Reply Brief - Slate v. American Broadcasting Companies, Inc., Et Al.

ORAL ARGUMENT NOT YET SCHEDULED
__________________________

NO. 13-7080
__________________________

IN THE UNITED STATE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
__________________________

Gregory Slate,
Plaintiff-Appellant
v.
American Broadcasting Companies, Inc., et al.,
Defendants-Appellees
________________________

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA
CASE NO. 1:09-CV-01761
__________________________

PLAINTIFF-APPELLANTS REPLY BRIEF
__________________________

GREGORY A. SLATE
POST OFFICE BOX 21020
WASHINGTON, DC 20009
TELEPHONE: (202) 907-7526

ORAL ARGUMENT REQUESTED

Case being consider for treatment pursuant to rule 34(j) of the courts rules.
USCA Case #13-7080 Document #1504316 Filed: 07/24/2014 Page 1 of 43
TABLE OF CONTENTS
Page
SUMMARY OF ARGUMENT ...................................................................... 1

ARGUMENT .................................................................................................. 1

I. DEFENDANTS ALTERNATE STATEMENT OF FACTS AND ISSUES .. 6
II.
a. COUNSELS PATTERN OF FABRICATED ALLEGATIONS OF
MISCONDUCT ......................................................................... 6

i. FABRICATED LICENSING AGREEMENT & HACKING
ALLEGATIONS .............................................................. 6

ii. THE ABUSE OF PROCESS ACCUSATIONS ....................... 7
1. DIOP KAMAU ..................................................... 8
1. TYRA RASMUS ................................................. 12
2. GREG MILLER .................................................. 14
3. THE ANCHOR ................................................... 14
4. NATHAN SIEGEL .............................................. 14

iii. THE CONTRADICTORY EXCREMENT ALLEGATIONS 14

III. SUMMARY J UDGMENT ............................................................... 15

a. DISPUTED FACTS .................................................................. 15
i. THE EMAILS DO NOT FORM AN AGREEMENT ........... 15
ii. MR. SLATE IS AN INDEPENDENT FREELANCE
J OURNALIST AND ABC ALWAYS DEALT WITH HIM AS
A FREELANCER .................................................... 19

b. EQUITABLE ESTOPPEL FAILS ................................................ 21

i. DEFENDANTS CITE AN UNPUBLISHED DISPOSITION IN
VIOLATION OF THIS COURTS RULES ......................... 21
ii. DEFENDANTS CONCEDE ESTOPPEL CANNOT BAR
OTHER CLAIMS .......................................................... 22

c. DEFENDANTS NEW AFFIRMATIVE DEFENSES FAIL ............. 24

i. WORK-FOR-HIRE FAILS ............................................. 24
1. SLATE OWNS THE FOOTAGE BECAUSE HE
CREATED AND COPYRIGHTED IT ...................... 24

ii. THERE IS NO IRREVOCABLE IMPLIED LICENSE ........... 25
1. ANY LICENSE WAS REVOKED BEFORE THE
INFRINGEMENT ................................................ 25
2. ABCS MATERIAL BREACH RESCINDED ANY
IMPLIED LICENSE ............................................. 26
3. ABC EXCEEDED ANY IMPLIED LICENSE ......... 26

iii. DEFENDANTS UNCLEAN HANDS DEFENSE FAILS ...... 26

IV. MOTION TO DISMISS .................................................................. 27

a. DEFENDANTS FABRICATED ALLEGATIONS OF MISCONDUCT
............................................................................................. 28
i. ABCS ADMISSION THAT IT DOES NOT OWN THE
COPYRIGHT WAS NOT FRAUDULENTLY COLLECTED 28
ii. ABUSE OF PROCESS .................................................... 29

b. ANY MISCONDUCT CAN BE REMEDIED SHORT OF DISMISSAL
............................................................................................. 29
CONCLUSION .......................................................................................... 34

CERTIFICATE OF COMPLIANCE WITH TYPEFACE AND
WORDCOUNT LIMITATIONS ...............................................................36

CERTIFICATE OF SERVICE...................................................................36
TABLE OF AUTHORITIES
Page
Cases
ASSET MARKETING SYSTEMS, INC. V. GAGNON, 542 F.3D 748, 757 (9TH CIR. 2008) ...........25
ATKINS V. FISCHER, 331 F.3D 988, 991 (D.C. CIR. 2003). 23, 26
Avtec Sys. Inc. v. Peiffer, 21 F.3d 568, 574 n. 12 (4th Cir.1994).....25
AYMES V. BONELLI, 980 F.2D 857, 863 (2D CIR.1992).....24-25
CLARK V. THE WALT DISNEY CO., 748 F. SUPP. 2D 792, 797 (S.D. OHIO, 2010) ......................... 27
Coleman v. ESPN, Inc., 764 F.Supp. 290, (S.D.N.Y.1991)...24
*COMMUNITY FOR CREATIVE NON-VIOLENCE V. REID, 490 U.S. 730, (1989).24-25
Effects Assoc. v. Cohen, 908 F.2d 555, 558 (9th Cir.1990)...26
ESTATE OF HEVIA V. PORTRIO CORP., 602 F.3D 34, 40 (1ST CIR. 2010) ................................... 25
Express Indus. and Terminal Corp. v. New York State Dep't of Transp., 715 N.E.2d 1050, 1053
(N.Y. 1999).................................................................................................................25
GENER-VILLAR V. ADCOM GROUP, INC., 560 F. SUPP. 2D 112 ( D.P.R. 2008) ............................. 25
GREGORY SLATE V. DIOP KAMAU, DC SUPERIOR COURT, CASE NO. 09-CA-5749. .................... 11
Hickey v. Scott, 738 F. Supp. 2d 55, 71 (D.D.C. 2010)...34
IAE, INC. V. SHAVER, 74 F.3D 768, 775 (7TH CIR.1996) ............................................................... 25
J ustmed Inc. v. Byce, 600 F.3d 1118, 1126 (9th Cir. 2010)......24-25
KIRK V. HARTER, 188 F.3D 1005, 1009 (8TH CIR.1999) ................................................... 24-25
*Latimer v. Roaring Toyz, Inc., 601 F.3d 1224 (11th Cir. 2010)...26
LITTLE MOLE MUSIC V. SPIKE INVESTORS, INC., 720 F.SUPP. 751, 754-55 (W.D.MO.1989) ....... 24
*Ludden v Metro Weekly, 8 F. Supp. 2d 7, 18. (D.D.C. 1998)......24
MCCREADY V. NICHOLSON, 465 F.3D 1, 7 (D.C. CIR. 2006). .......................................................... 5
McIntosh v. Northern California Universal Enterprises Co., 670 F. Supp. 2d 1069 (E.D. Cal.
2009)...25

MED. LAB. MGMT. CONSULTANTS V. AM. BROAD. COMPANIES, INC., 306 F.3D 806, 824 (9TH CIR.
2002)...27

METRO-GOLDWYN-MAYER STUDIOS, INC. V. GROKSTER, LTD., 518 F. SUPP. 2D 1197 (C.D. CAL.
2007) .............................................................................................................................................. 25

MOROWITZ V. MARVEL, 423 A.2D AT 198 .................................................................................... 29
OTTO V. RIES, 743 F.2D 630, 634 (9TH CIR. 1984) ........................................................................ 26
PINKHAM V. SARA LEE CORP., 983 F.2D 824, 829 (8TH CIR. 1992) .............................................. 24
PYE V. MITCHELL, 574 F.2D 476, 481 (9TH CIR.1978) .................................................................. 24
Recursion Software, Inc. v. Interactive Intelligence, Inc., 425 F. Supp. 2d 756 (N.D. Tex. 2006)
.....25

SCOTT V. DIST. OF COLUMBIA, 101 F.3D 748, 755 (D.C.CIR.1996) .............................................. 29
SEPTEMBERTIDE PUB., B.V. V. STEIN & DAY, INC., 884 F.2D 675, 678 (2D CIR.1989) ................ 26
Shangold v. Walt Disney Co., 275 F. App'x 72 (2d Cir. 2008).27
Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1075 (D.C. Cir. 1986)...31
*Shepherd v. Am. Broad. Companies, Inc., 62 F.3d 1469, 1473 (D.C. Cir. 1995.7, 27-8, 31-2
SHORTALL V. WALT DISNEY WORLD HOSPITALITY, 997 SO.2D 1203 (FLA. 5TH DCA 2008) ..27
SINDRAM V. CIRCUIT CITY, 1992 U.S. DIST. LEXIS 18857, AT *6 (D.D.C. DEC. 13, 1992)..34
SMITHKLINE BEECHAM CONSUMER HEALTHCARE, L.P. V. WATSON PHARMACEUTICALS, INC.,
211 F.3D 21, 25 (2D CIR.2000) ...................................................................................................25

STEPHEN SLESINGER, INC. V. WALT DISNEY CO. (2007) 155 CAL.APP.4TH 736, 66 CAL.RPTR.3D
....................................................................................................................................................... 27

TETER V. GLASS ONION, INC., 723 F. SUPP. 2D 1138, 1150 (W.D. MO. 2010) .............................. 25
Triune Star, Inc. v. The Walt Disney Company, WDIG Mobile, LLC, No. 071256, 2008 WL
5068943 (C.D.Ill. Nov. 25, 2008)...27

ULLOA V. UNIVERSAL MUSIC AND VIDEO DISTRIBUTION CORP., 303 F. SUPP. 2D 409, 412
(S.D.N.Y. 2004) ..........................................................................................................................25

Vigil v. Walt Disney Co., 232 F.3d 911 (Fed.Cir.2000)27

Statutes

17 U.S.C.,
102 ........................................................................................................................... 24-25
201(A) ...................................................................................................................... 24-25
201(b) ....................................................................................................................... 24-25
204(A) ...................................................................................................................... 24-25

Other Authorities

3 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright 13.08 at 139 (1992) ................................................................................ 24
GLOSSARY OF ABBREVIATIONS AND ACRONYMS

ABC ............................................................AMERICAN BROADCASTING COMPANIES, INC.

DA BR. ............................................................................ DEFENDANTS-APPELLEES BRIEF

S.A. ................................................. DEFENDANTS-APPELLEES SUPPLEMENTAL APPENDIX

PA .............................................................................. PLAINTIFF-APPELLANTS APPENDIX

PSA ..................................... PLAINTIFF-APPELLANTS SUPPLEMENTAL APPENDIX

DEF. SJ MEMO ................................................. DEFENDANTS MEMORANDUM IN SUPPORT
OF MOTION FOR SUMMARY J UDGMENT

SUMMARY OF ARGUMENT
Defendant seek to avoid adjudication of this case on the merits and
conclude their brief by imploring this court to affirm the dismissal sanction
without reaching the merits of the summary judgment ruling. DABr. at 61. That
is because defendants have no means of defending this case on the merits and
must contrive allegations of misconduct against plaintiff to defend against his
claims. In order to portray plaintiff as a villain who should be denied access to
the courts, defendants and their counsel misrepresent, embellish, and omit
critical facts in their brief.
To support its motion to dismiss for discovery misconduct, defense
counsel, Nathan Siegel repeated misrepresents to this court that Mr. Slate
threatened ABCs counsel personally with civil lawsuits. Id page 3, 33, and
58. Siegel doesnt offer any evidence to support his assertion because it is not
true. Id. Siegel omits critical context for his accusation which explains why he
likely feared a lawsuit even though Mr. Slate never threatened one. Siegel fails
to mention that his apprehension regarding potential legal action was
precipitated by Siegels physical assault on Mr. Slate during a deposition
hearing.
The deposition video demonstrates Siegels assault on Mr. Slate and it is

1
embedded in this brief for the courts convenience.

PSA001
During the deposition and in his response to Mr. Slates motion for
sanctions Siegel described his conduct as an error in judgment, a mistake,
and apologized. Dkt.69 at 14; PSA002 (Siegel in an email to Mr. Slate, I
apologize to you again for taking the document I gave to you before back from
you,). Ultimately, Siegel apologized profusely in open court and begged for the
courts forgiveness at the subsequent hearing. Mr. Slate never threatened or
pursued any action, but now Siegel attempts to cast his error in judgment as
somehow misconduct on the part of Mr. Slate. This is a pattern, each time
Defendants are confronted with their own misconduct or damaging evidence
they misrepresent facts and the record to reframe it as litigation misconduct by
Mr. Slate. The facts and record simply do not support Defendants
phantasmagorical fictionalization of the history of this litigation. Defendants
repeat this pattern with their claims that Mr. Slate forged notes and a letter
that has little bearing on this case.
2
Defendants mislead the court again when they allege that Mr. Slate tried
to lure counsel to an abandoned house and conduct depositions at a
boarded-up row house. The reality is much different than counsels
misrepresentations. The abandoned house was in fact the location where
originals of documents already duplicated and produced to Defendants were
stored. Mr. Slate did not lure counsel there rather he was accommodating their
request to inspect originals. The boarded-up row house was in fact Mr. Slates
house that happened to have plywood over a recently broken attic window when
defense counsel came by to photograph it to include in his next motion.
Even more egregiously, ABC improperly asserts the bald implication that
Mr. Slates counsels withdraw and the previous trial judges recusal were
related to ABCs frivolous allegation of fraud. DA.Br. page 20. Defense counsel
offers nothing to support this heinous and unfounded implication. In fact, the
judge recused himself only after consultation with the bar association regarding
aspects of attorney-client compensation and having become necessarily
informed of the details of ABCs settlement offer to Mr. Slate during the ex
parte hearing. Defendants misrepresentations, omissions, hyperbole, and
improper implications are more fully addressed below. What is obvious from
Siegels relentless attacks on Mr. Slate, that are ultimately irrelevant to the case,
3
is that counsel attacks Mr. Slate personally because he cannot attack his claims
legally.
Defendants have all but abandoned defending the application of equitable
estoppel in this case. Defendants do not even attempt to explain how equitable
estoppel (a novel interpretation even according to defense counsel) could be
applied to bar plaintiffs claims for copyright infringement and contributory
copyright infringement against the other defendants in this case. Instead,
defendants spend most of their brief arguing that this court should adopt one of
their other unsupported affirmative defenses of implied license, work-for-hire,
or unclean hand.
Defendants work-for-hire arguments fail because there is no writing to
support a work-for-hire agreement and ABC knew that Mr. Slate was an
independent freelance journalist. Implied license is not applicable in this case
because all of the factors for determining an implied license weigh against
Defendants. Even assuming arguendo that an implied license existed at some
point, the record reveals that any such license would have been withdrawn well
before the infringing broadcast, ABCs material breach in failing to give Mr.
Slate credit for his work rescinded any alleged implied license, and ABC
exceeded the scope of any implied license when it purported to license Mr.
4
Slates work to other parties that reproduced it on DVDs, the internet, and
abroad in international television broadcasts.
Ultimately, defendants rely on their unclean hands defense which merges
with their arguments for dismissal as a sanction. Defendants rely on sanctions to
dispose of this case because it is impossible for them to defend it on the law.
This court should focus on the legal issues presented and not be distracted by
ABCs shocking but unsupported and irrelevant attacks on Mr. Slates character.
ARGUMENT
I. Defendants Alternate Statement of Facts and Issues
Defendants alternately claim that the record as they portray it is either
undisputed or that there is no genuine dispute. DABr 3 and 35. Defendants
recognize that plaintiff has put substantial evidence before the court to dispute
defendants version of the facts because they spend much of their brief attacking
the credibility or admissibility of the evidence offered by plaintiff. When all
inferences are viewed in a light most favorable to plaintiff the court must
conclude that summary judgment and dismissal were inappropriate and remand
this case to the district court. McCready v. Nicholson, 465 F.3d 1, 7 (D.C. Cir.
2006).
a. Counsels Pattern of Fabricated Allegations of Misconduct
i. Fabricated Licensing Agreement & Hacking Allegations
Defendants fabricated the existence of a licensing agreement and even
falsely alleged that it was signed by Mr. Slate; defendants then accused Mr.
5
Slate of hacking into a computer system and deleting this blatantly fabricated
and non-existent licensing agreement. PA244. The fabricated licensing
agreement and hacking allegation was the pretext for a supposed criminal
investigation that Defendants then menaced Mr. Slate with to intimidate him
into abandoning his copyright claim and needlessly delay the resolution of his
claim. PA244 (ABCs letter to Mr. Slates counsel stating, During the time that
your client is being criminally investigated amid allegations that he stole the
very document that disproves his copyright claim, we decline your invitation to
resolve this matter.)
Defendants now concede that no such licensing agreement ever existed
and have abandoned their false hacking claim. Defendants have never
produced any records related to any criminal investigation nor is there any
evidence that one was ever conducted. Defendants merely fabricated a
licensing agreement, the hacking allegation, and the criminal investigation
for the primary purpose of threatening and intimidating Mr. Slate into dropping
his copyright claims.
The fabrication of a licensing agreement and hacking allegation were only
the first of dozens of demonstrably false allegations defendants would make to
avoid liability for their knowing and wilful infringement. That defendants first
action in defending against this claim was to manufacture evidence and falsely
6
accuse Mr. Slate of serious criminal misconduct demonstrates telling context for
the false allegations that compose the pretext for their motion to dismiss.
Defendants fabrication of the licensing agreement signaled their litigation
strategy of manufacturing misconduct to support a motion to dismiss. The reality
is that Mr. Slate never signed a licensing agreement or hacked any computer
and when it became obvious Defendants could no longer advance this claims
they began falsely accusing Mr. Slate of forgery. That the district court has
found that ABC or its attorneys have fraudulently altered evidence and harassed
witnesses in other cases is evidence of defendants willingness to engage in
illegal and unethical practices to defend against legitimate claims. Shepherd v.
ABC, 151 F.R.D. 179, 182, 18789 (D.D.C.1992).
ii. The Abuse of Process Accusations
Defendants urge this court to affirm the district courts dismissal of
Plaintiffs action based on Defendants allegations that Plaintiff abused process
by seeking injunctions against their key witness Diop Kamau and his wife Tyra
Rasmus. Defendants further allege that Plaintiff should be sanctioned in this
litigation for having Rasmus held in contempt of court and because Kamaus
private investigator, Greg Miller, was arrested for assaulting Plaintiff. Finally,
Defendants assert Mr. Slate abused process by attempting to depose the anchor
of the infringing broadcast. The clear and unambiguous findings of fact and law
7
of the relevant courts that Plaintiff requested this Court take judicial notice of
demonstrate that no abuse of process has occurred.
1. Diop Kamau
To discourage plaintiff from pursuing his copyright infringement claims
defendants key witness Diop Kamau has relentlessly tormented plaintiff by
physically threating Mr. Slate and his family; creating websites such as
www.gregslate.tv, www.copyrightthisbitch.com,
www.lifesentenceontheinternet.com, www.youfuckingcoward.com to defame
and humiliate Plaintiff; posting Mr. Slates social security number, and home
address on those websites; posting on those websites photographs and audio of
Mr. Slate surreptitiously taken during hearings and depositions in this case and
others; subjecting plaintiff to scorn and ridicule by falsely claiming on the
internet that plaintiff is a felon; and, impersonating plaintiff to public officials.
PA163. With few exceptions, Kamau admits to harassing plaintiff as described
above.
Perhaps the best evidence of Kamaus harassment of plaintiff are the
audio recordings of Kamau impersonating Mr. Slate produced by Kamau in
response to defendants subpoena. In the recording, embedded below for the
courts convenience, Kamau is heard calling a city housing inspector responsible
for the area where plaintiff owns several rental properties, impersonating Mr.
8
Slate, and claiming, the message is from Greg Slate. J ust tell her I am not
doing anything and to stop calling me.
Id; PSA003.
Indeed, the court need only look to Kamaus own deposition to
understand that Kamau is not ashamed of his relentless campaign of
harassment and intimidation against Mr. Slate. PSA004 Kamau Dep. 363:18.
When questioned at his deposition about his websites dedicated to disparaging
plaintiff Kamau explained,
Id 363:13-24.
9
Should any doubt remain concerning the lengths Kamau will go to shut
down his enemies the court need only hear Kamaus detailed explanation of the
prostitution-blackmail ploy he executed against his former business associate:

Id. 343:23-344:24; PSA005
Kamau goes on to explain that after filming his associate having sex with
a prostitute he put the video on the internet. Kamaus own words:

Id. 345:04-19; PSA006
Notwithstanding, Kamaus acknowledgement of his outrageous
harassment of plaintiff, defendants boldly claim that plaintiff abused process
by seeking and obtaining an injunction against Kamau. Defendants claim of
abuse of process is directly refuted by the Superior Court of the District of
Columbias finding of which plaintiff requests this court take judicial notice.
PSA007-8. On September 12, 2009 District of Columbia Superior Court granted
10
plaintiff an injunction against Kamau in the matter of Gregory Slate v. Diop
Kamau, Case No. 09-CA-5749.
Bizarrely, defendants attempt to impute an abuse of process to Mr. Slate
for the independent action of a metropolitan police detective in requesting a
warrant for Kamau. Even stranger is defendants claim that Mr. Slate abused
process when a superior court judge granted the detectives request for a warrant
to arrest Kamau. These claims relate to a warrant issued for Kamau after he
threatened Mr. Slate on the eve of his noticed deposition in this case as
described below.
After Kamau was enjoined from continuing to harass plaintiff, defense
counsel noticed plaintiffs deposition to be held on J une 10, 2010. On J une 9
Kamau posted a thinly veiled threat against plaintiff on the internet. PSA009.
Prompting Detective Morales to seek a warrant for Kamau for contempt of
court. Id. Kamaus threat:
11
Id.
On August 26, 2010 J udge Abrecht granted Detective Morales request
and issued an arrest warrant for Kamau. PSA010; Dkt. 61-8. Mr. Slate did not
compel Kamau to post threats on the internet or force Detective Morales or
J udge Abrecht to issue a warrant for Kamau. All of them acted independently of
Mr. Slate but defendants desperately try to spin the fact that their key witness is
a fugitive for blatantly obstructing justice in this case into misconduct by Mr.
Slate.
1. Tyra Rasmus
Defendants have also claimed that plaintiff abused process when
attorneys at the District of Columbia Attorney Generals Office who
represented Mr. Slate sought an injunction to prevent Tyra Rasmus (AKA Tyra
Ferrell), Kamaus wife, from harassing plaintiff. After the court issued an
injunction preventing Kamau from continuing to publish websites disparaging
plaintiff Kamau transferred ownership of his websites to Rasmus. At her
contempt hearing Rasmus explained their scheme to circumvent the injunction.
In the portion of transcript reproduced below Rasmus explains that she believed
that the judge who issued the injunction against Kamau was incompetent in so
many ways and didn't understand the Internet Rasmus had to put the website in

12
her name to protect them from the courts order. PSA011
Id.
After hearing Rasmus explanation the court held her in contempt.
PSA012. Notwithstanding the courts findings, defendants assert the plaintiff
abused process when his attorney successfully moved to hold Rasmus in
contempt. Id. Defendants cannot assert abuse of process against Mr. Slate
premised on his initiation of successful litigation against Rasmus.

13
2. Greg Miller
Plaintiff incorporates by reference his arguments in section I(e) of his
Motion for J udicial Notice under the heading "Millers Action Against Plaintiff
was Dismissed along with the supporting record contained in the appendices as
if it were fully set forth herein. PSA015-16.
3. The Anchor
Defendants assert that Mr. Slate abused process by attempting to depose
Elizabeth Vargas the anchor of the infringing broadcast. As the anchor Ms.
Vargas is a witness with potentially relevant and discoverable information
concerning this case. Plaintiff noticed her deposition in good faith and in so
doing did not commit any litigation misconduct. Accordingly, Mr. Slate should
not be sanctions for noticing Vargas deposition.
4. Nathan Siegel
Plaintiff incorporates by reference his arguments above concerning the
allegation of abuse of process as to Siegel along with the supporting record
contained in the appendices as if it were fully set forth herein.
iii. The Contradictory Excrement Allegations
Tracing Siegels most insidious and revolting claim back to its origin to
reveal how it has morphed since he first manufactured it demonstrates the
liberties defense counsel is willing to take with the facts. Initially, Siegel
claimed that Slate produced documents stained with a substance that smelled
like excrement. Dkt. 26. Then, he changed his story claiming he received
14
documents laced with chemical stains that smell like excrement. Dkt. 39-1. In
his brief to this court Siegel now alternately claims he received either a single
envelope or tapes soiled with actual feces. DABr. page 3 (claiming plaintiff
produced thousands of meaningless documents and tapes soiled with
excrement); then, page 30 (he produced documents in a box containing an
envelope soiled with excrement).
Defense counsel offers no explanation for why his story becomes more
magnificent with each filing. Tellingly, defense counsel has never submitted a
copy of a single document soiled with excrement or demonstrating any sort of
stain. Never before his brief in this court has Siegel claimed he received tapes
soiled with excrement. Siegel has always hedged and qualified his assertions
claiming that he thought there was a substance or chemical stain that might
have smelled like excrement but that it has since dried out. Suddenly
without explanation but presumably to artificially bolster his defense of his
motion to dismiss Siegel now boldly inflates his grotesque tale.
II. Summary Judgment
a. Disputed Facts
i. The Emails do not Form an Agreement
The district court erroneously concluded that, [u]nder the terms of this
arrangementnegotiated through e-mail exchanges among Ruppel, Kamau, and
the plaintiffPCC was to be paid $2,000 for the first stage and $5,500 for the
second stage, in addition to expenses. Defendants cite only one email that they
15
attribute to Mr. Slate as the basis for asserting he participated in both the
formation and implementation of the alleged agreement. DABr. page 7. The
one sentence email read, We will get with you on Monday with a date.
S.A.0624.
First, these documents are not admissible. It is entered on the record
through Siegels declaration that demonstrates that he has no personal
knowledge of the document other than that it was an exhibit to Kamaus
deposition. Notably, Siegel was not present for Kamaus deposition and has no
firsthand knowledge of it.
Second, the district court has not cited one email that Plaintiff sent to
support its conclusion that Plaintiff negotiated with Ruppel and/or Kamau. The
sole basis for the district courts finding of fact is that the two emails discussing
terms purport to be cced to Plaintiff. S.A.1147-9. The purported email chain
occurs under the subject line The latest of which Defendants have produced
several versions. The email chain begins on May 23, 2007 with an email from
Glenn.A.Ruppel@abc.com to kamau@policeabuse.com and does not purport to
copy to Plaintiff. S.A.1148-9. The next email in the chain purports to be a reply
sent from kamau@policeabuse.com to Glenn Ruppel and cc: Greg Slate on
May 24, 2007. S.A.1147. Nothing in the record indicates what email address the
cc: Greg Slate line was sent to and there is insufficient evidence in the record
16
to conclude that it went to Plaintiff. The next email in the chains purports to be
sent on J une 19, 2007 from Glenn.A.Ruppel@abc.com to
kamau@policeabuse.com ccd to gslate@policeabuse.org. Id. Nothing in this
version of the email chain cited by the district court indicates the Plaintiff
replied to any of these emails, acknowledged them, or even received them.
In another version of the email chain produced by Defendants there
purports to be an additional email under the latest subject line purporting to be
a reply to Glenn.A.Ruppel@abc.com from kamau@policeabuse.com and ccd to
gslate@policeabuse.org on May 23, 2007. S.A.1140. In yet another version of
the latest chain of emails there purports to be an email sent on J une 19, 2007
from policeabuse-gslate@policeabuse.org to Glenn Ruppel but says nothing.
PA184. The name attached to the policeabuse-gslate@policeabuse.org is
policeabuse Pop Acct. Id. In this version of the chain
Glenn.A.Ruppel@abc.com replied to policeabuse-gslate@policeabuse.org on
J une 22, 2007 and then gslate@policeabuse.org replied to
Glenn.A.Ruppel@abc.com on J une 23, 2007. Id. These unexplained aberrations
in the email record are indicia of tampering with the gslate@policeabuse.org and
the policeabuse-gslate@policeabuse.org email addresses Defendants attribute to
Plaintiff.
17
Third, the record demonstrates that Plaintiff was not a party to the email
exchange or the negotiations. At his deposition Kamau testified that the
documents were emails between Kamau and Ruppel stating that it was an e-
mail that Glenn Ruppel sent me. Kamau Dep. 122:18-9. Even if, arguendo, the
emails are authentic and admissible they demonstrate that what Kamau and
ABC understood the agreement to be is not encompassed in the limited emails
that the district court finds constitute the whole of the agreement. For example,
that Plaintiff would receive producer credit on any broadcast was undeniably
part of any agreement that could conceivably have been reached. One of
Kamaus emails demonstrated that Plaintiff told Defendant that producer
credit was one of the conditions. S.A.1306; PA238. In another email
defendants attribute to plaintiff it is stated unambiguously that the creators of the
footage are to be credited as a co-producer on the story and any award
submissions. S.A.1379. Defendants 30(b)(6) designee testified that credit
was part of the compensation under the alleged arrangement. PA093 Ruppel
Dep. 63:15-20. Defendants nevertheless decided not to give Plaintiff credit
when the infringing broadcast received a national Headliner Award. According
to Ruppel, Mr. Slate did not receive credit because Mr. Slate threatened
defendants. PA089 (Ruppel Dep. 14:1015:16); PA095 (Ruppel Dep. 65:17-20).
18
The district court erroneously concluded that [a]ll of the plaintiffs e-
mail communications regarding planning for the first Chicago trip were sent to
and from the e-mail address gslate@policeabuse.org,. Even Defendants do not
contend that this statement is true and the statement is in direct conflict with the
portions of the record that the court cites to support it. The district court cites
Ruppel Decl.Exs. R1R5, ECF 93-9 to support this conclusion but R2-R5
purport to be emails sent to and from policeabuse-gslate@policeabuse.org
which Defendants attribute to Plaintiff. The Courts conclusion here simply
cannot be reconciled with the record of this case. S.A.0625-30. Defendants
own pleadings assert that there are numerous emails between [plaintiff] and
one or more ABC producers that are central to this case and were sent to and/or
from gslate@policeabuse.com. Dkt. 37 at 6. Yet the Court concludes that any
reference in the record documents to the .com is a typographical error. There
is no dispute that the gslate@policeabuse.com address existed. The only dispute
concerns who had access and control over this address.
ii. Mr. Slate is an Independent Freelance Journalist and
ABC Always Dealt with him as a Freelancer
The affidavit of Dorian Gibson, a journalist who worked closely with Mr.
Slate before and after the Cincinnati and Chicago investigation, is substantial
evidence in support of the fact that Mr. Slate always identified himself as an
independent freelance journalist to ABC and others. Defendants assert that the
19
entire Gibson affidavit is inadmissible hearsay. This is not true. Defendants
have failed to identify which portion of the Gibson Declaration they claim is
inadmissible hearsay. The portions of the affidavit wherein Mr. Gibson clearly
recounts hearing conversation between Mr. Slate and ABC employees wherein
he explicitly told ABC he was an independent freelance journalist are
obviously offered for the legal effect the statement had and not the truth of the
matter asserted. Each of the statements in the Gibson Declaration clearly falls
within the exemptions outlined in Fed. R. Evid. 801(c).
Next, Defendants boldly attempt to claim that Mr. Slates work in
Cincinnati which ABC never broadcast somehow establishes a prior course of
dealing between ABC and Mr. Slate. The record reflects that Plaintiff had been
working as an independent freelance journalist on his story about the Cincinnati
Police Department since April 2001 when he conceived of the idea during the
Cincinnati riots. Plaintiff has provided the court with copies of audio recordings
he made in and around April, 2001 which are irrefutable evidence of this fact.
Dkt. 95-15 at 13-24. Kamau testified that he had not even met Plaintiff by the
time Plaintiff began collecting audio footage of the Cincinnati Police, testifying
that he first met Plaintiff after his 18th birthday which was in April 2001.
Kamau Dep. 34:2436:19. By this time Plaintiff had already started his
investigation in Cincinnati and established himself as an independent journalist
20
through his work as a broadcast radio journalist and one of the youngest
freelance journalist to be credentialed by the Commission on Presidential
Debates. Dkt. 105-3 at 244.
That ABC now tries to belatedly inject itself in Mr. Slates Cincinnati
story after failing to option his footage is refuted by the record. It is clear that
Plaintiff worked in Cincinnati as an independent freelance journalist and ABC
understood this. Michael Mendelsohn, ABCs only employee in Cincinnati at
the same time as Plaintiff, identifies and refers to Plaintiff as an undercover
freelance cameraman in his memo concerning Cincinnati. PA149; PA182.
There is nothing in the record that supports the notions that Mendelsohn
understood Plaintiff to be a tester or ever called him that.
b. Equitable Estoppel Fails
i. Defendants Cite an Unpublished Disposition in Violation
of this Courts Rules
Defendants-Appellees brief cites Boardman v. County of Spokane an
unpublished disposition from the Ninth Circuit Court of Appeals as the only
support for their novel interpretation of equitable estoppel. This courts rules
bar citation of unpublished cases for this purpose. D.C. Circuit Rule 32.1(b)(2)
provides that:

Unpublished dispositions of other courts of appeals and district
courts entered before J anuary 1, 2007, may be cited when the
binding (i.e., the res judicata or law of the case) or preclusive effect
of the disposition is relevant. Otherwise, unpublished dispositions
21
of other courts of appeals entered before J anuary 1, 2007, may be
cited only under the circumstances and for the purposes permitted
by the court issuing the disposition, and unpublished dispositions of
district courts entered before that date may not be cited.

Ninth Circuit Rule 36-3(c) provides that unpublished dispositions and
orders of that court issued before J anuary 1, 2007 may not be cited except for
narrow purposes such as when relevant under the rules of claim or issue
preclusion.
Defendants-Appellees brief does not cite the unpublished Boardman
disposition for any purpose allowed by the DC or Ninth Circuit. Accordingly,
the unpublished disposition in Boardman should not be considered by this court.
ii. Defendants Concede Estoppel cannot bar Other Claims
Plaintiff has argued and Defendants have conceded that Defendant ABC
News, Inc. used the footage in its original May 16, 2008 broadcast, Defendant
Starwave Partners broadcast the footage on its website ABCNews.go.com,
Defendant Disney/ABC International Television, Inc. offered the footage for
sale on its website ABCSstore.com and on Amazon.com, and ABC News Inc.
further licensed Plaintiffs copyrighted footage to CanWest, which broadcasted
Plaintiffs copyrighted footage throughout Canada. Defs.s Responses to
Interrogatory 11; Dkt. 95-13 at 48. Even if the court concludes that equitable
estoppel is applicable, equitable estoppel cannot bar Plaintiff from bringing
copyright infringement and contributory copyright infringement suits against the
22
other entities to which Mr. Slate has undeniably made no representations
whatsoever. Equitable estoppel cannot act to give Defendant ABC News
permission to license Plaintiffs work to other entities. To do so would run afoul
of the Copyright Acts prohibition on transferring copyright ownership without
signed writing.
Courts have concluded that where such a writing does not exist, such as in
cases of implied license, the most that can be transferred is a nonexclusive,
nontransferable license. See e.g., Atkins v. Fischer, 331 F.3d 988, 991 (D.C. Cir.
2003). ABC News Inc. licensed Plaintiffs copyrighted work to Canwest, after it
was undeniably fully aware of Plaintiffs assertion of copyrights. Defs.s
Responses to Interrogatory 11; Dkt. 95-13 at 48. Then Defendants Starwave
Partners and Disney/ABC International Television, Inc. broadcast and sold
Plaintiffs copyrighted footage on the Internet after they were fully aware of
Plaintiffs assertion of copyright. Id. Therefore, even if equitable estoppel serves
to bar Plaintiffs claim against ABC News Inc. for copyright infringement for
the television broadcast, it cannot bar Plaintiffs claim against ABC News Inc.
for contributory copyright infringement and it cannot bar Plaintiffs claim
against Defendants Starwave Partners, Defendant Disney/ABC International
Television, Inc. for the infringements resulting from the broadcast and sale of
the footage on the Internet, on DVDs, and abroad.
23
Even if these Defendants were under the mistaken belief that their use of
the copyrighted work was authorized, they are still liable under the Copyright
Act. See, e.g., Pinkham v. Sara Lee Corp., 983 F.2d 824, 829 (8th Cir. 1992)
(holding that [t]he defendant is liable even for innocent or accidental
infringements because intent is irrelevant to liability for infringement). Accord
Coleman v. ESPN, Inc., 764 F.Supp. 290, 294 (S.D.N.Y.1991); Little Mole
Music v. Spike Investors, Inc., 720 F.Supp. 751, 754-55 (W.D.Mo.1989).
[E]ven where the defendant believes in good faith that he is not infringing a
copyright, he may be found liable. Pye v. Mitchell, 574 F.2d 476, 481 (9th
Cir.1978). The rationale, cited by many courts, is that as between two innocent
parties (i.e., the copyright owner and the innocent infringer) it is the latter who
should suffer since he, unlike the copyright owner, either has an opportunity to
guard against the infringement by diligent inquiry, or at least the ability to guard
against liability for infringement by an indemnity agreement from his supplier or
by an errors and omissions' insurance policy. Pinkham v. Sara Lee Corp., 983
F.2d at 829, citing 3 Melville B. Nimmer and David Nimmer, Nimmer on
Copyright 13.08 at 139 (1992).
c. Defendants New Affirmative Defenses Fail
i. Work-For-Hire Fails
1. Slate Owns the Footage because he Created and
Copyrighted it
24
Plaintiff incorporates by reference his arguments in section A(i)(1) of his
Motion For Leave to Exceed Page and Type-Volume Limitation under the
heading "Slate Owns the Footage because he Created and Copyrighted it along
with the supporting record contained in the appendices as if it were fully set
forth herein. Document #1503557.
ii. There is no Irrevocable Implied License
Plaintiff incorporates by reference his arguments in section A(ii) of his
heading "There is no Irrevocable Implied License along with the supporting
record contained in the appendices as if it were fully set forth herein. Document
#1503557
1. Any License was Revoked before the Infringement
A non-exclusive license is revocable absent consideration. See Avtec
Sys. Inc. v. Peiffer, 21 F.3d 568, 574 n. 12 (4th Cir.1994) (noting that an
implied license is necessarily nonexclusive and revocable absent
consideration). Plaintiff revoked any implied license in December, 2007,
when he informed producer Glenn Ruppel during their meeting that
Defendants required a license in order to use his footage, and again in
March, 2008, when he sent Defendants and Kamau a formal notice of
withdrawal of license. PA114; PA220; PA238; PA242; .
25
2. ABCs Material Breach Rescinded any Implied
License
Plaintiff incorporates by reference his arguments in section A(ii)(2) of his
heading "ABCs Material Breach Rescinded any Implied License along with
the supporting record contained in the appendices as if it were fully set forth
herein. Document #1503557
3. ABC Exceeded Any Implied License
An implied license is not a transfer of copyright ownership and
therefore is non-exclusive and non-transferable. See Atkins, 331 F.3d at 991
(noting that Section 204 of the Copyright Act invalidates attempted
transfers of copyright ownership made without a writing); see also Effects
Assocs., 908 F.2d at 558 n. 5. See also Valve Corp. v. Sierra Entertainment Inc.,
431 F. Supp. 2d 1091 (W.D. Wash. 2004) (A licensee who acts outside the
scope of a license to exploit copyrighted work infringes the copyright as if
there were no license at all.). Defendant ABC exceeded the scope of any
license when it licensed Plaintiffs footage to Starwave Partners and
Defendant Disney/ABC International Television, Inc., and CanWest for
international re-braodcast on the Internet, DVDs, and on television.
iii. Defendants Unclean Hands Defense Fails
26
Defendants unclean hands argument merges with their argument for their
motion to dismiss for litigation misconduct which is addressed more fully
below.
III. Motion to Dismiss
Defendants and their counsel are well versed in defending their own
discovery misconduct and asserting it against others. See Shepherd v. ABC, 151
F.R.D. 179, 182, 18789 (D.D.C.1992); See also, Stephen Slesinger, Inc. v. Walt
Disney Co. (2007) 155 Cal.App.4th 736, 66 Cal.Rptr.3d 268; Med. Lab. Mgmt.
Consultants v. Am. Broad. Companies, Inc., 306 F.3d 806, 824 (9th Cir. 2002);
Shortall v. Walt Disney World Hospitality, 997 So.2d 1203 (Fla. 5th DCA
2008); Vigil v. Walt Disney Co., 232 F.3d 911 (Fed.Cir.2000); Shangold v. Walt
Disney Co., 275 F. App'x 72 (2d Cir. 2008); Clark v. The Walt Disney Co., 748
F. Supp. 2d 792, 797 (S.D. Ohio, 2010); Triune Star, Inc. v. The Walt Disney
Company, WDIG Mobile, LLC, No. 071256, 2008 WL 5068943 (C.D.Ill. Nov.
25, 2008); Triune Star, Inc. v. Walt Disney Co., No. 071256, 2009 WL
1098762, at *1 (C.D.Ill. Apr.23, 2009). Litigation misconduct is the Defendants
stock-in-trade. Id. To often when defendants are unable to defend in litigation
they either fabricate evidence or manufacture allegations of discovery
misconduct against their adversary. That the district court has found that ABC or
its attorneys have fraudulently altered evidence and harassed witnesses in other
27
cases is evidence of defendants willingness to engage in illegal and unethical
practices to defend against legitimate claims. See Shepherd, 151 F.R.D. 179,
182, 18789 (D.D.C.1992).
a. Defendants Fabricated Allegations of Misconduct
i. ABCs Admission that it does not own the copyright
was not Fraudulently Collected
A senior account executive at ABCNEWS VideoSource wrote in an email
concerning the copyrighted footage at issue in this case, [w]e cannot license the
hidden camera footage appearing in the segment. We do not own the copyright.
S.A.0294. Defendants have never produced a copy of this email in discovery
and seek to neutralize this damning admission by falsely asserting that it was
somehow collected through fraud. The district court erroneously concludes that
Plaintiff through his brother made an inquiry to ABCNews VideoSource about
licensing the hidden-camera footage. Dkt 103. Plaintiffs brother acted alone and
without instruction from Plaintiff. After Plaintiffs brother gave him the
response from ABC indicating that ABC [did] not own the copyright, Plaintiff
immediately turned the document over to Defendants. Dkt.96 at 10. Plaintiff
denies that this was an attempt to fraudulently collect evidence and disputes that
the facts alleged concerning the ABC News Video Source email constitute
misconduct that may be sanctioned. Plaintiff is unaware of any rule or law that
would have been violated and neither the district court nor defendants have cited
28
any. If the Court deems that the collection of this evidence is fraudulent the
appropriate sanction is exclusion not dismissal of the entire action.
ii. Abuse of Process
Defendants assert that Plaintiff should be sanction for abuse of process
for taking legal action that was successful because they assert his true motive
was malicious. An ulterior motive by itself is insufficient to sustain a claim for
abuse of process. See Scott v. Dist. of Columbia, 101 F.3d 748, 755
(D.C.Cir.1996) (the fact that a person acts spitefully, maliciously, or with an
ulterior motive in instituting a legal proceeding is insufficient to establish abuse
of process.); Morowitz v. Marvel, 423 A.2d at 198. And despite Siegel's
speculation, there is no evidence that, through this litigation or any other, Mr.
Slate has achieve[d] ... some end not contemplated in the regular prosecution of
the charge, or has engaged in a perversion of the judicial process. Morowitz,
423 A.2d at 198. Hence, Mr. Slate has not committed an abuse of process and
should not be sanctioned.
b. Any Misconduct can be Remedied Short of Dismissal
Defendants sole assertion that they were prejudiced is their claim that
they have expended substantial amount of resources because of Plaintiffs
alleged misconduct but support this expenditure with a list of thing they like
would have done in the normal course of discovery such as conduct depositions,
review documents, and collect documents to support their position. Dkt 9-1.
29
Defendants even cite their series of denied protective orders to support their
calculation of substantial resources but it is not Plaintiffs fault that
Defendants decided to file meritless protective orders that were denied. Id; see
also February 25, 2011 Minute Order Re ECF 25 and 29. Indeed, Plaintiff was
severely inconvenienced by having to respond to Defendants numerous
meritless protective orders. In fact, the only reason any of defendants protective
orders were granted was because he was so overburdened by responding to
baseless motions by defendants that he was unable to respond to two protective
orders and those motions were deemed conceded. Defendants also suggest that
they would not have deposed Cowing but for their attempts to disprove the
authenticity of the Mendelsohn Letter but Defendants initially refused to
acknowledge that Plaintiff had received an Emmy at all and would have taken
this deposition as part of the normal course of discovery in an effort to prove he
is not a journalist and does not have an Emmy as they initially contend. See Def.
Answer at Dkt. 2. Defendants also could have simply obtained a affidavit from
Cowing rather than taking her deposition. Plaintiff was unfairly prejudiced by
this deposition because he too had to expend significant resources to travel to
Chicago for the deposition and purchase the transcript. Even if Defendants
would not have taken this deposition, mere imposition of a deposition is not
sufficient prejudice to warrant dismissal. The record demonstrates that the cost
30
of the Cowing deposition was only $661.05. See ECF 104-2. This court has
made it clear that the fact that the other party has incurred costs due to the
malfeasance will not ordinarily be enough to warrant dismissal[.] Shea v.
Donohoe Constr. Co., 795 F.2d 1071, 1075 (D.C. Cir. 1986).
Because disposition of cases on the merits is generally favored, the D.C.
Circuit has said that a dismissal must be a sanction of last resort, to be used
only when less onerous methods (for example, adverse evidentiary
determinations or other issue-related sanctions) will be ineffective or obviously
futile. Shea, 795 F.2d at 1075 (internal quotation omitted); Shepherd, 62 F.3d at
1478. It is required that the district court explain its reasons for dismissing an
action rather than imposing a lesser sanction. See Webb, 146 F.3d at 971 (stating
the court must explain its reason for not adopting a lesser sanction.).
When sanctions are ordered under the court's inherent power, the need to
consider less onerous alternatives stems from the intrinsic need for self-restraint
in using so powerful a weapon. See, e.g., Chambers v. NASCO, Inc., 501 U.S.
32, 44 (1991) (Because of their very potency, inherent powers must be
exercised with restraint and discretion.). In order to justify the use of a court's
inherent power to order dismissal, the court must give a specific, reasoned
explanation for rejecting lesser sanctions, such as fines, attorneys' fees, or
adverse evidentiary rulings. Shepherd, 62 F.3d at 1478. A district court must
31
state why, in light of the Webb factors, less onerous sanctions are not sufficient.
The district court must fully consider whether harm caused by a party's
misconduct may be rectified by sanctions short of dismissal. Cf. Outley v. City of
New York, 837 F.2d 587, 591 (2d Cir.1988) (Before the extreme sanction of
preclusion may be used by the district court, a judge should inquire more fully
into the actual difficulties which the violation causes, and must consider less
drastic responses.). Conclusory statements are not enough.
Dismissal cannot be justified as a necessary response to the prejudice
allegedly suffered by the Defendants as a result of the alleged fabrication of a
document that is not essential to the case. A monetary sanction, adverse
evidentiary determinations, other issue-related sanctions or a combination of
the same would have sufficed. In Shepherd the court noted that the prejudice
engendered by document tampering typically merits dismissal in two instances:
where the destroyed document is dispositive of the case, so that an issue-related
sanction effectively disposes of the merits anyway, and where the guilty party
has engaged in such wholesale destruction of primary evidence regarding a
number of issues that the district court cannot fashion an effective issue-related
sanction. Shepherd, 62 F.3d at 1479 (citations omitted). Neither circumstance is
present in this case.
32
First, the Court acknowledges that the letter alleged to have been
fabricated relates to footage shot by Plaintiff in 2006 none of which is at issue in
this case. See Dkt. 103. However, the Court has erroneously concluded that it is
a critical piece of evidenceindeed the only evidence that the plaintiff ever put
ABC on notice of his non-affiliation with the PCC and his expectation to be paid
directly for his work, prior to his attempts to withdraw any license on March 14,
2008. Id. The Court reached this erroneous conclusion only by ignoring
explicit evidence in the record that Plaintiff put ABC on notice and they
understood that Plaintiff was a freelancer working independently. See PA163;
S.A0612; PA148; PA177. Therefore, excluding the letter would not dispose of
any of the claims on the merits and certainly would not dispose of the every
claim against every defendant.
Second, there is not even an allegation that Plaintiff has engaged in
wholesale evidence tampering with primary evidence. Other than the letter,
ABC has weakly asserted that handwritten notes produced in discovery were
fabricated but does not assert that there is clear and convincing evidence of
fabrication or that the notes resemble anything approaching primary evidence
regarding any issue in this case.
The record makes clear that Defendants have systematically used actual or
threatened criminal investigations, regardless of whether they have any merit at
33
all or are fabricated as in the case of an alleged hacking by Mr. Slate, to
intimidate plaintiff. Defendants have fabricates allegations of misconduct to
support frivolous motions filed for the primary purpose of attempting to unfairly
obstruct and delay this litigation. This is a classic abuse of process and is what
genuinely poses a threat to the integrity of the judicial process of this Court.
Hickey v. Scott, 738 F. Supp. 2d 55, 71 (D.D.C. 2010) (holding that abuse of
process lies where the legal system has been used to accomplish some end
which is without the regular purview of the process . . . .) (quoting Bown v.
Hamilton, 601 A.2d 1074, 1079 (D.C. 1992)); Sindram v. Circuit City, 1992
U.S. Dist. LEXIS 18857, at *6 (D.D.C. Dec. 13, 1992) (finding the action
clearly vexatious and a misuse of the scales of justice where plaintiffs
claim only sought to intimidate or harass the named defendants). Accordingly,
Defendants motion to dismiss should have been denied by the district court and
this court should reverse the district courts decision.
CONCLUSION
The judgment of the district court should be reversed, and the case
remanded with directions to deny defendants' motion for summary judgment,
deny defendants motion to dismiss, and to grant plaintiff a trial on all
infringement issues and claims.

34
/s Gregory Slate
Gregory Slate
P.O. Box 21020
WASHINGTON, DC 20009

DATED J uly 23, 2014
35
CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the
undersigned certifies that this brief complies with the type-volume limitations of
Federal Rule of Appellate Procedure 32(a)(7)(B)(ii).
1. Exclusive of the exempted portions of the brief, as provided in Fed. R.
App. Proc. 32(a)(7)(B)(iii), this brief includes 6,954 words.
2. This brief has been prepared in proportionally spaced typeface
Microsoft Word Version 14.0.7128.5000 (32-bit) in 14 point Times New Roman
font. As permitted by Fed. R. App. Proc. 32(a)(7)(C), and Circuit Rule 32(a)(1), the
undersigned has relied upon the word count of this word processing system in
preparing this certificate.
/s Gregory Slate
Gregory Slate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 24, 2014, I caused a true and correct copy of
the foregoing Reply Brief to be delivered via the courts ECF system to:

Nathan E. Siegel (D.C. Bar #446253)
LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.
1050 Seventeenth Street, NW, Suite 800
Washington, DC 20036
Telephone: (202) 508-1100
Facsimile: (202) 861-9888
Attorney for Defendants

/s/ Gregory Slate
Gregory Slate
36

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