21 22 23 24 25 26 LAW OFFICES OF PAUL WEICH Paul M. Weich (#014089) 2234 South McClintock Drive Tempe, Arizona 85282 (480) 759-1983 Attorneys for all Defendants EXCEPT A Medium Corporation SUPERIOR COURT OF THE STATE OF ARIZONA MARICOPA COUNTY JACOB GITMAN, an individual, Case No.1 CV2019-009187 Plaintiff, MOTION TO DISMISS VS. PATRICK SIMPSON, editor and writer for Sternfacts; MORNINGSIDE MORTGAGE, (Assigned to Honorable Mike Kemp an inactive Florida corporation; A MEDIUM CORPORATION, a California (Oral Argument Requested} foreign corporation; GRANT S. STERN, President of Sternfacts; RICHARD E. SRAGOWICZ, Vice President of Stemfacts; THESTERNFACTSCOM, in rem, Defendants. The unverified Complaint (?Complaint") ?led in this matter by Plaintiff Jacob Gitman asserts claims for defamation based upon vague, self-serving and conclusory allegations about an article that was carefully investigated and reported, in which. Plaintiff is also baldly asserting the clearly incorrect belief that the article was directed to Arizona in an effort to interfere with business interests in Arizona that Defendants were completely unaware of. MOTION TO DISMISS - All Defendants EXCEPT for A Medium Corporation, by and through undersigned counsel, hereby moves this Court dismiss the Plaintiff?s Complaint, pursuant to Rule 12(b), Ariz.R.Civ.P. This Complaint fails for a wide variety of reasons, including a lack of personal jurisdiction (Rule improper venue (Rule 12(b)(3) and failure to state a claim upon which relief can be granted (Rule In addition, this Complaint has its entire basis in statements that Plaintiff knows to be substantially true, Plaintiff brought this unjusti?ed action ?without substantial justi?cation? and ?solely or primarily for delay or harassment?, and moving Defendants are entitled to an award of reasonable attorney fees, expenses and double damages, pursuant to A.R.S. ?l2?349. DISCUSSION 1. Dismissal for Lack of Personal Jurisdiction - Rule 12(b)(2) This Complaint must be dismissed as to all moving Defendants because this Court does not have personal jurisdiction as to the Defendants. Plaintiff?s Complaint apparently is alleging that jurisdiction in Arizona courts is appropriate pursuant to Arizona?s long-arm jurisdiction. Rule 4.2, Ariz.R.Civ.P. However, for such an assertion to survive, individuals must have ?fair warning? that the article might subject them to an action in an Arizona court. There are no allegations in the Complaint that support such an exercise of personal jurisdiction. As acknowledged in the Complaint, the article in question was posted in March 2019. Nowhere does the article even mention Arizona, let alone alleging any possible ties between the Plaintiff and the Grand Canyon State. Further, Plaintiff is bringing this action as an individual and not as one of his many corporate entities. His Complaint does not assert that MOTION TO DISMISS - 2 resides in Arizona. Defendants could not have possibly known that Jacob Gitman might have some business interest in Arizona. The well-known International Shoe doctrine is that long-arm jurisdiction cannot be asserted if it offends "traditional notions of fair play and substantial justice? and thus violates the Due Process Clause of the 14th Amendment of the US. Constitution. In subsequent decisions, the Supreme Court elaborated that the defendant must have ?fair warning? that its activity may subject it to jurisdiction and that that ?purposefully directing? its actions towards a state would constitute that fair warning. (International Shoe Co. v. Washington, 326 US. 310 (1945); Slici?er v. Heirner, 433 U.S. 186, 218 (1977); Keeron v. Hustler Magazine, Inc, 465 US. 770 (1984)) In the context of an article on the internet, that passive activity is also insufficient to constitute purposeful activity. It "would not comport with traditional notions of what quali?es as purposeful activity,? said the court in Cybersell, Inc. v. Cyberseil, Inn, 130 F.3d 414, 419 (9th Cir.1997) (interpreting Arizona law). And, in Rollin v. William V. Frankel 6: Co, Inc. 996 P.2d 1254, 196 Aria. 350 (Ariz. App, 2000), the Court suggested that the plaintiffs could only establish that it was foreseeable that the intemet activity would wind up in front of Arizona eyeballs; ?but ?foreseeability? alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause." 996 P.2d at 1260 (quoting World- Wide Volkswagen v. Woodson, 444 US. 286, 295, 100 559, 566 (1980)). Finally, the Arizona Supreme Court recently boiled down the purposeful activity cases into this uniform question: ?Considering all of the contacts between the defendants and the forum state, did those defendants engage in purposeful conduct for which they could MOTION TO DISMISS - 3 reasonably expect to be haled into that state's courts with respect to that conduct? If such minimum contacts exist, the defendant can fairly be expected to respond to all claims arising out of those contacts, whatever the plaintiff?s theory of recovery.? Planning Group of Scottsdale, LL. C. Lake Mathews Mineral Props, Ltd, 224 Ariz. 306, 311, 230 P.3d 365, 370 (Ct. App. 2010) The Complaint insinuates that Defendants were targeting Plaintiff?s ?aluminum plant in Arizona.? There is no such mention or even implication in the article. The article is clearly not written to have an impact on Mr. Gitman or any of his possible future activities; it is clearly written with an on already-established facts and connections with the United States government. And remember that in March 2019, there was not even any public information available about Plaintiff?s investment in an aluminum plant that may or may not be built elsewhere in Arizona. Nothing was purposefully directed at Arizona, and this Complaint must be dismissed for lack of personal jurisdiction. 11. Dismissal for Improper Venue Rule forum non eonveniens A. Statutog: Bases For Dismissal. Neither Plaintiff nor any of the Defendants reside in Arizona, and none of the events alleged in the Complaint took place in Arizona. Despite the Complaint?s bald assertion that venue is appropriate in Marieopa County Superior Court, there is no basis for that assertion and this Complaint must be dismissed, pursuant to Rule Ariz.R.Civ.P. Additionally, moving Defendants assert that this Complaint must be dismissed andrr or transferred to an appropriate court elsewhere. (Most likely in Florida.) Plaintiff Gitman lives in Florida. Defendant Morningside Mortgage, which is an active corporation, is domiciled in Florida. The corporation was administratively inactive, but MOTION TO DISMISS 4 once the reinstatement form was filed, Florida law determines that it was as if there was no lapse. Attached hereto as Exhibit A and incorporated herein, is the corporation?s Reinstatement and current status. Defendants Stern and Sragowicz also reside in Florida. While Defendant Simpson resides elsewhere, he published the article on a website nominally based in Florida. Plaintiff Gitman does NOT own any property in Maricopa County (and it is unlikely that he owns any property elsewhere in Arizona). Plaintiff references an aluminum plant in Arizona; however, he is not listed with the Arizona Corporation Commission as one of the owners of Alliance Metals. The Complaint properly cites A.R.S. ?12-401 as the statute for venue. However, the Complaint lists subsections (1), (10), and (18) as the multiple bases for venue being in this court. None apply here. Subsection (1) states ?When a defendant or all of several defendants reside without the state or their residence is unknown. the action may be brought in the county in which the plaintiff resides.? That would permit the action to be brought in Maricopa County IF it is where ?the plaintiff resides." As established by the Complaint itself, the plaintiff does not reside in Maricopa County. The plaintiff does not even reside in Arizona. Subsection (10) states that ?When the foundation of the action is a crime, offense or trespass for which an action in damages may lie, the action may be brought in the county in which the crime, offense or trespass was committed or in the county in which the defendant or any of the several defendants reside or may be found, but any action for damages against the editor, proprietor or publisher of a newspaper or periodical published in the state for publication of an alleged libelous statement shall be brought in the county in which the principal publication office of the newspaper or periodical is located or in the county where the plaintiff resided at the time of publication of such statement.? This subsection is inapplicable because the alleged action MOTION TO DISMISS - 5 23 ?24 25 26 was neither ?committed? in Maricopa County (or, Arizona) and none of the defendants may be found in Maricopa County. Subsection (18) is equally inapplicable. It states that ?Actions against railroad companies, insurance companies, telegraph or telephone companies, joint stock companies and other corporations may be brought in any county in which the cause of action, or a part thereof, arose, or in the county in which defendant has an agent or representative, owns property or conducts any business.? No part of the purported cause of action arose in Maricopa County, and no part of the business is conducted in Maricopa County. It is possible that Plaintiff may be hanging his venue hat for the latter two subsections on the allegation that GoDaddy is the registrar for the website where the article was published. However, federal law (15 U.S.C. 1125(d)(2)(A)) only permits the court to look to the registrar for jurisdiction or venue purposes when the plaintiff would be unable to sue the defendant anywhere else. In this case, Plaintiff has the options to pursue Defendants in other jurisdictions. B. Forum non conveniens I common law basis for dismissal. This also raises the forum non convenient doctrine as a reason for this court to dismiss the Plaintiff?s action and pointing him towards the more appropriate venue in Florida courts. Arizona courts have recognized the doctrine and have adopted the basic standards that defendants have the burden to show why it should be applied. Avila v. Chamberlain, 580 P.2d 1223, 1226, 119 Ariz. 369, 3372 (Ct.App. 1978). It is widely accepted that there are two factors for a court to consider in analyzing the forum non conveniens assertion, and in this case, both point to a Maricopa County dismissal. MOTION TO DISMISS - 6 19 20 21 First, you have the balancing of private and public factors. Those private factors include the ease of access to evidence, the parties? connections to the fora, the burdens to defendants in the plaintiffs chosen forum, the ease of obtaining witnesses and the enforceability of the judgment. While the ?rst listed factor may be a wash, the remaining four factors ALL point to New Hampshire?s or Florida?s trial courts being the logical choice. All but one of the parties resides in Florida and that would be the natural home of ALL of the discovery, witnesses, etc. It would seem that Plaintiff chose Arizona as the forum speci?cally because he believed it would be the most burdensome to Defendants; that alone should be suf?cient to convince this Court to send this case packing (to another court). And, of course, any possible judgment would be unenforceable in Arizona. The public factors are more of a wash, but the second part of the test also weighs heavily in favor of dismissing the case in Arizona and allowing it to be refiled elsewhere. That is whether there is an adequate alternative forum elsewhere. As indicated, the plaintiff and all of the moving defendants but one reside in the same jurisdiction, in Florida. And Florida law would also provide an adequate remedy if the Plaintiff is ever able to prove his case. For these reasons, this Court should grant this Motion pursuant to Rule Dismissal of Defendants Stern and Sragowicz - Rule 12(h)(2) Plaintiff has named Morningside Mortgage, Grant Stern and Richard Sragowicz, and the Complaint alleges that Morningside is an inactive corporation. This allegation would be the only way that the individuals Stern and Sragowicz could be named, as the individuals had no individual involvement in the publication of the article. However, as noted in an earlier MOTION TO DISMISS - 7 section of this Motion, Morningside is an active corporation and Plaintiff has no basis for suing its of?cers individually. Arizona law as does the law for most states is based on the premise that the shareholders, of?cers and directors of a corporation are not liable for the actions of the corporation. ?It is well settled that an officer. director or shareholder of a corporation may not be held liable for the torts of the corporation unless (I) he authorized or participated in the actions or (2) the corporation is an alter ego.? Maloofv. Roper Sales, Inc, 1 13 Ariz. 485, 557 P.2d 522 (1976). Neither is applicable here. and moving Defendants will swear af?davits affirming such as supplements to this motion. Plaintiff therefore has no existing cause of action against Defendants Stern and Sragowicz, and they should be dismissed pursuant to Rule Ariz.R.Civ.P. 1V. Dismissal for Failure To State Claim Rule 12(b)(6) Although it is unlikely that this Court will be required to consider this section of the motion, moving Defendants assert that even a cursory review of the allegations in this Complaint makes it obvious that this lawsuit is nothing more than sour grapes about an unfavorable news article that do not approach the level of either defamation or calling for a declaratory judgment as to its falsity. The vague and conclusory allegations are insufficient as a matter of law to allow the individual Jacob Gitman to maintain this action against any of the Defendants. Plaintiff tries to point to ?ve statements in the article that he claims to be false and defamatory to him. None of these can remotely represent actionable defamation. MOTION TO DISMISS - 3 defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff? honesty, integrity, virtue, or reputation.? Godbehere v. Phoenix Newspapers, Inez, 162 Ariz. 335, 341, 733 P.2d 7'81, 787 (1989). Whether a published statement is capable of defamatory meaning is a ?question of law for the court?, and that is the threshold question in any defamation case. Dnbe v. Likins, 216 Ariz. 406, 419, 167 P.3d 93, 106 (Ct.App.2007) (citation omitted); Reynolds v. Reynolds, 231 Aria. 313, 31?, 294 P.3d 151, 155 2013) (?The court determines as a matter of law ?whether a communication is capable of bearing a particular meaning,? and, if so, ?whether that meaning is Restatement (Second) of Torts In making this determination, the Court is guided by two important principles of law: - Statements of ?pure opinion? are ?not actionable,? MacConneH v. Mitten, 131 Aria. 22, 25, 638 P.2d 639, 642 (1981); and ?If an allegedly statement is substantially true, it provides an absolute defense to an action for defamation.? Fendler v. Phoenix Newspapers, Inc, 130 Ariz. 475, 479, 636 P.2d 1257', 1261 1981)(emphasis added). Let?s review each of the alleged instances separately. 1. ?Monarch is a known Russian front.? First, it is important to note that the article does not point to any connection between Monarch and Jacob Gitman. In fact, it is only in the Complaint that Gitrnan suggests that he is ?af?liated with Monarch? (Complaint, And, it is not Monarch that is bringing this Complaint. This statement is backed up by and attributed to Assistant U.S. Attorney Joshua Naftalis in a criminal case against Alimzon TokhtakhounovNa?alis noted that the defendants in that case were using Monarch to funnel money and drugs on behalf of the Russian Ma?a. There is nothing ?false? about the statement. Nor can this Court reasonably construe the statement as MOTION TO DISMISS - 9 bring Jacob Gitman ?into disrepute, contempt, or ridicule? or impeaching Gitman?s ?honesty. integrity, virtue, or reputation. The claim for defamation by Gitman must fail as a matter of law. 2. Vadim Trincher and Anatoly Golubchik ?were using Monarch". . ."were also running Monarch Air. . .out of Jacob Gitman?s Kane Concourse Address in Miami? This alleged false statement fails for the same reasons as statement As to the Plaintiff, the Assistant U.S. Attorney notes that the defendants in that case were using Mr. Gitman?s address. Pursuant to Saflomi v. Phoenix Newspapers, Inn, 160 Ariz. 144, 14?? (Ariz. Ct. App. 1989), the court recognized a ?public records privilege? when ?fair and accurate abridgement(s)? of the records are presented. The article accurately reports the public statements of the Department of Justice. Gitman?s claim of defamation must fail as a matter of law. 3. ?These aforementioned crimes mentioned above would send anyone to jail? This statement of opinion cannot be considered defamatory because it was supported by the presentations of the court cases. Any reader would conclude that not all criminal allegations ?send anyone to jail" and that a protected opinion was being expressed. In Turner v. Devlin, 174 Ariz. 201, 209 (1993), a statement that a police officer?s ?manner bordered on police brutality? was not actionable, and the court deemed them ?subjective impressions, unprovable as false." This claim of defamation must fail as a matter of law. 4. Assertions that Gitman was involved in the same crimes and schemes as Michael Cohen. The article does not make such assertions, and this claim must fail. 5. ?What I, and many other researchers in the twitter verse have found is a vast network of mobsters based out of Miami. They run fake debt scams, insurance MOTION TO DISMISS - 10 scams, they?re running infusion centers,? they?ve in?ltrated the D01 and have secret contracts with the Department of Defense? This summary paragraph hearkens back to all of the public records which were cited throughout this heavily-reported article. As with Plaintiff is therefore unable to show that these statements are false and defamatory, for the same reasons presented above. It is also important to note that Arizona courts have also found that inaccuracies that are ?not signi?cant? do not rise to the level of actionable defamation if they are ?substantially true?. ?Damage to reputation flows not from being in a prison facility per se, but from the fact that the person has been adjudged guilty of a crime by a court of law. . .. The enduring and uncontroverted fact is that appellant had been convicted and sentenced to prison, and the substantial ?sting? is the same, whether he had started his prison term or will never actually spend time in prison.? Fendler v. Phoenix Newspapers, Inc, 130 Ariz. 475, 480, 636 P.2d 1257, 1262 (Ct. App. 1981). The Complaint makes many other vague and conclusory allegations of other damage and damaging statements. However, they, too, are legally insuf?cient to support Plaintiff Complaint. Most outrageously, the Complaint baldly asserts that the article ?specifically impaired and impeded Gitman?s valuable business opportunities in Arizona.? (Complaint, 1150) Without citing any speci?c examples of such an opportunity or such an impairment, these gauzy allegations cannot support a defamation claim. Arizona courts demand a complaint to have well-pied facts. ?Mere conclusory statements are insuf?cient to state a claim upon which relief can be granted. . . .A complaint that states only legal conclusions, without any supporting factual allegations, does not satisfy Arizona?s notice pleading standard under Rule Cullen v. Auto-Owners Insurance Co., 218 Aria. MOTION TO DISMISS - 1 417, 189 P.3d 344 (2008) In a defamation case, this becomes more important because the court must be able to evaluate, as a matter of law, whether a ?statement is capable of defamatory meaning." Dubs, 216 Ariz. at 419. Even taking the allegations in the Complaint in their most favorable light, this Court can and should review this well-documented article (the Complaint incorporates it by link in 4137), and conclude that the Plaintiff has not stated a claim upon which relief can be granted. This claim should be dismissed, pursuant to Rule Ariz.R.Civ.P. V. Defendants Are Entitled To Fees/Coststamages - A.R.S. ?12-349 When a civil action is commenced ?without substantial justification?, or ?solely or primarily for delay or harassment?, then the court ?shall assess reasonable attorney fees, expenses and, at the court?s discretion, double damages of not to exceed ?ve thousand dollars against an attorney or party. . A.R.S. ?12-349. As has been demonstrated throughout this motion, Plaintiff is lashing out and grasping at straws about an article which has assembled and reported information from various public records in a way that Plaintiff does not like. Two more aspects provide support for Defendants? contention that this Complaint is without substantial justification and is designed to harass. First, that Plaintiff has picked the least convenient venue to bring this meritless action, in a state where he would not be able to enforce his hoped-for judgment, precisely because he is trying to harass the Defendants. If he believed that his case had merit, he would surely pick his home state of Florida, where he would be able to go after Defendants? businesses and other assets. Second, without anything to back it up, Plaintiff is alleging that Defendants were intentionally trying to speci?cally harm his Arizona business interest. This is a preposterous MOTION TO DISMISS - 12 conspiracy theory the article is clearly aimed at the federal government and Washington, DC. It does not mention Arizona or an aluminum plant. How could it when such a business venture was not even public knowledge in March 2019? And, why would it when the New Hampshire- based reporter was clearly looking for connections to the Trump Administration? Plaintiff apparent (and, erroneous) belief that someone asked the Defendants to write the article in order to harm his Arizona project sheds light on the harassing nature of this groundless Complaint that is not made in good faith. This Court should therefore hold Plaintiff responsible for the Defendants? reasonable attorney fees in bringing this Motion, and expenses. We believe that double damages not to exceed $5,000 are also justi?ed. CONCLUSION Jurisdiction, venue, the lack of an actionable defamation claim - this Complaint is de?cient in several ways, and the Court should grant each of the different bases for dismissing this Complaint. This Court should also view the multiple deficiencies as the basis for awarding fees, expenses and damages pursuant to A.R.S. ?12-349. RESPECTFULLY SUBMITTED THIS 30TH DAY OF JANUARY, 2020. Paul Weiel/ Paul M. Weich(#014089) LAW OFFICES OF PAUL WEICH Attorneys for all Defendants except A Medium Corporation MOTION TO DISMISS - l3 ORIGINAL e??led January 30, 2020 COPY emailed and mailed January 30, 2020, to: Logan Elia and Olen Lenets (LElia@roselawgroup.oom) ROSE LAW GROUP, pc 7144 East Stetson Drive, Suite 300 Scottsdale, Arizona 85251 Attorneys for Plaintiff Leon Silver (lsilver@grsm.com) GORDON REES 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Attorneys for Defendant A Medium Corporation 1.1, I. - I - MOTION TO DISMISS - 14 EXHIBIT A 2019 FLORIDA ORPORATION REIN TATEMENT P05000044590 Entity Name: MORNINGSIDE MORTGAGE CORPORATION Current Principal Place of Business: 9630 E: BAY HARBOR DRIVE BAY HARBOR ISLAND, FL 33154 Current Mailing Address: 9630 E. BAY HARBOR DRIVE BAY HARBOR ISLAND, FL 33154 FEI Number: 20-2557902 Name and Address of Current Registered Agent: CITADEL REALTY 9530 E. BAY HARBOR ISLAND DRIVE BAY HARBOR ISLANDS, FL 33154 US FILED Oct 24, 2019 Secretary of State 0755363286CR Certificate of Status Desired: No The ebeve named entity submits this statement for the purpose of changing its registered office or registered agent, or both. in the State of Fton'cte. SIGNATURE: RICHARD SRAGOWICZ 10i24t'2019 Electronic Signature of Registered Agent OfficeriDirector Detail Title Title Name STERN. GRANT 8 Name Address ease E. BAY HARBOR DRIVE Address City-StatenZip: BAY HARBOR ISLANDS FL 33154 City?State-Zip: Date SRAGOWICZ. RICHARD 9530 E. BAY HARBOR DRIVE BAY HARBOR ISLAND FL 33154 I hereby certi?r that the mt'orrnett'on indicated on this report or supptementat report. is true enri accurate and that my stem-onto signature she-it have the same tegai effect as if made under oath; that i am an ot?i'icer or dire-store! the corporation or the receiver or empties-red to execute this report as requrred by Chapter 60?; Ftonda Statutes; and that my name appears above. or on an attachment with at! other titre empowered. SIGNATURE: GRANT STERN Electronic Signature of Signing Ot?ceriDire-ctor Detail 10t24i2019 Date HBOIZOEU Detail by Entity.f Name I v' . ..-I - uirleorporation Detail by Entity Name Florida Pro?t Corporation MORNINGSIDE MORTGAGE CORPORATION Eiling infogmgtigg Document Number P05000044590 Number 20-255T902 Date Filed 031'241'2005 Effective Date 03l24l'2605 State FL Status ACTIVE Last Event REINSTATEMENT Event Date Filed 10.249019 Pringipal Address 9630 E. BAY HARBOR DRIVE BAY HARBOR ISLAND. FL 33154 UN Changed: 02l26f2012 Mailing dr 5 9530 E. BAY HARBOR DRIVE BAY HARBOR ISLAND, FL 33154 Changed: aggmuggnw A re Citadel Realty 9630 E. Bay Harbor Island Drive Bay Harbor Islands, FL 33154 Name Changed: 05f01l201? Address Changed: 05l01i201T Offigen??ireetor Detail Name 8: Address Title STERN. GRANT 96130 E. BAY HARBOR DRIVE BAY HARBOR ISLANDS, FL 33154 .. 1i2 113012020 Detail by Entity Name Title VPIS RICHARD 9630 E. BAY HARBOR DRIVE BAY HARBOR ISLAND, FL 33154 M9205 Report Year Filed Date 201? 051011201? 201 8 1012412019 2019 1012412019 Dogumgng "1114-20-19 -- . "magi, harm: ?yllg?j ?rage '11 PDF 'urma?; -- PDT -- "490$ 03-? REPORT NEH-N DEF ?mrnat -- View 10:11:35 in ?fU I'l" '1 _120_20Lb_?? ?regs: "nrrnul [ii-1.45.; :3 HT. Ullj'?" i" PDT- View i'1'.aqe :n 3311311 Vie-3.: .n'eggr: .l?iYF searchsu nhiznrg?nq RNING 24'2