BD files motion to dismiss Melissa Kingston suit as a SLAPP, meant to silence criticism of Philip Kingston during council campaign
Hearing on November 7, 2012 on Plaintiff's Motion to Compel Discovery (Associate Judge Sheryl McFarlin) - Decided: The judge approved motions to compel discovery on Avi S. Adelman, Melissa Kingston and Philip Kingston (pending a notice to depose) on January 7 and 8, 2013; depositions will be narrowly restricted to the anti-SLAPP motion only, with respondents permitted to not answer any questions objected to by counsel; Philip Kingston ignored a subpoena to appear in court, further action T B D
Hearing on Defendant's Motion to Dismiss under Texas Citizens Participation Act (Anti-SLAPP) (Judge Carlos Cortes, 44th Judicial District Court, 5th Floor New Tower, George Allen Courts Building), originally set for November 26th, postponed to January 14, 2013 (date subject to change)
Contact: Justin P. Nichols, (972) 900-2829
Activist uses new Texas Anti-SLAPP law to fight lawsuit by wife of Dallas City Council candidate aimed at silencing free speech
Lower Greenville activist and BarkingDogs blogger, Avi S. Adelman, is invoking Texas' new Anti-SLAPP law to fight a lawsuit filed by Melissa Kingston, wife of District 14 Dallas City Council candidate, Philip Kingston, and claims the suit over a $13 domain name is really an attempt to keep him quiet during Mr. Kingston's campaign and beyond.
Adelman and his family have lived in the Lower Greenville area for over 30 years when Wal-Mart announced it was moving into the former Whole Foods space on Greenville Avenue, across the street from Adelman's home. Adelman was adamant Wal-Mart, while legally zoned for use as a supermarket, minimize the effects on the surrounding community – particularly those 'close-in' neighbors residing within one block of the new store.
Melissa Kingston, a local attorney and resident of Lower Greenville, started negotiations with Wal-Mart on behalf of five local neighborhood associations [Vickery Place, Belmont, Lowest Greenville West, Lower Greenville, Greenland Hills], and Adelman contends the [Belmont, Vickery Place and Lowest Greenville West] associations had initially agreed to include him and his neighbors in the discussions. But, according to Adelman, Kingston ignored Adelman and his neighbors and excluded them from meetings with Wal-Mart, claiming she objected to Adelman's negotiation tactics.
After months of being excluded, Adelman purchased a $13 domain name from GoDaddy.com, melissakingston.com, and sent seven emails over the course of two days – all involving neighborhood issues, and all signed Avi S. Adelman.
Four days after Adelman purchased the domain name, and without any notice, Kingston filed a lawsuit riddled with insults, name calling, and baseless allegations against Adelman. Despite the fact Adelman has passed three background checks in the last year in order to participate in programs sponsored by the Dallas Police Department's Volunteer in Patrol program, the Dallas Community Emergency Response Team, and the Dallas County District Attorney's Citizen Prosecutor Academy, Kingston claimed she needed a 2,000-foot diameter bubble to feel safe. This bubble prevented Adelman, whose home is 1,260 feet from Kingston's, from walking down his own street. Days later a judge narrowed the bubble to one residential block.
Adelman promptly offered to surrender the domain name to Kingston, but that wasn't enough. Kingston wanted to continue the lawsuit, and demanded Adelman agree to permanently refrain from posting anything derogatory about her or her husband, Philip Kingston.
Quoting from the Motion -
f) On September 18, 2012, Plaintiff [Melissa Kingston] sent proposed terms of settlement vastly larger than the subject matter of this suit, wherein she demand, inter alia, Defendant:
1. "turn over administration and registration of the domain philipkingston.net and philipkingston.org to Philip Kingston…";
2. "redirect philipkingston.net and philipkingston.org to yahoo.com with a search for Philip Kingston…";
3. "not to ever register or use in any fashion the name of … Philip Kingston…";
4. "not to publish in writing or on the internet disparaging statements about me… and/or my family, including without limitation… Philip Kingston."; and
5. "execute a full release for … Philip Kingston…".
As it turns out, one day before making the demands, Kingston's husband, Philip Kingston, filed paperwork indicating his intent to replace incumbent Dallas City Councilwoman, Angela Hunt. Mr. Kingston, who served as Hunt's campaign treasurer, appointed Hunt's husband, Paul Sims, as his own campaign treasurer. "It's a bit too politically incestuous for my taste," says Adelman expressing his concern.
It became clear to Adelman that Kingston's suit is much less about a domain name, and much more about keeping him quiet while Mr. Kingston runs for office. Adelman opines,
The math just doesn't add up. I've offered to give Melissa what she wants, but she wants to keep this lawsuit going until I agree not to speak out against her husband, who isn't even a party to the suit.
I think Melissa fears I'll post stories on my blog about my belief that Philip lacks the qualifications to represent District 14 – just as I wrote about Councilwoman Hunt when she ran for Council eight years ago.
I am not about to give up my First Amendment rights while Philip runs for, or serves, as my Council representative.
Adelman's attorney, Justin Nichols, has filed an Anti-SLAPP Motion to Dismiss Kingston's suit.S.L.A.P.P. (Strategic Lawsuit Against Public Participation) suits are a growing trend used to chill free speech. In 2011 the Texas Legislature enacted the Texas Citizens Participation Act, which allows courts to dismiss suits filed in response to the defendant's exercise of First Amendment rights when the plaintiff cannot produce clear evidence of each element of her claims.
|Download the Anti-SLAPP Motion at these links|
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|Download the Press Release at these links|
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Mrs. Kingston's suit was filed four days after Mr. Adelman purchased the domain name. Not only was there no time to suffer damages – an essential element of her claims – it's appears to me Mrs. Kingston wants to continue to this suit in an effort to use the courts to keep Mr. Adelman quiet and at arm's length while her husband runs for office.
Thankfully, the Texas Legislature passed a law which puts a stop to SLAPP suits, and punishes those who file them. That's exactly what we're asking the Court to do in this case, and I anticipate we'll be able to show the court the true motive of this suit.
If the Anti-SLAPP motion prevails, the law requires the Court to award Adelman attorney fees, and requires Kingston be sanctioned to prevent her from filing similar suits in the future.
This isn't the first time the Kingston's have used the courts to achieve their political agendas, and I have to wonder, if Kingston is elected to City Council, will this be what the residents of District 14 have to look forward to? Not if I can help it.
Now that the Anti-SLAPP motion has been filed, what happens next?
The statue allows a judge to dismiss frivolous lawsuits filed against one who speaks out about a "matter of public concern" within the first 60 days, a deadline we have met by filing this motion.
The statute creates a stay of discovery in a lawsuit while an Anti-SLAPP motion is pending and/or appealed. The court has discretion to order discovery pertaining to the motion if it feels it is necessary.
The judge must call a hearing within 30 days, at which time the burden shifts to the Plaintiff (Melissa Kingston) to establish (by clear and specific evidence) a prima facie case for each essential element of the original claim they filed in early September (misappropriation of name, injury to business reputation, infringement of common law mark, theft (of the domain names), injunctive relief, business disparagement, tortious interference).
Upon consideration of the evidence, the judge has 60 days to present his decision as to whether the original motion was a SLAPP suit. The statute provides for mandatory fee shifting when a party wins an Anti-SLAPP motion so that the person or entity wrongfully filing a lawsuit must pay the defense costs. There is a discretionary fee award if the Court finds that the Anti-SLAPP motion was frivolous or brought solely for the purpose of delaying the proceedings.
The statute provides an immediate right to an expedited appeal if the Anti-SLAPP motion is denied.
Note: Even if Melissa Kingston were to drop her suit within the next five minutes, that does NOT mean the anti-SLAPP motion is moot. Under the new statute, we can continue to prosecute the SLAPP claim (and others), only the roles are reversed: BD becomes the Plaintiff, and Melissa Kingston becomes the Defendant.
Information about the lawsuit and copies of filings are available on the BarkingDogs blog at this link.
More information about Texas' Citizens Participation / Anti-SLAPP Act can be found at this link.
This case, while filed in the 95th District Court, is being heard by The Honorable Carlos Cortez of the 44th District Court, sitting by assignment after the judge of the 95th District Court recused himself.