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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
and corrupted cops. He customizes his weapons for greater effectiveness making them unique.decided to serve his Country. Shortly after. He is an Olympic level athlete and martial arts master who also has an exceptionally high I.S. The Punisher. UDT (Underwater Demolition Team). uses his iconic costume. His desire is to not see average people become victims of crime and endure the same kind of loss he had to experience. excessive strength and mental ability. The Punisher wears a Kevlar full armor bodysuit with a big white skull painted on his chest. Frank Castle and his family. Because they were witnesses. the police were corrupt and did not arrest the mafia gang members. U. and unique and sophisticated technology to take down organized crime like the Italian and Russian Mafia. Army and U. The Punisher is a defense for society because he also takes down Supervillains. The bodysuit provides protection and. Now The Punisher. Columbian and Mexican drug cartels.S. is black to allow him to use stealth to carry out justice. witnessed a Mafia gangland execution. Navy SEAL. members of the Costa crime family murdered Castle¶s wife and his only two children. a wife and two children. does the job that the corrupted police officers could not do. The Punisher. Castle survived.Q. the Japanese Yakuza. where he earned a Purple Heart. He has also occasionally used high tech transportation. He was able to identify all of the people involved in the murder of his wife and his two children. The Punisher has access to military grade weapons and espionage grade surveillance equipment. He is a combat veteran who has training as a sniper. He has successfully taken down Comment [WU1]: making them unique 2 . LRRP (Long Range Recon Patrol) and airborne training with the U. Frank Castle abandoned his name and took on a new identity. However. because of their connections with the crime family.S. Navy Special Forces. He is an ex marine who served in Vietnam. provide justice against evil. Although also shot.
right in the line of sight of the current President of IAS. The Punisher was sitting at a table ear the front of the room. And all the time.2011. Barton made the following accusation: I¶m sorry. not a Superhero. Barton. The Reavers and Bullseye. requiring The Punisher to walk. On December 16. including minor run-ins with them as well. Despite fighting for justice alone. a Supervillain. I¶m up here talking about all of the heroic deeds that we have done over the past year. with 3 . there is a table reserved for reporters from the various newspapers in the city. and the only personal benefit he receives from his heroic actions is justice. he teams up with Superheroes as part of a Superhero collaboration to protect society from Supervillains. who put themselves in dangerous situations because of their evil wrongdoings. humanity. The Punisher while protecting society from evil and injustice accidently kills criminals. Daredevil.k.the Kingpin. The Punisher never kills innocent people. During dinner. The only exits were located all the way at the back of the room. The innumerable times that we have saved this city. 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. Clint Barton (a. sitting right in front of me is an example of the type of evil that we¶re trying to fight. but I just can¶t go on. has had conflicts with The Punisher. I know The Punisher thinks of himself as a Superhero. because the event was open to all Superheroes. He has no right to be here. from evil. He also protects society from Supervillains like Bushwacker. The Punisher attended the annual black tie gala hosted by the Independent Association of Superheroes (IAS). but he¶s really nothing better than a vigilante . In mid-speech Barton broke off and suddenly started addressing The Punisher. who used to be a Supervillain. this country. As a result. He has fought alongside and worked as a team with Spiderman.a Hawkeye). . . The room became silent after the accusation made by Barton.
included the statements by Barton. 477 U. The next day. SUMMARY JUDGMENT STANDARD Summary judgment. Spann Timber. who were taking photos during the whole ordeal. at 323). Inc. Supp. as well as national and international papers. under Emp. 286 F. answers to interrogatories. at *7 (Emp. 2007). January 12. the front-page article in all of the local newspapers. Id.embarrassment. and thus defamatory. 2003)(citing Celotex Corp. ARGUMENT SUMMARY JUDGMENT IS PROPER BECAUSE THE UNDISPUTED EVIDENCE AND APPLICABLE LAW DEMONSTRATE THE PUNISHER IS A 4 . 1317 (M. 2d 1316.D. The Punisher has sued the IAS for defamation. Emp. because the accusation that Barton made was completely false. Bestway Express. 2007 Emp. 317. 56(c). is proper only ³if pleadings. Poplin v. P. the nonmovant. 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. After this embarrassing scene. Civ.S. R. 477 U. depositions. ³Hawkeye´ and a photograph of The Punisher. Catrett. (citing Celotex. to avoid 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. Both parties have filed Motions for Summary Judgment and this Memorandum addresses the issues raised by the competing motions.S. 322 (1986)). J.. LEXIS 10. 1051421.´ Hundley v. v. must present substantial evidence supporting the existence of a genuine issue of material fact. Once the moving party establishes a prima facie case showing summary judgment is proper. past all of his colleges and reporters. No.F.
The Punisher.SUPERHERO AND ANY STATEMENTS THAT HE IS A VIGILANTE OR SUPERVILLIAN ARE DEFAMATORY AS A MATTER OF LAW. The statement made by IAS President Clint Barton that The Punisher was a vigilante or Supervillain is not true and thus is defamatory. In order for a court to grant summary judgment. because his activities are in the interest of society. The Punisher has superpowers in the form of highly developed skills. He has extensive strength and mental ability. His codename. The Punisher has an identity in the form of a codename and an iconic costume. it must first find that there is no genuine issue of material facts relating to the issue of law before the court. Neither party disputes that The Punisher no longer goes by Frank Castle. not motivated by wealth or power. 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. and does not work cross-purpose to society. Finally. Neither party disputes that The Punisher has 5 . and his costume reflect his inner characteristics. First. The Punisher is a Superhero because he meets the statutory elements required to be a Superhero. POINT I THERE ARE NO GENUINE ISSUES OF MATERAL FACT PRECLUDING ENTRY OF SUMMARY JUDGMENT IN THE PUNISHER¶S FAVOR. In the instant case. there are no genuine issues of material facts. Neither party disputes the accusations spoken by Clint Barton at the Black Tie Gala Event. and he has access to sophisticated technology that is beyond those available to the police and military. The Punisher has a mission in protecting humankind. and his Kevlar full bodysuit and painted white skull on his costume is unique from what ordinary humans similarly situated would wear. This mission is pro-social.
6 . of 180. Id. while The Punisher was protecting society. 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. Stat. 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. 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. First. the falsity of the defamatory words is presumed. Under a defamation claim. Id. The Punisher concedes that criminals have been killed. No party disputes that he fights Supervillains. § 497. The burden is on the defendant to prove the truth of the statement. are defamatory as a matter of law. Second. Because the Punisher is a superhero having a pro social mission. as well as teaming up with Superheroes to fight Supervillains. In order to be a member of the Super Community a person or entity must encompass three characteristics. criminals. and corrupted cops by himself. superpowers and an identity. the person or entity must have a mission that is pro-social or antisocial. as well as an exceptionally high I.331 (2006). and was an Olympic level athlete.ample amount of training in the military and martial arts. There are no genuine issues of material fact precluding entry of summary judgment in The Punisher¶s favor. SUPERPOWERS. the person or entity must have superpowers. The Punisher wears a black Kevlar full body armor suit with a white skull painted on his chest. In addition. No party disputes that he has never killed an innocent person however. but a vigilante or Supervillain. The Punisher does not receive any financial benefit while fighting evil and injustice. statements made to third parties that he is not a superhero. We concedes that he has had run-ins with a few Superheroes. Emp. AND AN IDENTITY. A person is defamed if there are statements or communications made about that person to third parties that are offensive and untrue.Q.
672 (Emp. Id. and thus superpowers when he has extensive physical strength. First. A Supervillain is a member of the Super Community who has an anti-social mission and can only be stopped by Superheroes. Stat. 2004). Id. Emp. because he had extensive physical strength [and] mental ability. In order to have superpowers a person must have highly developed skills. a person or entity must have an identity embodied in either a codename or iconic costume. extensive mental ability. 1. A person has highly developed skills. which consist of extensive physical strength. 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. 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 (2006). The Punisher¶s mission to protect humankind is pro-social. mental ability. 7 . ³[t]he court found that Batman had superpowers in the form of highly developed skills. In Joker. The Punisher is a Superhero because he has superpowers in the way of highly developed skills. or access to unusually sophisticated technology that is unique and performs functions beyond those available to the police and military. A Superhero that has extensive strength and mental ability has highly developed skills and thus superpowers. In addition. In addition. he is a defense for society against Supervillains. Finally. Joker v. The Punisher has an identity because his codename and his costume reflect his inner character. 2d 672.abilities or highly developed skills. and sophisticated technology. Id. Finally.´ Id. The undisputed facts show The Punisher does meet all three elements to be a member of the Super Community and thus is a Superhero. § 123. 234 N. Batman. Second. § 123.45(b)(ii). The Punisher has superpowers because he has highly developed skills.
In the instant case. 602 N. The court noted that ³Bat technology was unique and performed functions beyond those available to the police and military. . where he was 8 . The court also noted her ³extensive fighting experience and the capacity to ignore significant physical pain. 234 N. but he fights Supervillains by himself as well. Superhero The Secret Origin of a Genre 1. 2006). Bat Utility Belt. The Punisher¶s physical strength and mental abilities allow him to fight crime. 2d at 672. 521. Similarly in the Interest of Eve. Based on these skills the court acknowledged Xena¶s superpowers. Id. Xena. 2d 521. Xena had superpowers solely based on her physical and mental acuity. .´ Peter Coogan. In Joker. . In the Interest of Eve. the court noted. kick down doors. like Batman. 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.³[H]is physical strength and mental abilities allow him to fight crime . and knock out opponents with a single punch. Batmobile.´ Id. He not only fights criminals by himself. The Punisher is an ex-marine who served in Vietnam. and Bat Shark Repellant were sophisticated technology giving Batman superpowers in the form of highly developed skills. Id.´ Joker. Like Batman and Xena. Id. 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. punch through solid ice. 8 (Monkey Brain Books. although not a Superhero because of her lack of identity.´ Id. The Punisher has superpowers in the form of extensive physical strength and mental ability. the court held that Batman¶s Batplane. 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.
Q. 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. like Batman. and does not work at a cross-purpose to society. LRRP (Long Range Recon Patrol) and airborne training with the U. The Punisher must have extensive strength in order to possess these abilities. The Punisher takes the best and most sophisticated technology that is known to the police and military and he makes it better.awarded the Purple Heart.S. 2. who has extensive fighting experience. however he was able to survive. The Punisher has superpowers in the form of highly developed skills. therefore. Navy Special Forces. In addition. UDT (Underwater Demolition Team). He is a combat veteran who has training as a sniper. Eve. 9 . and thus has possesses superpowers. Similar to Xena. customizes this sophisticated technology for even greater effectiveness making it unique to him. 602 N. 2d at 551. The Punisher has highly developed skills by using a unique and sophisticated technology beyond that available to police and military. his technology becomes beyond that available to police and military. The Punisher is a martial arts master. The Punisher. because the access to this technology is considered highly developed skill. The Punisher has not only extensive strength.S. He then. has superpowers. He was also shot when he witnessed his family being murdered. he makes it unique.S. an Olympic level athlete and has an exceptionally high I. U. Based on the foregoing. Navy SEAL. The Punisher has access to the best military grade weaponry and espionage surveillance equipment. Army and U. The Punisher also has high tech transportation. and mental ability but also sophisticated technology that is unique from the military and police and thus has superpowers. With his customization.
In order to maintain a pro-social mission while protecting mankind. In Jones. 267 (Emp. State v. 2007). State v. Id. 654 N. 2006). his mission is in the interest of society and necessary to society. 2d 789. Jones. 2d at 267. 789 (Emp. Despite the fact that Jones had superpowers. 2d at 801. a) To have a pro-social mission a person cannot be motivated to protect humankind for wealth or power. In Joker. Batman.Dist. Catwoman stole a priceless piece of artwork out of the boardroom to support her lavish lifestyle. 789 (Emp. Id. As a defense to the charges. Jones.45(a). On the other hand. Average v. 654 N. 2d 801. 2d 789. Id. the court found Jones was not a Superhero. A mission must be different from that of ordinary human beings. 204 N. App. Catwoman. Id. because she did not have the requisite pro-social mission. In order to have a pro-social mission a person cannot be motivated by wealth or power. A Superhero has a pro-social mission if his actions seek to protect humankind. 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. 2006). The court found Catwoman was not a Superhero because her actions were motivated by wealth. 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. a person must have a pro social mission § 123. Superman v. Jones raised the ³Superhero Exception´ statute. Greatman. 2006). Ct. Id. and he is not working at a cross-purposes to society. the court held that Batman had a pro-social mission of fighting crime that 10 . 2d 267. Catwoman. 987 N. Jones was found guilty of Burglary of first degree. 102 N. 801 (Emp. Similarly in Catwoman.In order to be a Superhero. Id. Id. 102 N. the person cannot be motivated by wealth or power.
2d at 789. 204 N. in order to have a pro-social mission.´ Average. a Superhero must be used as a defense against Supervillains. 2d at 789. a police officer and Jones¶ mission was motivated by wealth because they are paid to do their job. 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. Average in the face with a chemical. In contrast. Specifically in Jones. The Punisher witnessed the Costa crime family murder his wife and two children. Average. Jones. 456(2).was motivated by the fact that his parents were murdered by criminals. In addition. 2d at 789. Further. is motivated by the fact that his entire family was murdered. Thus. In Average. Id. He uses his powers to fight criminals and Supervillains solely to provide justice. 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. in protecting humankind The Punisher is not motivated by receiving wealth or power. 2d at 267. § 123. like Batman. 654 N. Thus. Average. The Punisher¶s mission in protecting humankind. A Superhero must protect humankind in the best interest of society at that time. in cold blood. this incident happened immediately 11 . The Punisher¶s crime fighting is beyond that undertaken by an ordinary human. 204 N. 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 . 204 N. In the instant case. Id. The only benefit he receives is the satisfaction of providing justice for society. which left him with permanent facial paralysis that was identical to The Joker¶s trademark grin. the court held her mission was not sufficiently different from those of an ordinary human being. Joker sprayed Mr. The Punisher does not receive any financial benefits. After serving in Vietnam.
Other Superheroes needing The Punisher to help fight Supervillains shows he is necessary to society because he is the only defense against Supervillains. from Joker¶s henchmen who were about to open fire on them. The Punisher protects innocent people. Like Batman. 102 N. Catwoman used the money to support her lavish lifestyle. Id. he does not protect evil. Catwoman stole documents from an oil company. Batman had captured The Joker but let him go in order to save a group of innocent bystanders. When other Superheroes cannot take down Supervillains alone. they request colleges including The Punisher. ³In that confrontation. In Catwoman. His actions were in the best interest of society at that time. Id. which she sold for a large sum of money. The court held that Catwoman¶s mission was anti-social and her actions 12 . Id. In the instant case. even though a death occurred. A pro-social mission cannot be accomplished by working at cross-purposes to society. during the break-in she also stole a priceless piece of artwork in the building. The court held that Batman was not negligent in the performance of his Superhero duties. It is a Superheroes duty to protect humankind and do what is in the best interest for society. c) The Punisher µs actions do not work at cross-purposes to society. Id. 2d at 801. A person claiming a traumatic life experience as a motivation for his mission has a prosocial mission if his actions benefit society.after a confrontation between Batman and The Joker. The Kingpin was more corruptive and caused a far greater risk to society than the single evil henchman. corrupted henchmen die while successfully taking down The Kingpin. The Punisher observed an evil. Id.´ Id. However. The Punisher did what was in the best interest of society at that time. Id. which proved that the company had knowingly tolerated shoddy maintenance on their oil pipelines. These Superheroes work together for the greater good of society. Catwoman.
The Punisher acts as an aid to the judicial system. his actions are not motivated by wealth and power. The Punisher¶s actions (punishing evil) is in the interest of society and thus not cross-purpose. thus his mission is pro social. He not only protects humankind from Supervillains and criminals. but also from the corrupted police officers. The Punisher has helped bring about justice taking down the Italian and Russian Mafia. were cross-purpose to society. and other gangs. The Punisher does not work at a cross-purpose to society. her actions. To be a member of the super community a person must have a codename or iconic costume. some criminals die as a consequence of their evil activities. While bringing justice to society. The Punisher has a codename and an iconic costume because they both describes his underlying character. stealing the painting. The Punisher was able to identify to the police all of the people involved. However. The court ruled while Catwoman did protect society by exposing the documents. Id.45(c). In the instant case. He is necessary to society. and his costume is unique from what ordinary humans similarly situated would wear. The Punisher never intends to kill a criminal however. A person has a codename when it is a reflection of the person¶s 13 . 3. his actions are in the best interest of society. by providing justice in the interest of society. the police did not arrest the perpetrators because of their connections to the crime family. The Punisher never kills innocent people. After his family¶s horrific murder.did not fall within the Superhero Exception rule. because he is punishing injustice. Id. The Punisher is bringing justice to society even though a criminal is killed occasionally. Unlike Catwoman. The Punisher¶s mission is to protect humankind. § 123. and he does not work cross-purpose to society. This corruption in the police system turned The Punisher into a one-man army seeking justice and to end corruption.
After he witnessed his family¶s horrifying murder and watched the police not help bring justice. Id. in Eve. A person will have a codename when that name is a reflection of their underlying character. 2d at 789. 602 N. biography. because Superman is one of a kind. ³Warrior Princess´ was merely a title that describes who Xena was. and ³The Punisher´ rose from the ashes to protect society from the criminals and the corrupted police that are a danger to society. the court found that Xena ³the Warrior Princess´ was not a codename. In the instant case. 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. similar to other soldiers of her time. 2d at 789. An iconic costume is one which is different from that which ordinary humans similarly situated would wear. Superman. supra at 4 (Stating that there is a connection of name to inner character for the identity in Superheroes). 2d at 551. On the other hand. there are no ordinary humans who do similar activities as him. Id. 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. Eve. the court found in Superman. Superman did have a codename. However. instead of an expression of her inner character. Xena did not have an iconic costume because she dressed in traditional warrior clothes. In Eve. Id. His codename is a reflection of 14 . and not just a title. Superman¶s costume that he wore was different from ordinary humans who do activities as him. ³[T]he court held that Superman¶s blue skintight acrobatic costume and ³S´ chevron constituted a costume. 987 N.´ Id. 2d at 551. 987 N. The Punisher abandoned his former name. biography. Frank Castle. 602 N. Id. Her outfit did not set her apart from other warriors. Id. Id. origins. 2d at 551. or power. Superman. see also Coogan. The Punisher has a codename. Eve. or origins. 602 N.underlying character. power.
The Punisher also has an iconic costume. criminals. However. and corrupted cops. like Batman. The Punisher wears a more protective armor because he also fights Supervillains. he is a one man-army. which allows him to use stealth. Thus. similar to Batman and Superman. Society expects a person who punishes evil in order to protect society. but they do affect Batman and The Punisher. The Punisher. Society is protected from evil when The Punisher is around. he punishes those who harm society. Bullets do not affect Superman. distinguishing him from the corrupted cops but instead revealing a Superhero who uses his powers to punish evil and protect society. The Punisher does not want the average person to suffer and experience the same kind of loss that he had to experience. society expects a person who will punish Supervillains. This is The Punisher¶s sole purposes and mission. performs activities that similar to a police officer. and thus his character. The white skull painted on his suit. The Punisher¶s costume is different from what ordinary humans wear that perform similar activities. This symbol is readily recognizable to society. The Punisher not only fights criminals but also fights Supervillains. Thus. He needs a full body Kevlar because he fights crime on his own. In addition. 15 . His codename is acceptable because it carries a sense of security and protection for society. who are more powerful than normal criminals. When fighting criminals on the street. The Punisher has a full body Kevlar suit. With The Punisher. society expects him to be super. Even though The Punisher¶s codename is sufficient for him to have an identity. symbolizes that he is going to bring justice against evil. He wears a black form fitting Kevlar bodysuit and a white skull painted on it. unlike a police officer who merely wears a bulletproof vest. White stands for justice and purity and the skull represents evil. With Superman. The Punisher has a symbol on his costume.his inner character. The Punisher¶s costume is black.
Erik Woody Attorney 16 .: 123456 200 Financial Street. The Punisher has a codename and an iconic costume. Suite A. Empire 77665 on this 24th day of February. 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. CONCLUSION Based on the foregoing. Esquire Empire Bar No. thus he has an identity. Esquire at 678 Wall Street.S. Murdoch & Nelson Law Firm Erik Woody Erik Woody. 2012. Gotham City. Mail upon Erik Woody. 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. Suite C Gotham City.For these reasons.
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