense against Supervillains.45(b)(ii).´ Id. In addition. A Superhero that has extensive strength and mental ability has highly developed skills and thus superpowers. extensive mental ability. Joker v. 234 N. The Punisher¶s full Kevlar armor bodysuit is a costume that is different from the police and the white skull allows society to easily recognize him.
8 (Monkey Brain Books. 2d 521. and Bat Shark Repellant were sophisticated technology giving Batman superpowers in the form of highly developed skills. Based on these skills the court acknowledged Xena¶s superpowers. the court held that Batman¶s Batplane. In the instant case. Xena had superpowers solely based on her physical and mental acuity. punch through solid ice. Id. Similarly in the Interest of Eve. . 602 N. The Punisher¶s physical strength and mental abilities allow him to fight crime.´ Peter Coogan. although not a Superhero because of her lack of identity. Superhero The Secret Origin of a Genre 1. Id. like Batman. The court also noted her ³extensive fighting experience and the capacity to ignore significant physical pain.´ Joker.³[H]is physical strength and mental abilities allow him to fight crime . . 234 N. The court noted that ³Bat technology was unique and performed functions beyond those available to the police and military. 521.´ Id. He not only fights criminals by himself. The Punisher is an ex-marine who served in Vietnam.´ Id. Batmobile. 2d at 672. . but he fights Supervillains by himself as well. where he was 8 . Other Superheroes continue to ask The Punisher to team up with them to fight Supervillains that they themselves cannot take down with out his extensive strength and mental ability. In the Interest of Eve. In Joker. the court noted. Like Batman and Xena. and knock out opponents with a single punch. The Punisher has superpowers in the form of extensive physical strength and mental ability. Bat Utility Belt. 2006). had superpowers due to her ability to perform many feats that are outside of the normal range of human abilities including the abilities to arm-wrestle warlords. Xena. kick down doors. A person can also have superpowers in the form of highly developed skills when he or she has ³access to unusually sophisticated technology that is unique and performs functions beyond those available to the police and military. Id.
and thus has possesses superpowers. The Punisher must have extensive strength in order to possess these abilities. The Punisher has superpowers in the form of highly developed skills.Q. Navy Special Forces. therefore. an Olympic level athlete and has an exceptionally high I. UDT (Underwater Demolition Team). He is a combat veteran who has training as a sniper. In addition. Navy SEAL. The Punisher has access to the best military grade weaponry and espionage surveillance equipment. The Punisher also has high tech transportation. The Punisher has highly developed skills by using a unique and sophisticated technology beyond that available to police and military. The Punisher. however he was able to survive. The Punisher has not only extensive strength. Based on the foregoing. Similar to Xena. He was also shot when he witnessed his family being murdered. The Punisher is a martial arts master. 2. like Batman. because the access to this technology is considered highly developed skill. and mental ability but also sophisticated technology that is unique from the military and police and thus has superpowers.S.S. 9 . U. Army and U. 2d at 551. 602 N. LRRP (Long Range Recon Patrol) and airborne training with the U. Eve. who has extensive fighting experience.S. He then. and does not work at a cross-purpose to society. his technology becomes beyond that available to police and military.awarded the Purple Heart. has superpowers. With his customization. The Punisher is a Superhero because he has a pro-social mission to protect humankind that is necessary to society and in the interest of society and is not motivated by power or wealth. customizes this sophisticated technology for even greater effectiveness making it unique to him. The Punisher takes the best and most sophisticated technology that is known to the police and military and he makes it better. he makes it unique.
789 (Emp. Jones raised the ³Superhero Exception´ statute. 2d at 801. State v. 204 N. 2d at 267. The court reasoned her use of her superpowers for the sole purpose of doing a job and earning money did not create a mission sufficiently different from that of ordinary human beings doing the same job. his mission is in the interest of society and necessary to society. As a defense to the charges. 801 (Emp. In order to maintain a pro-social mission while protecting mankind. the person cannot be motivated by wealth or power. 2006). 2d 801. 267 (Emp. Id. Average v. Id. Catwoman. In Joker. a person must have a pro social mission § 123. Ct. Id. Catwoman. and he is not working at a cross-purposes to society. Jones. the court held that Batman had a pro-social mission of fighting crime that 10 . Jones. 2007). 102 N. State v. The court found Catwoman was not a Superhero because her actions were motivated by wealth. App. Id. 654 N.45(a). 654 N. a) To have a pro-social mission a person cannot be motivated to protect humankind for wealth or power. A mission must be different from that of ordinary human beings. In order to have a pro-social mission a person cannot be motivated by wealth or power. the court found Jones was not a Superhero.Dist. Similarly in Catwoman. 2006). Catwoman stole a priceless piece of artwork out of the boardroom to support her lavish lifestyle. Despite the fact that Jones had superpowers.In order to be a Superhero. Jones was found guilty of Burglary of first degree. Id. 2d 267. On the other hand. Batman. The charges resulted from Jones entering the offices of a local law firm in the middle of the night in order to obtain records to prove that the law firm was attempting to kill her client. A Superhero has a pro-social mission if his actions seek to protect humankind. Superman v. 102 N. 789 (Emp. 2d 789. Id. 987 N. 2006). 2d 789. Id. Greatman. because she did not have the requisite pro-social mission. In Jones.
Average. He uses his powers to fight criminals and Supervillains solely to provide justice. like Batman. A Superhero must protect humankind in the best interest of society at that time. In contrast. Id. a police officer and Jones¶ mission was motivated by wealth because they are paid to do their job. Joker sprayed Mr. 2d at 267. this incident happened immediately 11 . 2d at 789. 654 N. The Punisher¶s mission in protecting humankind. The Punisher witnessed the Costa crime family murder his wife and two children. which left him with permanent facial paralysis that was identical to The Joker¶s trademark grin. Id. 456(2). 2d at 789. in cold blood. Average in the face with a chemical. In the instant case.was motivated by the fact that his parents were murdered by criminals. in protecting humankind The Punisher is not motivated by receiving wealth or power. § 123. Further. 204 N. Jones. The Punisher¶s crime fighting is beyond that undertaken by an ordinary human. The only benefit he receives is the satisfaction of providing justice for society. Average. b) The Punisher¶s mission is necessary because he is used as a defense against Supervillains and his mission is in the interest of society . His family¶s murder motivated him to protect the average person and not see anyone become a victim of crime and endure the same kind of pain and loss he experienced.´ Average. in order to have a pro-social mission. Thus. is motivated by the fact that his entire family was murdered. After serving in Vietnam. In addition. In Average. the court reasoned that even though she had superpowers her mission was not sufficiently different from ordinary humans because she was at the time performing a job of a private detective for pay. The Punisher does not receive any financial benefits. Thus. 2d at 789. the court held her mission was not sufficiently different from those of an ordinary human being. 204 N. a Superhero must be used as a defense against Supervillains. Specifically in Jones. 204 N.
Id. These Superheroes work together for the greater good of society. Catwoman used the money to support her lavish lifestyle. c) The Punisher µs actions do not work at cross-purposes to society. Id. In Catwoman. ³In that confrontation. which proved that the company had knowingly tolerated shoddy maintenance on their oil pipelines. A pro-social mission cannot be accomplished by working at cross-purposes to society.´ Id. Id. during the break-in she also stole a priceless piece of artwork in the building. Catwoman stole documents from an oil company. The Punisher did what was in the best interest of society at that time. corrupted henchmen die while successfully taking down The Kingpin. Batman had captured The Joker but let him go in order to save a group of innocent bystanders. The Kingpin was more corruptive and caused a far greater risk to society than the single evil henchman. Other Superheroes needing The Punisher to help fight Supervillains shows he is necessary to society because he is the only defense against Supervillains. When other Superheroes cannot take down Supervillains alone. The court held that Catwoman¶s mission was anti-social and her actions 12 . Like Batman. Catwoman. from Joker¶s henchmen who were about to open fire on them. Id. A person claiming a traumatic life experience as a motivation for his mission has a prosocial mission if his actions benefit society. The Punisher observed an evil. In the instant case. It is a Superheroes duty to protect humankind and do what is in the best interest for society.after a confrontation between Batman and The Joker. which she sold for a large sum of money. even though a death occurred. they request colleges including The Punisher. he does not protect evil. However. 2d at 801. The Punisher protects innocent people. Id. The court held that Batman was not negligent in the performance of his Superhero duties. Id. His actions were in the best interest of society at that time. 102 N.
He not only protects humankind from Supervillains and criminals. The Punisher was able to identify to the police all of the people involved. The Punisher never intends to kill a criminal however. The Punisher has a codename and an iconic costume because they both describes his underlying character. by providing justice in the interest of society. some criminals die as a consequence of their evil activities. While bringing justice to society. but also from the corrupted police officers.did not fall within the Superhero Exception rule. § 123. This corruption in the police system turned The Punisher into a one-man army seeking justice and to end corruption. To be a member of the super community a person must have a codename or iconic costume. He is necessary to society. The Punisher is bringing justice to society even though a criminal is killed occasionally. because he is punishing injustice. The Punisher¶s mission is to protect humankind. thus his mission is pro social. stealing the painting. the police did not arrest the perpetrators because of their connections to the crime family. The court ruled while Catwoman did protect society by exposing the documents. her actions. The Punisher¶s actions (punishing evil) is in the interest of society and thus not cross-purpose. Unlike Catwoman. were cross-purpose to society. The Punisher does not work at a cross-purpose to society. After his family¶s horrific murder. and he does not work cross-purpose to society. his actions are not motivated by wealth and power. The Punisher never kills innocent people. Id. and his costume is unique from what ordinary humans similarly situated would wear. The Punisher acts as an aid to the judicial system. 3. However. The Punisher has helped bring about justice taking down the Italian and Russian Mafia. his actions are in the best interest of society. Id. and other gangs. A person has a codename when it is a reflection of the person¶s 13 .45(c). In the instant case.
and not just a title. After he witnessed his family¶s horrifying murder and watched the police not help bring justice. An iconic costume is one which is different from that which ordinary humans similarly situated would wear. supra at 4 (Stating that there is a connection of name to inner character for the identity in Superheroes). 2d at 789. In Eve. Id. The Punisher has a codename. Superman did have a codename. 2d at 551. The court held that ³[t]he codename ³Superman´ literally means the best that humankind can expect and is an externalization his inner character. Eve. 602 N. A person will have a super identity if he or she has an iconic costume which is different from what an ordinary human similarly situated would wear. Id. Her outfit did not set her apart from other warriors. or origins. 602 N. 602 N. in Eve. there are no ordinary humans who do similar activities as him. Id. ³[T]he court held that Superman¶s blue skintight acrobatic costume and ³S´ chevron constituted a costume. On the other hand. However. Eve. 987 N. Superman. Frank Castle. instead of an expression of her inner character. Id.´ Id. Superman¶s costume that he wore was different from ordinary humans who do activities as him. see also Coogan. power. Id. 2d at 551. biography. Eve. Xena did not have an iconic costume because she dressed in traditional warrior clothes. 2d at 789. ³Warrior Princess´ was merely a title that describes who Xena was. In the instant case. Id. His codename is a reflection of 14 . origins. biography. A person will have a codename when that name is a reflection of their underlying character. The Punisher abandoned his former name. the court found in Superman. 987 N. the court found that Xena ³the Warrior Princess´ was not a codename. 2d at 551. similar to other soldiers of her time. and ³The Punisher´ rose from the ashes to protect society from the criminals and the corrupted police that are a danger to society. or power.underlying character. because Superman is one of a kind. Superman.
The white skull painted on his suit. When fighting criminals on the street. In addition. With The Punisher. like Batman. society expects a person who will punish Supervillains. The Punisher¶s costume is different from what ordinary humans wear that perform similar activities. and corrupted cops. The Punisher wears a more protective armor because he also fights Supervillains. which allows him to use stealth. 15 . Bullets do not affect Superman. The Punisher¶s costume is black. Society is protected from evil when The Punisher is around. distinguishing him from the corrupted cops but instead revealing a Superhero who uses his powers to punish evil and protect society.his inner character. similar to Batman and Superman. This symbol is readily recognizable to society. symbolizes that he is going to bring justice against evil. performs activities that similar to a police officer. unlike a police officer who merely wears a bulletproof vest. The Punisher also has an iconic costume. White stands for justice and purity and the skull represents evil. who are more powerful than normal criminals. His codename is acceptable because it carries a sense of security and protection for society. The Punisher does not want the average person to suffer and experience the same kind of loss that he had to experience. criminals. he punishes those who harm society. This is The Punisher¶s sole purposes and mission. The Punisher has a symbol on his costume. Even though The Punisher¶s codename is sufficient for him to have an identity. He wears a black form fitting Kevlar bodysuit and a white skull painted on it. The Punisher not only fights criminals but also fights Supervillains. Thus. He needs a full body Kevlar because he fights crime on his own. Thus. but they do affect Batman and The Punisher. and thus his character. With Superman. The Punisher. The Punisher has a full body Kevlar suit. However. Society expects a person who punishes evil in order to protect society. he is a one man-army. society expects him to be super.
Gotham City.S. Suite C Gotham City. Murdoch & Nelson Law Firm Erik Woody Erik Woody.For these reasons. The Punisher respectfully requests this Court to grant it¶s Motion for Summary Judgment finding that the statements of the IAS President that The Punisher is a vigilante or Supervillain were false and was thus defamatory as a matter of law. CONCLUSION Based on the foregoing. Mail upon Erik Woody. Erik Woody Attorney 16 .: 123456 200 Financial Street. Esquire Empire Bar No. Suite A. thus he has an identity. The Punisher has a codename and an iconic costume. Esquire at 678 Wall Street. 2012. Empire 77665 (333) 456-0987 Telephone Attorneys for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Memorandum of Law in Support of its Cross Motion for Summary Judgment was served by U. Empire 77665 on this 24th day of February.
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