Lost Society lawsuit against BD tossed into a pile of meth-covered towels, set on fire and dismissed forever!

"First they ignore you, then they laugh at you, then they fight you, then you win." - quote attributed to Mahatma Gandhi

The libel/defamation/slander/copyright infringement lawsuit filed in December 2010 against BarkingDogs.org and its publisher by the purported owner of now-closed forever club Lost Society, Fernando Rosales, has been dismissed in a summary judgement. The order was signed by Dallas County Judge Mark Greenberg on Friday, April 27, 2012, in a hearing that lasted about 30 seconds. The motion orders Fernando Rosales to pay reasonable costs incurred by BD and his attorneys in their defense of the suit, which was filed in December 2010.

No-Evidence Motion to Dismiss Lost Society vs BarkingDogs lawsuit, signed April 27, 2012

BD was represented pro bono by attorneys at the Dallas law firm of Vinson & Elkins, at the request of the Reporters Committee for Freedom of the Press based in Arlington VA. RCFP has been working with BD since he was first subpoenaed by Rosales and his attorney in November 2010 over a lawsuit between Rosales and Lowest Greenville property owner Andres Properties. Andres had locked-out Rosales and bar co-owner Brightman Nwatu after a shooting left a Lost Society patron dead on the Char Bar parking lot in June 2010. A few days after the shooting, Nwatu was taken into custody by DHS’ Immigration and Customs Enforcement officers because he was an illegal alien who should have been deported nearly seven years ago, but managed to evade authorities. The TABC filed charges against Nwatu and Rosales for presenting false papers about the ownership of the bar in his application for a TABC license.

Rosales was represented in this civil action by ambulance-chasing attorney Armando Miranda, who is currently serving the second of two suspended probations related to his law practice by the Texas Bar Association. Rosales was not represented at the Friday hearing. Rosales can't even pay his attorneys because he is sitting in the Rockwall County Jail. BD's lawyers filed the motion only after months of playing phone tag with Miranda and his assistant, who had promised cross-their-hearts-hope-to-die their client would listen to reason and drop the lawsuit.

Motion for Summary Judgment filed on behalf of BD by his attorneys

While sitting in the Rockwall County pokey, Rosales has submitted numerous motions ex parte (acting as his own lawyer). This is my favorite,

Application for Writ of Habeas Corpus / filed pro se by Fernando Rosales

Rosales is claiming, among other things, he is being held illegally in jail, falsely charged with possession of meth, wanting bail set at $50,000, that all the bail settings in Dallas and Rockwill are oppressive, is unemployed, his business closed, his assets siezed to pay liens, his bank accounts are empty, etc.

But he has home equity! That means there's something left for BD's kids to spend.

This settlement was not without its lighter moments. Miranda told BD's attorneys (before Thanksgiving weekend) he would talk to his client about non-suiting the case. Two weeks later, he calls back and says (not sic)

Rosales is ready to drop the suit. But in return, he wants all the content about Lost Society and himself removed from the website. And, we don't want BD to publish any story about the non-suiting of the case. And by the way, my client is making a deal with the Rockwall County DA, so he'll be out of jail in two or three years.

In other words, give them everything they demanded in the lawsuit, which was filed more than a year ago. You can only imagine BD's reply to that demand.

The hearing to dismiss the suit was originally set for mid-March 2012. But just days before, Miranda called BD's attorney and said he was going to visit his client one more time in an effort to get him to sign the papers to dismiss the suit. We have no idea if Miranda ever made that visit, but we do know he never called BD's attorney to confirm the dropping of the suit. We had already re-set the hearing for late April, and we were not going to take any more delays.

Most of the legal documents in this case and links to stories about Lost Society, Brian Nwatu and Fernando Rosales can be found here.

This story includes two previously unreleased documents -
the deposition of a TABC agent, and the results of a Dallas Sheriff Office investigation of officers who worked off-duty at Lost Society.

Brian Nwatu (photo courtesy Dallas County Sheriff)
Fernando Rosales (photo courtesy Dallas County Sheriff)

During the November 2010 deposition, Rosales' attorney wanted BD to give up the names of people who told him the shooting was preceded by a fight inside Lost Society. BD invoked the Texas Free Flow of Information Act, a/k/a reporters’ shield law, and refused to name any of his sources. The attorney insisted BD was not covered by this law since he was not deriving income from his work as a blogger.

BD’s reply-

That’s your opinion. Go find a judge who agrees with you.

Despite two attempts to muzzle BD's website in court, Rosales never ever found a judge who agreed with him, but he did really well in pissing off the judge who had the bad luck to get this case.

Miranda and Rosales clearly did not have a sense of humor. In their December filing, they objected to BD's description of their closing by the landlord -

The June 30, 2010 post reads, "Lost Society has been locked down by the landlord for violating their Don't get customers killed clause," which is false and misleading.

The December filing demanded BD shut down this website, remove any content about Lost Society or Rosales, and have all future content about Lost Society approved before publication by Rosales. Rosales' attorney emailed a copy (in WordPerfect format - Does anyone still use WordPerfect?) of the filing and a request for ex parte hearing (an emergency hearing without the plaintiff's presence) for a temporary restraining order on the BarkingDogs website to BD on a Saturday evening Rosales himself delivered a copy of the lawsuit to BD's home (specifically, The Doggette and not BD himself) on Sunday evening, leaving fast enough to avoid being sicced upon by any one of BD's three large scumbar-owner hating dogs.

The ex parte request for a temporary restraining order on the website was denied by Dallas County Judge Mark Greenberg a few days later.

There was no further action in the case from Rosales' side until April 2011, when Miranda filed (again) for a temporary injunction to force BarkingDogs to immediately remove any content about Lost Society or Rosales before a trial was ever held, and get their approval for anything published about the case, the bar or Rosales. Their belief was that even if they won the case, BD would not be able to pay the nearly $350,000 in damages being sought. The motion called for BD to remove content discussing the restaurant or Rosales, alleging BD made false statements about the bar on the blog and claimed the statements resulted in damages and loss of business dealings and wrecked their chances of selling the bar to another sucker. Miranda appointed himself as an expert witness who could fairly appraise the value of damages caused by BD's stories.

BD is not sure which pie-hole Miranda pulled that $350,000 figure from, but it's gotta be a big one. Lost Society's sales over the past year, as reported truthfully (cough cough) to the TABC and State Comptroller, show a steady drop in sales, nearly 30% over the whole year.

Before the hearing, Miranda (who arrived late very late), asked BD's attorney to step out in the hallway and then demanded BD not post anything about this hearing on the blog. Yeah, like that's gonna happen, he was told. BD was not present during the conversation and can only imagine what was really said. Judging by the large amount of laughter coming into the courtroom from the hallway, this is a pretty good guess.

During the hearing, Miranda attempted to persuade the judge that blogging is no different than having a driver's license. Yes, he said, anyone can get a license to drive or buy a domain name and write a blog. But like driving, blogging comes with responsibilities. You can't just drive down the street and ignore the red lights, speed limits and traffic cops. Likewise, when you blog, you have to respect the truth, make sure your facts are correct. All we are asking for is that anything BD posts about my client is given to us for review ahead of time and approved for content first (this is not an exact quote, but you get the idea).

Judge Greenberg ordered Miranda to file a written brief to explain why it was so important to Rosales that the website content be removed immediately, even before a trial was held on the claims of defamation and libel. Prove up, he challenged the attorney, your claim that allowing the content to stay on the website is dangerous and threatening to your client.

In English, this translates as -

You have two weeks to show me why your client thinks he is so damn important that we should suspend the United States and Texas Constitutions’ guarantees of free speech and free press, otherwise known as prior restraint.

After the hearing, as BD and his attorneys walked to the elevator, one of BD's attorneys said - I guess Miranda just hit a STOP sign.

Miranda's brief (which also arrived after the deadline) was a poorly written, mistaken-laden, mis-cited 32 page document, which started with this statement, presented exactly as it is typed on the document:

Mr. Fernando Rosales is a thirty years old and a vetern of the military, where he served horably. He is a coollege graduate and is atending a master program in finance/accounting. He is engaged to be married to the daughjter of the former City of dallas, asst firechief. (sic)

Sources tell BD the fiancee is Asia Moore, who was quoted in a DMN story after Nwatu and Rosales were arrested in late June 2010 -

"Lost Society does well, and a lot of people, unfortunately, resent us for it," she said in a written statement. "Lost is made out to be something far from what it is by some of our 'neighbors.' Everything is going to be fine at our bar. This is only a minor speed bump."

For clarification, this is what a speed bump looks like.

 
This is what Lost Society looks like today.

Judge Greenberg dismissed Rosales' motion a few days later, and denied a re-hearing on the dismissal.

These two motions were the only activities conducted by Miranda on behalf of his client. In addition to refusing to answer all requests during discovery (see below), he also failed to attend a deposition of a TABC Investigator on behalf of his client called by BD's attorneys. He did call two weeks after the deposition to ask when it was going to happen. He was consistently late in filing his documents to the court or BD's attorneys.

In contrast, the Vinson & Elkins attorneys were busy busy busy for their client. They filed three briefs and motions in opposition to Rosales’ demands, three attempts of discovery seeking proof of Rosales’ claims of damages, conducted two depositions, spent countless hours in research and preparation, and held numerous in-depth interviews of BD in response to every claim filed by Rosales.

In regards to claims of infringement of a copyright when BD photoshopped Lost Society’s billboard, BD's attorneys asked Rosales to...

Produce all Documents relating to any alleged trademark law violation [the Photoshopped billboard] you allege Defendants committed in paragraph 16 of your Amended Petition. This request includes, but is not limited to documents relating to the challenged June 6, 2010 weblog article referenced in paragraphs 13 and 14 of your Amended Petition.

Produce all Documents relating to any alleged trademark held by Plaintiffs during the time of the challenged June 6, 2010 weblog article referenced in paragraphs 13, 14, 15, and 16 of your Amended Petition. This request includes, but is not limited to, documentation from the U.S. Patent and Trademark Office.

Rosales' attorney was late in filing responses, even after BD's attorneys gave him extensions. And when he did file, he refused to answer any of these requests or provide the documentation needed to prove up his claims. BD's attorneys were forced to file a motion to compel testimony, which Rosales' attorney also ignored. So much for telling the truth, the whole truth and nothing but the truth.

The Lost Society billboard after BD photoshopped it.

Charging BD violated a copyright by using a photo of Rosales lifted (with credit) from his Facebook account), BD's attorney asked Rosales to ...

Produce all Documents relating to any alleged copyright infringement [the use of Rosales' Facebook photo] you contend Defendants’ committed on Paragraph 18 of your Amended Complaint. This request includes, but is not limited to documentation, correspondence, and/or communications relating to the challenged June 6, 2010 weblog article referenced in paragraphs 13 and 14 of your Amended Petition.

Rosales' Facebook photo, which he claimed (but would not prove) was copyrighted.
 
This is NOT a photograph of Rosales' attorney, Armando Miranda. He can only wish he were just 10% as good a lawyer as Perry Mason.

Rosales’ attorney refused to answer any Discovery questions, claiming they were evidence which he was saving for trial. Miranda ignored all rules regarding the discovery of documents as established by Texas courts, and missed more deadlines than bottles of beer sold to gangbangers in a Lowest Greenville bar, in the desperate hope of pulling a Perry Mason rabbit out of his hat during the trial he kept demanding.

The underlying cause for Rosales’ lawsuit was his allegation that BD made false statements about the June shooting, by claiming the argument started in the Lost Society, based on interviews with witnesses BD spoke to on the street less than an hour after the incident.

The June 3, 2010 post titled, "Early Morning Shooting Leaves One Dead on Char-Bar Parking Lot," states that "[t]wo black males had just left Lost Society Bar" when an argument ensued and one of the males shot and fired four rounds at the other. Defendant has included links to a Dallas Morning News article and a Dallas Observer blog regarding the incident.

Defendant's statements about the males just leaving Lost Society bar are false and Defendant knew or should have known there was no basis for this statement. Defendant's own links to news stories regarding the incident make no mention of Lost Society.

Photos of the Char-Bar parking lot immediately after the shooting, June 3, 2010

In late June 2011, TABC Agent Joe Garcia was deposed by BD’s attorneys. In less than five minutes, he blew that claim out of the margarita glass …

Q: You said in this (TABC) report that Mr. Nwatu [the club manager before he was arrested for being an illegal alien] was asked whether or not the parties involved in the shooting had been at Lost Society?

A: Yes

Q: And then you stated that he was very nervous in stating that they had not been?

A: Right

Q: Did that lead you to believe that he was lying?

A: Yes

And...

Q: ... Law enforcement agents believed that patrons of Lost Society were involved in the June 3rd shooting that took place at the Char Bar?

A: Yes.

During the deposition, Agent Garcia blew gaping holes into Lost Society's claim that it was a safe and proper business, while the neighbors were the ones who had 'issues.'

Q - Can you tell me how Lost Society compares to other bars that you investigate?

A - It's one of the worst so we consider it one of the most dangerous. ... You've got the people that always do the right thing and we don't have to go over there or worry about anything about them.

Then you've got those that, you just tell them, Hey, this is what you need to do, they take care of it.

Then you've got those that you've got to stay after all the time but they still stay within the law.

And then you've got those that are going to do whatever they want.

Lost Society is the worst kind. They're going to do whatever they want, and they're not going to care about whether or not underage people come in. We've had that consistently happen.

You want an example, let's look at this one (quoting from the deposition)

On May 13th of this year [2011]...we had a 19-year-old girl go into Lost Society and she drank to the point of passing out. She was carried out into the alley and left there, and she was found by police officers about 20 minutes afterwards. She had to be hospitalized for acute alcohol poisoning. [Editor's note - See DPD Offense Report 0122332-Y for more information]

Our (TABC) investigation revealed she'd come out of Lost Society and been allowed to go into Lost Society, but she also had been with a group of approximately ten other University of Texas Dallas students that were all under the age of 21 and all of them consumed alcohol.

I found there was a surveillance video that I viewed and I made a request for. I specifically requested the five minutes prior and the five minutes after that surveillance video. But then I was later told they could not transfer that video to a thumb drive and that the information I had requested had been erased.

Rosales claimed BD interfered with a contract between Lost Society and off-duty Dallas County Deputy Sheriff Officers (DSO) when his article about their working as bouncers at the bar less than a week after the shooting – and a subsequent demand for an investigation into how they were hired for this off-duty assignment in light of the shooting and other issues – led to a suspension of any off-duty work by DSO at Lost Society.

The June 10, 2010 post also states that Defendant called the Dallas Sheriff’s Office public affairs office and asked them if they "knew the reputation of the club,” implying that Plaintiffs have a bad or negative reputation.

The DSO released the results of its internal investigation upon an Open Records request. The DSO's Internal Affairs report confirmed the two off-duty DSO's were working off-duty without DSO permission outside the club, had falsified their off-duty paperwork about working at the club, and were acting as bouncers in front of the club and not in the parking lot as they claimed. The investigation resulted in one-day suspensions without pay for the two officers who stood outside the bar and unknown actions against a supervisor who set up the assignment and then parked his DSO vehicle at the club for nearly an hour on the same evening while he talked to the officers.

The release of these and other documents proves that Rosales’ claims against BD were not only completely false and deceptive, but they were pulled out of his butt by someone who really is an incompetent lawyer (with apologies to all the other incompetent lawyers in Dallas).

The lawsuit against BD accelerated into a downward spiral when Rosales was arrested by Rockwall Police Department officers on October 11, 2011 while transporting nearly seven pounds of methamphetamine from the bar to a Rockwall address. Acting on information provided by a reliable DEA informant, Rosales was followed by Rockwall PD narcotics investigators from the back door of Lost Society to Rockwall, where police officers made a traffic stop. After Rosales refused to allow an inspection of his car, a specially-trained drug-sniffing dog walked around the vehicle and popped it for narcotics in the vehicle. A few hours later, Rockwall PD officers raided the club premises and found more narcotics (at least 400 grams). Immediately following the raid, the property owner locked Rosales out of the club for non-payment of rent.

Sources tell BD that shortly after the bar was locked up by the landlord, Rosales' criminal attorney (his third attorney in this case in less than a year) on the false papers charge went to the Dallas County DA and said,

Hey, the bar is closed for good. Can you drop the false papers charges now, please, please??

BD understands the Dallas County prosecutors had a good laugh and then said.

No.

Rosales' most recent mug shot, courtesy Rockwall County Jail

Rosales is currently being held in the Rockwall County Jail on three charges of possession of narcotics in quantities greater than 400 grams (one charge is from Dallas County for the drugs found in the raid) and a no bail/no bond flag is on his file. After his trial in Rockwall, he will be transported to Dallas for a two trials – possession of the drugs and the false TABC papers. It is also possible that federal charges of transporting large quantities of drugs could be filed against Rosales, which could put him in jail for 235 years.

The most important issue in this case – applying the Texas Free Flow of Information Act to bloggers – was not settled by the dismissal. BD’s efforts to protect his sources of information were successful – not one source of BD's information was identified for the record to Rosales or his attorney. Two attempts by Rosales to force BD to close down the website, remove any content about Lost Society or Rosales, and/or demand that any future stories be approved by Rosales (prior restraint) were always denied by Judge Greenberg.

Recent attempts at blocking full media coverage of Occupy Wall Street-related events, which included the arrests of journalists and photographers from all types of publications, reignited the Who is a journalist? debate. No longer do journalists wear fedoras with a press pass in the brim and smoke cigars. Rosales was upset his issues and mistakes were posted on a hyperlocal news blog covering issues in a community no larger than two square miles. Rosales did not believe anyone should write about issues that affected him, let alone write anything without his approval, and certainly not in a forum that could – and did – attract the attention of law enforcement officers or potential future employers. He wanted complete control of the story, and he wanted it to go away no matter how much it cost.

Did BD’s stories attract the attention of law enforcement, or was BD simply reporting the news about law enforcement’s actions against Rosales? According to BD’s sources, Nwatu had been on the TABC radar for years after operating another illegal club on Lowest Greenville. The shooting just accelerated their investigation and subsequent arrests. Rosales and Nwatu were arrested for filing false papers after the TABC reviewed Dallas County records, which are public documents. Rosales' attempts to cover his tracks by cancelling the first filing simply made his mistakes easier to find.

Is it wrong for BD or any other blogger to dig into a story, getting the documents, and using his sources in local law enforcement agencies to get information about a club owner who has been arrested and charged with crimes that most law abiding citizens may not even understand (can you explain subterfuge in less than 250 words??)? The First Amendment reads

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It does not define who is the press, or even require stories to be printed on paper. The Bill of Rights works because it does not limit itself to the technology that existed two hundred years ago. During an interview about local websites nearly ten years ago, BD described blogging as paper on glass – there’s no difference between a big-city newspaper published by a local media company, and a blog published by someone who cares about his/her community. Good old-fashioned journalism, asking questions and digging into records and files is not an activity reserved only to big media companies with dozens of reporters. Just because the Dallas Morning News does not ask these questions does not mean BD and other bloggers should not ask the same questions.

Rosales’ had two problems – He was breaking the law with impunity, and he was caught breaking the law. He was not happy to see his mistakes posted on a blog, where anyone could read about them for years and years. He realized GOOGLE would be his worst enemy if and when he started applying to major accounting firms for a job (assuming he ever got his CPA license). Rosales tried to rewrite his history, and in the end he got bit on the ass with more stories and more digging.

BarkingDogs.org is not the DMN and never will be. But BD applied the same journalistic principles to his work – research, verification and confirmation - that the big papers use.

In the end, Rosales was his own worst enemy. He continued to thumb his nose at local officials with lies and misstatements. For example, on the first night of the new Lowest Greenville late hours SUP -

... Lost Society's owners told Dallas Police officers and code compliance enforcers who'd come to ticket the joint that he too had filed for a temporary restraining order. Assistant City Attorney Melissa Myles, no-nonsense in her jeans and boots on this crisp night, said it didn't count -- it never went before a judge. So Lost Society shuttered, rather than risk a ticket. (Source: Dallas Observer / Unfair Park)

The documents were never filed, and Rosales received citations for operating without a Late Hours permit on Lowest Greenville the next weekend. Just a few days after this photo was taken in front of Lost Society, Rosales was in the Rockwall County Jail.

Lost Society owner Fernando Rosales, Saturday October 8, getting a citation for operating after midnight without a Specific Use Permit.

Only Rosales himself can explain why someone with two college degrees decided selling and/or transporting large amounts of narcotics seemed like a good idea at the time. Or why it was so damn important for him to sue BD for publishing factual stories about his club and his criminal activities.

BD is deeply indebted to Vinson & Elkins and the Reporters Committee for Freedom of the Press for taking this case pro bono. BD did not call his attorney every other day and ask, Hey, what's new in the case??? Did we win yet?? He knew they had the entire case covered from start to finish. The V & E attorneys handling BD's case were consumate professionals who absolutely knew what they were doing and were always five steps (or more) ahead of Rosales' poor excuse for an attorney.

We were all hoping for an outcome that would create a precedent to include bloggers under the Texas Free Flow of Information Act. But not to worry - somewhere in Texas, another blogger is digging deep into an issue that impacts his or own community and is this close to pissing off someone who thinks the digging is getting too close for comfort. That case may be the one to force changes in the law. You can read about similar cases on the Slapped in Texas blog, which has a primer on how recent changes in Texas' anti-SLAPP laws will help bloggers.

BD is happy Lost Society - which was a front for drug dealing activities, underage and binge drinking, and had an illegal alien for a manager who tried to rape a waitress three times - is closed for good. He's not happy a Dallas County judge refused to revoke Lost Society's liquor permit late last year when the TABC and Dallas County District Attorney presented a strong case for applying a unique TABC public safety rule. A lot of pain and trouble could have been avoided if that judge had followed the precedents set by TABC cases in Houston.

But BD's really happy about one thing...

Case dismissed. Game over. Party rock. Etc.

By Avi S. Adelman under Neighborhoods , Legal issues