UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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Three Angels Broadcasting Network, Inc.,
an Illinois non-profit corporation, and
Danny Lee Shelton, individually,
Plaintiffs,
v.
Gailon Arthur Joy and Robert Pickle,
Defendants.
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Case No. ______________________
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MEMORANDUM IN SUPPORT OF PLAINTIFFS' EX PARTE
MOTION FOR PRELIMINARY IMPOUNDMENT AND REQUEST FOR A HEARING
ON THE ISSUE OF PERMANENT IMPOUNDMENT
Introduction
Plaintiffs Three Angels Broadcasting Network,
Inc. (hereinafter "3ABN") and Danny Lee Shelton (hereinafter
"Shelton") (collectively "Plaintiffs") submit this Memorandum
in support of their Ex Parte Motion for Preliminary Impoundment
and Request for a Hearing on the Issue of Permanent Impoundment.
By this Motion, Plaintiffs seek to have their Complaint as well
as Defendants' Answers or other responsive pleadings preliminarily
impounded pursuant to Local Rule 7.2. Plaintiffs seek preliminary
impoundment of these materials in advance of serving the Complaint
on Defendants and until such time as this Court has an opportunity
to conduct a hearing with all parties present on the issue of
permanent impoundment. If this preliminary relief is granted,
Plaintiffs will serve the Complaint, the Ex Parte Motion for
Preliminary Impoundment and Request for a Hearing on the Issue
of Permanent Impoundment and this Memorandum on Defendants, all
subject to the Preliminary Order of Impoundment. At the
[page 2]
hearing, Plaintiffs will seek an order permanently impounding
these materials until the conclusion of this litigation, at which
time the materials may be retrieved by the parties or their respective
counsel.
Plaintiffs' claims can be categorized generally
into two groups with one group alleging trademark violations
and the other defamation. Plaintiffs seek impoundment in order
to prevent Defendants Gailon Arthur Joy (hereinafter "Joy") and
Robert Pickle (hereinafter "Pickle") (collectively "Defendants")
from using this litigation as a vehicle to further defame Plaintiffs.
Factual Background
3ABN is a non-profit corporation, the primary
business of which is to operate and manage a Christian television
and radio broadcast ministry. Plaintiff Shelton was an original
founder of 3ABN and has been continuously involved in the ministry
and its operations since its inception. Today, Shelton serves
as President of 3ABN and is one of 3ABN's on-air ministry and
music presenters. Although many of 3ABN's employees and volunteers,
including Plaintiff Shelton, are members of the Seventh-Day Adventist
faith, 3ABN is a non-denominational Christian ministry, which
is not owned by, affiliated with, or financed by any specific
church, denomination or organization. As a provider of religious,
spiritual and ministerial program services, 3ABN depends upon
its reputation for theological integrity, operational capability,
and financial soundness, in order to attract new viewers and
listeners, retain current viewers and listeners, and sustain
financial support for the ministry. 3ABN relies extensively and
almost exclusively on the donations of its television viewers
and radio listeners for its continued operation.
[page 3]
Defendants' Campaign to Defame Plaintiffs
As set out in Plaintiffs' Complaint, Defendants
have conspired in a campaign of defamation, slander and disparagement
designed to embarrass, discredit and defame 3ABN and Shelton
and to vitiate, dishonor and impair the reputation and goodwill
of 3ABN and Shelton. Upon information and belief, Defendants
are motivated by a desire to weaken the ministry to the point
of forcing the resignation of Danny Shelton and the current 3ABN
board of directors and, if possible, to force the reinstatement
of Linda Shelton, Danny Shelton's ex-wife, as a 3ABN employee
and director. Defendants believe they can force Plaintiffs' hand
in this regard by draining 3ABN's financial support through the
dissemination of false allegations of legally and morally reprehensible
conduct by Shelton and 3ABN. Defendants have utilized numerous
forums in their conspiracy to defame Plaintiffs, including Defendant
Joy's websites, www.save3ABN.com and www.save3ABN.org, and other
websites and chatrooms that are frequented by members of the
Seventh-Day Adventist Church (e.g. www.blacksda.com, www.maritime-sda-online.org,
and the Yahoo Prophecy Board forum).
Defendants have made every effort to publicize
their defamatory statements as widely as possible in order to
inflict the most harm on Plaintiffs' reputations by jointly marketing,
advertising and promoting the www.save3ABN.com website by posting
electronic links to the website on numerous electronic bulletin
boards and websites frequented by members of the Seventh-Day
Adventist Church, by mailing postcards to Seventh-Day Adventist
Churches across the United States directing Church Members to
the www.save3ABN.com website, and by encouraging Internet users
to visit the www.save3ABN.com website to "learn the truth" about
3ABN and its President, Danny Shelton.
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The subjects of Defendants defamatory, disparaging
and slanderous statements regarding Plaintiffs are many and varied,
but can largely be broken down into three categories: (1) that
3ABN and Shelton have committed financial improprieties with
donated ministry funds; (2) that 3ABN and Shelton have committed
administrative and operational improprieties at 3ABN and that
the organization is not properly or competently managed by its
managers, officers and directors; (3) and that 3ABN and Shelton
acted without grounds in removing Linda Shelton from the 3ABN
board of directors, that Danny Shelton had no grounds for divorcing
Linda Shelton, that 3ABN and Danny Shelton conspired to hide
evidence and information concerning her removal and their divorce,
and that 3ABN and Shelton have lied and made otherwise purposeful
misstatements concerning the Shelton's divorce and Danny Shelton's
remarriage. Defendants' defamatory statements are libelous, refer
to Plaintiffs' trade, business and profession, impute serious
misconduct to Plaintiffs and contain false accusations of the
commission of a crime by both Plaintiffs, and are, therefore,
defamatory per se. See e.g. Ravnikar v. Bogojavlensky, 438 Mass.
627, 630 (2003).
Argument
Every time Defendants publish these defamatory
statements, Plaintiffs' reputations are tarnished further. The
continued erosion of Plaintiffs' reputations and the goodwill
they have built over the last 20 years directly impairs their
ability to carry on the very mission of 3ABN, insofar as 3ABN
relies almost exclusively on the donations of viewers and listeners
for carrying out of its ministry. If their reputations are destroyed
by Defendants' orchestrated efforts, Plaintiffs will no longer
be able to count on this continued support. Therefore, Plaintiffs
seek to avoid having Defendants turn this litigation into yet
another opportunity to defame them, increasing Plaintiffs' damages
at every step.
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There is every reason to believe that, absent
impoundment, Defendants will repeatedly republish the defamatory
statements enumerated in the Complaint and will make additional
defamatory statements concerning Plaintiffs in their Answers
or other responsive pleadings in order to further their conspiracy
to discredit and disparage Plaintiffs in the eyes of the religious
and spiritual community. As an initial matter, Defendants are
quite likely to post the entirety of the Complaint, as well as
their Answers or other responsive pleadings on the www.save3ABN.com
website, along with color commentary further defaming Plaintiffs
and further tarnishing Plaintiffs' reputations in the eyes of
the very community where their reputations matter most. Defendants
have a history of doing exactly this.1
For example, within days
of receiving the cease and desist letter sent by Plaintiffs'
counsel, Joy posted the letter on the www.save3ABN.com website
despite the fact that Plaintiffs made clear that the letter was
a confidential legal communication, not for publication. See
Attachment 1.2
Similarly, Defendant Joy posted in its entirety a Financial Affidavit filed
by Plaintiff Shelton in the divorce proceeding with his ex-wife,
Linda Shelton. See Attachment 2. In connection with the Financial
Affidavit, Joy authored a "Comments" section in which he raises
a number of questions, ultimately concluding Plaintiff Shelton
was untruthful in the Affidavit. See Attachment 3. Since the
Affidavit was filed under the pains and penalties of perjury,
Joy is, in essence, accusing Shelton of a crime.
Moreover, Defendants Joy and Pickle have repeatedly
published other highly sensitive information with impunity. Even
a cursory review of the www.save3ABN.com website reveals
1 In this regard,
Plaintiffs will be seeking a protective order pursuant to Fed.
R. Civ. Pro. 26(c) regarding discovery materials in order to
avoid having every piece of discovery published wholesale on
Defendant Joy's website or otherwise.
2 All of the Attachments to this Memorandum
were printed from the www.save3ABN.com website. Because the attachments
are merely illustrative of Plaintiffs' points, Plaintiffs have
not included every single page of each posting. Rather, Plaintiffs
have simply included the pertinent pages. (E.g., as can be seen
on the top right hand corner or Exhibit 1, the actual posting
is 9 pages, but Plaintiffs are only submitting the first 2 pages
to the Court.) Plaintiffs have also highlighted certain portions
of the Attachments that are particularly relevant.
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that it is rife with personal emails of which neither
Defendant was the sender or recipient. These include emails sent
between Plaintiff Shelton and his ex-wife, Linda Shelton, and
concern highly confidential matters of their marriage and divorce.
Nevertheless, Defendants apparently felt no compunction about
publishing them on the web for the world to see and adding defamatory
commentary allegedly interpreting them, always in Linda Shelton's
favor of course. See, e.g., Attachments 4—6.
Lastly, the site is home to numerous other attacks
on Plaintiffs by Defendants. By way of example, Plaintiffs attach
to this Memorandum Defendants' "Financial Allegations Against
Danny Shelton." See Attachment 7. The import of this posting
is clear—that Plaintiff Shelton is committing financial fraud
with respect to 3ABN as well as tax fraud against the United
States Government.
The attachments to this Memorandum, all of which
have been taken from the www.save3ABN.com website, are by no
means exhaustive of the defamatory statements Defendants are
publishing. Rather, they are merely illustrative of the breadth
of Defendants' campaign to defame and disparage Plaintiffs. This
case is not about one or two defamatory remarks uttered to a
limited audience. It is a concerted, pervasive and ongoing effort
by Defendants to literally destroy Plaintiffs' reputations in
the unlimited audience available on the web.3 Given this background
and Defendants' track record, it is obvious that, absent a Court
order, Defendants will utilize this litigation as yet another
opportunity to further their campaign to defame Plaintiffs. Therefore,
Plaintiffs seek a preliminary order impounding the Complaint
and Defendants' Answers or other responsive pleadings in advance
of serving the Complaint on Defendants and request that the preliminary
order of impoundment last until such time as the
3 Of
course, Defendants have been able to greatly increase the likelihood
that their defamatory statements will reach their intended audience,
i.e. 3ABN's current and potential viewers and listeners, by misuse
of 3ABN's trademarks. See Complaint, ¶¶ 25—37.
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Court has the opportunity to examine the pleadings
and conduct a hearing with all parties present on the issue of
permanent impoundment. At that hearing, Plaintiffs will seek
an order permanently impounding these materials until the conclusion
of this litigation, at which time they may be retrieved by the
parties or their respective counsel.
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RESPECTFULLY SUBMITTED,
For the Plaintiffs Three Angels Broadcasting
Network, Inc. and Danny Shelton,
By their attorneys, |
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| Dated: April 5 , 2007 |
[signed] J.P.P. |
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John P. Pucci, BBO#000000
J. Lizette Richards, BBO#000000
Fierst, Pucci & Kane, LLP
64 Gothic Street
Northampton, MA 01060
Tel: 413-000-0000
Fax: 413-000-0000
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