Monsarrat v Zaiger: Game Moves to the Next Level

Monsarrat v Zaiger: Game Moves to the Next Level 
by Susan Basko, esq.

UPDATE October 28, 2017.  It is quite hilarious/ pathetic watching Brian Zaiger waste what little money he does have for litigation on doing battle with the basic civility of the Court.  He seems to be trying to turn this court case into an extension of his defamation-shock website, Encyclopedia Dramatica.  But Chief Judge Patti Saris is not having it.

If you recall from the post below, Jonathan Monsarrat filed a Motion requesting to file an Amended Complaint that named only Brian Zaiger as the defendant, and also requested to seal  two exhibits that contained material that is inappropriate to be placed publicly onto the internet anywhere, let alone on ECF, the Electronic Court Filing system.  Mr. Monsarrat had no choice but to file these exhibits, since they are the scandalous defamatory materials "about" Monsarrat that Zaiger had posted on his website, Encyclopedia Dramatica.  The proper protocol in filing exhibits containing improper materials is to file a motion to file them under seal. 

Now, of course the Court was going to allow Jonathan Monsarrat to file an Amended Complaint naming only Brian Zaiger, as the plaintiff is required to remove unnamed Does and is allowed to amend the complaint to clarify and update it.

And of course the Court was going to allow the sealing of scurrilous, harmful exhibits.  Following FRCP 12(f), the Court can strike "any redundant, immaterial, impertinent, or scandalous matter." A party who must file such material is best off to file such material under seal.  Most district courts leave this up to the expected common sense and civility of the lawyers, while at least one district court has codified the expectation in its local rules.  The Federal District of South Carolina Local Rule 13.4.3 (j) states that materials to be sealed includes "information or materials which would otherwise be inappropriate for display or distribution through the PACER or ECF System (including materials with graphic, pornographic, obscene, or scandalous content.)"  Virtually everything on Encyclopedia Dramatica fits one of more of those adjectives.  So, of course the Court was going to allow Jonathan Monsarrat to file the exhibits under seal.  

Rather than respecting the basic civility expected of parties and their lawyers, instead, Brian Zaiger filed a whole flurry of court documents claiming that Jonathan Monsarrat was only trying to seal these scandalous exhibits because he did not want "criticism" of himself to be shown publicly.  And therein lies the crux of the problem -- Brian Zaiger thinks scandalous lies and defamation are "criticism." Brian Zaiger thinks calling a respectable person a "pedophile" is criticism.  Brian Zaiger thinks the victims of his website are required to perpetuate the lies and filth from Encyclopedia Dramatica by posting them publicly while in the course of trying to salvage oneself from Zaiger and his ED cesspool.

So, rather than just accept the inevitable filing of the exhibits under seal, Zaiger filed this stuff:

MEMORANDUM in Opposition re45 MOTION to Seal Document43 MOTION to Amend1 Complaint filed by Brian Zaiger.(Wolman, Jay)
Att: 1   Exhibit 1 - Wolman Declaration,
Att: 2   Exhibit 2 - Compliance Policy,
Att: 3   Exhibit 3 - $160 Million DotCom Icon,
Att: 4   Exhibit 4 - US Patent 7647351,
Att: 5   Exhibit 5 - Answers to Interrogatories - Redacted

and then Monsarrat asked the Court if he could reply to that nonsense:

MOTION for Leave to File by Jonathan Monsarrat.(Goren, Richard)
Att: 1   Exhibit A PROPOSED REPLY

and then Judge Patti Saris granted Monsarrat the right to file that REPLY:

Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting48 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Geraldino-Karasek, Clarilde)

and then Jonathan Monsarrat took that permission and filed his REPLY to Zaiger's RESPONSE to Monsarrat's Motion to file the scandalous and inappropriate Exhibits under seal (which would always be granted):

REPLY to Response to45 MOTION to Seal Document43 MOTION to Amend1 Complaint filed by Jonathan Monsarrat. (Goren, Richard)

and then Monsarrat also had to file to strike the scandalous matter from Zaiger's filing:

 Emergency MOTION to Strike47 Memorandum in Opposition to Motion, by Jonathan Monsarrat.(Goren, Richard)

and with that, Monsarrat had to file an Affidavit supporting that Motion to Strike the inappropriate materials filed by Zaiger.  By this time, it should be apparent that Zaiger's goal was to have on the open court record materials that were being interposed for the purpose of trying to embarrass or humiliate or scandalize Monsarrat:

AFFIDAVIT in Support re51 Emergency MOTION to Strike47 Memorandum in Opposition to Motion, filed by Jonathan Monsarrat. (Goren, Richard)

Next up, Zaiger filed a Motion to Strike Monsarrat's papers, and included with it a set of Exhibits, each more ludicrous and inappropriate than the next.  Among them was the Wikipedia entry on PedoBear.  That's right -- nothing says "credible" like filing in federal court a picture and write-up on a chubby cartoon bear that molests children.

MEMORANDUM in Opposition re51 Emergency MOTION to Strike47 Memorandum in Opposition to Motion, filed by Brian Zaiger.(Randazza, Marc)
Att: 1   Exhibit A - Harvard Law Record Article,
Att: 2   Exhibit B - Monsarrat v Filcman Exs 15-16,
Att: 3   Exhibit C - Pedobear - Wikipedia,
Att: 4   Exhibit D - Somerville artist arrested - Article,
Att: 5   Exhibit E - Daily Dot Article,
Att: 6   Exhibit F - Emails between counsel,
Att: 7   Affidavit /Declaration of Trey A. Rothell

Next up, Jonathan Monsarrat's lawyer, Richard Goren, filed an Affidavit in support of the Amended Complaint and the Sealing of the scurrilous materials:

AFFIDAVIT of PLAINTIFF'S COUNSEL RICHARD GOREN in Support re45 MOTION to Seal Document43 MOTION to Amend1 Complaint filed by Jonathan Monsarrat.(Goren, Richard)
Att: 1   Exhibit A EMAIL CHAIN

Then Chief Judge Patti Saris endorsed an order allowing Jonathan Monsarrat to file his amended complaint, which is his right and which was inevitable.  When a Judge "endorses" an Order, it means he or she finds the issues and arguments so inevitable or so feeble as to not even require anything other than the word "Granted" or "Denied." In this case, it was inevitable that Jonathan Monsarrat would be allowed to file his Amended Complaint.

Chief Judge Patti B. Saris: Endorsed ORDER entered granting43 MOTION to Amend 1 Complaint (Geraldino-Karasek, Clarilde)

and then, Chief Judge Patti Saris also granted Monsarrat's Motion to Seal the Exhibits that were of a scandalous and inappropriate nature.  This also was inevitable in keeping with the civility and decency of the Court.

Chief Judge Patti B. Saris: Endorsed ORDER entered Allowed45 MOTION to Seal Exhibits C and D (Geraldino-Karasek, Clarilde)

Then the Judge entered an Order saying the Motion to Strike was moot (no longer needed) since Monsarrat had been granted the right to file his Amended Complaint with several exhibits sealed:

Chief Judge Patti B. Saris: ELECTRONIC ORDER entered finding as moot pursuant to orders entered55 and56 as to51 MOTION to Strike (Geraldino-Karasek, Clarilde)

AND FINALLY, Jonathan Monsarrat filed his Amended Complaint with the scandalous exhibits sealed from public view:

AMENDED COMPLAINT against Brian Zaiger, filed by Jonathan Monsarrat.(Goren, Richard)

SO.. How much money did Brian Zaiger spend -- and force Jonathan Monsarrat to spend -- to try to battle off Monsarrat's basic right and requirement to file an Amended complaint?  How much did Zaiger spend trying to force Jonathan Monsarrat to publicly file scandalous materials that defame and degrade himself?  It is beyond mysterious why Zaiger thinks he has the right to have such materials on his website, and even more mysterious why he thinks the federal court system would stoop to his level. 

 I estimate that this nonsense cost the parties well in excess of $10,000, and in addition, used up valuable Court time -- but not too much court time, since this Judge seems to be able to quickly sort though heaps of nonsense.  

In this court case, Brian Zaiger has proliferated his attitude of disrespect for the dignity of others and the decency and civility of society that he has demonstrated thoroughly for years on Encyclopedia Dramatica. There was absolutely no point in trying to keep the scandalous materials unsealed, other than to use them to try to further harass and defame the plaintiff, Jonathan Monsarrat.  How is that pointless maliciousness worth thousands of dollars to Zaiger? I thought he was begging for donations to his litigation fund.  

Zaiger's attempt to turn the court file into a mini version of Encyclopedia Dramatica failed.  

 * * * * * * * 

October 20, 2017
. Look out, Zaiger! Jonathan Monsarrat filed a flurry of court papers the past few days.  He is asking the Court to dismiss the Doe defendants, which is required by the rules if they have not yet been named and served.  He is also asking the Court to proceed with only Brian Zaiger as a defendant, as the owner of Encyclopedia Dramatica.

This first document is the Motion where Jonathan Monsarrat asks the Court to amend the Complaint to drop the Does and let him tangle with Brian Zaiger.   He requests a hearing, but it is not likely a hearing would be needed since this is a rather rote request. 

This next document is the Complaint with only Zaiger's name as a Defendant.  This would be the "amended complaint."  Are there other changes to the Complaint?  We'd have to go back and compare and to be honest, I don't care enough to do that - but if you want to,  you can find the original complaint here:  MONSARRAT V ZAIGER ORIGINAL COMPLAINT.

(ooooh. . . I did look and they are quite a bit different.  I may do an upcoming post with an analysis of what has changed.)

The odd thing about this is that it looks like it is scanned off a paper document.  This is odd because the federal courts use electronic filing, and surely Mr. Goren, who is Jonathan Monsarrat's lawyer, must have an electronic file of this Amended Complaint. Why they'd be filing an electronic file of a scanned paper document is quite the mystery -- but hey, they're in Massachusetts, where BLASPHEMY is still a crime on the books -- so anything odd could happen there.

Someone wrote in asking what is blasphemy.  Blasphemy is when a person says something that irks God, and God strikes them with lightning or sends locusts or raging fires.  The State of Massachusetts is untrusting that God will smote the offending person, and thus allows the State the option of charging the person with a crime. The legislators in Massachusetts are afraid to discuss changing the law, because that might irk God, and they could all be stricken by lightning or charged with a crime, whichever comes first.  The first rule of Blasphemy Club is that you can't talk about blasphemy.

This third document, below, is the Memorandum supporting the need for an Amended Complaint.  The highlight of this (if there is one) is that at a Scheduling hearing, Mr. Zaiger stated that he is the owner of Encyclopedia Dramatica and that the offending materials were removed off the site, and that he would not settle unless his legal fees were paid by Mr. Monsarrat.   These are clueless statements because this garbage about Mr. Monsarrat was up on ED before and he went to the trouble then to get it removed, only to have it reappear years later; and the point of this lawsuit is no doubt to make Zaiger pay for being an internet asshole, the legal qualifications and definitional parameters of which have been well met by Mr. Zaiger, according to experts in that field, several of whom could be called upon to testify at trial.

In addition, Mr. Monsarrat filed several more papers, in which he requests to have several exhibits filed under seal and then explains what they are.  Those are the exhibits that are left as blank pages in the Amended Complaint.  Those exhibits are the scurrilous postings made "about" Mr. Monsarrat on Encyclopedia Dramatica, including some elements that might be considered child pornography.  Since it is illegal to spread such materials around, they were filed under seal.

It's not likely any of this will require a hearing, unless Brian Zaiger files a response objecting to any of this. If he objects to being the only defendant, it would be up to him to name who else is responsible for the content of the site.

Monsarrat v Zaiger is a Copyright infringement lawsuit, where there is no Section 230 immunity for the website or its owners, as there might be in a defamation case.  That leaves the responsibility with Brian Zaiger, the owner of Encyclopedia Dramatica (ED).  If ED had named an agent for  Digital Millennium Copyright Act (DMCA) complaints, then ED would have had the benefits of a safe harbor provision, where the site would have to first be contacted and allowed to remove the allegedly infringing materials.  It appears as if ED had a named DMCA agent in the past, but did not have one at the time Monsarrat filed his complaint.

The laws regarding DMCA Agents recently changed.  Any site that previously had a named agent was required to file a new form.  The good part is that agents are now named on an electronic form and the price was drastically reduced to around $25.  You can find the old and new DMCA Directories, as well as the Registration forms, HERE.  What this means is that if you register a DMCA Agent, that is, a contact person for your website, then if you are infringing on someone's copyright, they have to first notify your agent to remove the infringing materials.  If you do not register a DMCA Agent with the U.S. Copyright Office, then the owner of the Copyright-registered materials can go ahead and sue you. This provision for contacting the DMCA Agent first is called a Safe Harbor, and it can protect you and your website from Copyright lawsuits. It takes about 10 minutes and $25 to name an Agent.  You can be the Agent for your own site.

Stay tuned for further adventures in Monsarrat v Zaiger.

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