[00:00:00] Speaker 00:
Case number 21, Dutch 71 25 Larry Elliott Clayman individually at balance versus Thomas J. Beacon individually at up Mr Clayman for the balance Mr Grisco for the Apple East.

[00:00:13] Speaker 03:
Morning, Your Honor.

[00:00:14] Speaker 03:
I asked for leave to remove my mask.

[00:00:16] Speaker 03:
I took a test on Friday.

[00:00:18] Speaker 03:
I traveled here over the weekend and I did not get the result until yesterday and I'm negative and you're negative.

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All right.

[00:00:26] Speaker 03:
Thank you very much.

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May it please the court.

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Pleasure to appear in front of you.

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All three.

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This is a case involving defamation.

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The statement at issue is that he claimed, and yours truly, was ousted at Judicial Watch, asked Tom Fitton why he left.

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He left because of a sexual harassment complaint.

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This was allegedly published, as played in the complaint, by Tom Fitton of Judicial Watch for Roger Stone, who then republished it

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an infowars.

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The law is clear that sufficient to just have one publication to one person.

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Here we had two.

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In fact, the law of defamation in a district says it simply must be published to a third party as competitive enter Institute versus man.

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180, Atlantic third, 1213, 1240, DC 2016, as well as the restatement of torts

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It is not that is communicated to a single individual other than the one thing here.

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You have two publications here.

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We also alleged in the complaint that there was a surrogate publication stone was publishing it on behalf of it.

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What's the basis for your allegation that, uh, kitten was the source of stones statement.

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It says,

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This was the publication, Ask Tom Fitton.

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So obviously he got it from Tom Fitton.

[00:02:00] Speaker 01:
How do we know that?

[00:02:02] Speaker 01:
This is about the circumstances under which he left Judicial Watch, and that had been the subject of a very public trial that had been ongoing for a decade.

[00:02:17] Speaker 03:
It has never been proven that I sexually harassed the office manager.

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I categorically deny that.

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But the bottom line here, Your Honor, is if it's plausible, it must proceed under rule nine and eight.

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Do you deny that you physically assaulted your wife?

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This has nothing to do with this case, and I do deny that vehemently.

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I deny it vehemently.

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The jury found otherwise in the case.

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The jury never made such a finding, Your Honor.

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The jury never made such a finding.

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One of the problems that we've had here, this is eight.

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Why did the jury then award

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judicial watch 2.7 million dollars against you.

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That's still being challenged, your honor.

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But the fact is is that there was prejudice because that came in and never should have come in.

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I left voluntarily.

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There was a severance agreement that said I left voluntarily.

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I was praised parole.

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Evidence rule should never have allowed it.

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The point is the point here is that and I think this is what Judge Cassis was asking you about.

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is that this was spread all over the newspaper a year before Roger Stone made the statement you're complaining about.

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All this information, the jury verdict, the evidence that came in and so on.

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So it seems to me that your submission that the only way that Stone could have known this is from Fitton.

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It is belied by the fact that it was a public trial.

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First of all,

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You're getting way beyond this case.

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Okay, you have been prejudiced yourself here for third parties and other sources.

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Am I saying you're a prejudiced person, but you've been prejudiced this case.

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There's no claim of race judicata here.

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Wait, what?

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What have I been prejudiced?

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What are you, you're, you're making an accusation.

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I'm saying not back it up.

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I'm not saying that you have been prejudiced as a person.

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I'm saying that the things that you have been, that have been out there in the alleged media and wasn't even out in the media, your honor.

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You have to go back and look at that.

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You think because I read an opinion of our court that that prejudice me?

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The opinion did not say that.

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It did not say that, your honor.

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It's never been found that I sexually harassed an office manager.

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Don't interrupt me when I'm trying to interrupt you.

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Five equal rights.

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The opinion said that the big issue before the jury was whether you left judicial watch voluntarily.

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The opinion said.

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The opinion did not say anything about sexually harassing the office manager.

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Your honor, I ask respectfully that you go back and read that.

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It did not say that in any event.

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Well, neither did Roger Stone.

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I'm entitled to plead in my complaint, to make a claim in my complaint.

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There's no defense of race judicata, collateral estoppel, or anything.

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Under Twombie, as long as it's plausible, the matter has to proceed.

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And here's what Twombie said.

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The complaint must contain enough factual matter taken as true to suggest, this was dealing with an agreement in restraint of trade, and then a trust case,

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Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage and simply calls for enough banks to raise a reasonable expectation that discovery will provide evidence of an illegal agreement.

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You must only plead enough to cause a right of relief above the speculative level.

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Given the defendant weren't fair notice of what the claim was is the grounds upon which

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rest, it only must be plausible, Your Honor.

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Plaintiffs need not allege specific facts.

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The facts alleged must be accepted as true, as the facts need only give defendant fair notice of what the claim and the grounds upon which it rests.

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Harrison versus

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Parsons by 51 U.S.

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8993.

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And then Twombie adds, going back to Twombie, a well-planned complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable and that a recovery is very remote and unlikely.

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We pled, I pled what needed to be pled, Your Honor, and I don't mean any disrespect to you, but what has occurred here over the years, and I have a defamation judgment against Judicial Watch going back to Miami in 2014,

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has been prejudiced, as prejudiced me.

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I'm not saying you're a prejudiced person, not at all.

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I've had issues with judges in this court, particularly Judge Kelly.

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And I sometimes get the impression that the judges in this court circle the way.

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There was no such finding that I sexually harassed the office manager, even Judicial Watch didn't make that at that trial.

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There was no finding that I in any way abused my wife.

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I'm desirous of equal rights here.

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There's no finding to that effect.

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And I pled what needed to be pled in this complaint.

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The complaint must proceed.

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You're here with an oath of office to follow the law.

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The law does not enter into what you may think a jury found in another case because there's no such jury finding.

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There are no specific jury interrogatories.

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And if you want to get back into that case, I don't even know what was given to the jury in terms of the written instructions.

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But there's no such finding there.

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I categorically deny that.

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I'm entitled to equal rights here, Your Honor.

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And the fact that I've been smeared here and there's enough.

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There's enough here.

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There's enough here.

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The entire subject came up because you said that the only way

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Roger Stone could have possibly come up with the idea that you were, that you left judicial watch, uh, you were ousted.

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The only way that he could possibly have known that is through Mr. Fitton.

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And then, but the relevance of the prior decision in this court and the jury trial was that there was another way.

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Because your earlier trial, that was the issue, according to the opinion.

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I wasn't trying that, Your Honor.

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That wasn't an allegation in the case.

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It was brought in trial.

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Judge Cattelli let it in.

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Out of the blue, it was prejudicial.

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And even the statement that came in wasn't that I had sexually harassed the office manager.

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That was not the statement that came in.

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And if you're looking at the actual publication here,

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claimant was ousted at Judicial Watch, asked Tom Fitton, it's more than plausible that Fitton said that to Stone, and that's enough for a defamation case.

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You are bound under Rule 9 and 8 to allow this to proceed, and you're bound under Twomey.

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You don't get to decide a case before it goes to discovery and goes to a jury.

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You don't get to do that.

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That's not a judge's role.

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And I'm sorry if I'm being emphatic, but

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This is exactly what's been happening in a lot of different cases, not just with regard to me, but every judge is taking cases away from discovery and from jury, then making a decision which the Constitution gives a party a right to at least plead in a complaint and take discovery.

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And I would like to get into telephone records.

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I want to talk to other people here as to what was said.

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I have a right to do that.

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That's my constitutional right.

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And I'm sorry if I'm upset, but frankly, you know, to rule otherwise, this is severe injustice.

[00:09:52] Speaker 01:
Judge Rogers.

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Any questions?

[00:09:54] Speaker 01:
No.

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Thank you.

[00:10:08] Speaker 01:
Anything else?

[00:10:10] Speaker 03:
No, I thought maybe Judge Rogers.

[00:10:12] Speaker 01:
Thank you.

[00:10:20] Speaker 01:
Mr Driscoll.

[00:10:21] Speaker 01:
We'll hear from you.

[00:10:29] Speaker 00:
Good morning, Your Honors.

[00:10:31] Speaker 00:
May it please the court, Rich Driscoll on behalf of the appellees, Thomas Fitton, James Peterson, Paul Orfanides, and Christopher Farrell.

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Neither party before the court this morning is arguing for a change in the law.

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The issue before the court is whether the law was properly applied in the lower court.

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I think the court needs only look at page nine of the joint appendix in paragraph 12 to read the allegation regarding who made the alleged defamatory statement, which reads on information and believe the defamatory statement alleged herein were made by defendant Peterson and or defendant Fitton at the direction of or directly by the other direction

[00:11:23] Speaker 00:
other defendants to stone.

[00:11:26] Speaker 01:
Tom Lee and Iqbal didn't eliminate pleading on information and belief, right?

[00:11:33] Speaker 01:
No sir, they sold not.

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So why isn't, for that kind of allegation, why isn't it enough for him just to say on information and belief, fit and made the statement?

[00:11:47] Speaker 00:
Because under the law of this jurisdiction, and I believe the case Franklin, the Pepto Holdings, the standard of allegation for establishing a defamatory statement is that the plaintiff must allege the time, the place, the content, the speaker, and the listener.

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And here, that may have been done with regard to the statement made by Roger Stone,

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But it is not done with regard to any of the defendants.

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And in fact, this court agreed that at least with regard to appellants Peterson, Orfanides, and Farrell, that that is correct.

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There was no allegation.

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And in the complaint, the only distinction between the allegations against those three defendants and appellant Fitton is the allegation, ask Tom Fitton.

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So the question then becomes does the phrase ask Tom fit push this case over the line from a possible claim to a plausible claim under Twombly and I understand your argument that that inference is not a plausible one.

[00:13:06] Speaker 01:
I guess I'm asking whether you even need to make that inference.

[00:13:11] Speaker 01:
I mean, suppose you were suing

[00:13:14] Speaker 01:
Mr. Klayman, and you alleged that he's a resident of Florida, and you don't say anything more, right?

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And he says, well, what's your basis?

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What's your basis for saying that?

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And your position would be you don't need anymore.

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It's just a historic fact, and you allege it.

[00:13:35] Speaker 01:
And why isn't that, I mean, inferring a conspiracy, an antitrust conspiracy, which is Twombly,

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or inferring discrimination, which is equal, seem a little bit different from just a historic fact that A made a statement to B. Under the law of defamation in the District of Columbia, a blanket statement of A said this to B.

[00:14:07] Speaker 00:
is insufficient and adequate and does not reach the level of plausibility.

[00:14:12] Speaker 00:
It's a possibility, but it's not plausible because what you must know is who said the statement.

[00:14:20] Speaker 00:
Okay.

[00:14:20] Speaker 00:
So let's assume he doesn't know exactly who said the statement.

[00:14:24] Speaker 00:
Let's assume it's one of the four appellees.

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How does he know it's one of the four appellees?

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In the complaint, there's not even an allegation with regard to three of the attorneys.

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And the only specific factual allegation in the complaint is that Roger Stone said, ask Tom Fitton.

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Other than that, the complaint is completely rife with conclusions, not facts, conclusions.

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To say that the defendants acted in concert is a descriptive conclusion.

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It's not a fact.

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So you can't ledge that without an underlying event, a fact or an occurrence to support it.

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And here the appellees are emphasizing that the complaint lacks those predicate facts on which to build the summary allegation that a defamatory statement was made here.

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We're dealing with pure speculation

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based on a historical animosity by Mr. Klayman against Mr. Fitton and others at judicial law.

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When you look at the complaint and you read each paragraph through, the complaint really boils down to Roger Stone said that, and the only way he could know how to say that

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is if Tom Fitton told him.

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And even that predicate argument fails because Tom Fitton has admitted under oath in a deposition that that's not the reason Larry Klayman was forced out of judicial law.

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And Mr. Klayman filed this same lawsuit in the Southern District of Florida and it was dismissed by Judge Martinez who found, we've quoted the language in our brief,

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Judge Martinez found that there was no tortious or wrongful conduct in Florida.

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And the law of Florida, the long-arm jurisdiction law of Florida, can encompass both an act in Florida or an act outside of Florida, directed at Florida.

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So at least with regard to Florida, we know based on Judge Martinez's argument,

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that there is no wrongful conduct here.

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But in order to reach that point, Mr. Claymore was allowed to depose Tom Fitton for two hours and ask these questions of him.

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He's not here before the court without having had an opportunity for discovery.

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He's deposed Roger Stone.

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He's deposed Thomas Fitton.

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He has nothing.

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And there's no reason why

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harass the defendants in this case.

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And that's the position that we argued in the lower court.

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And it was accepted by Judge Chutkin.

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And we believe that Judge Chutkin's decision is correct and should be affirmed.

[00:17:32] Speaker 01:
Okay.

[00:17:33] Speaker 01:
Judge Rogers.

[00:17:34] Speaker 01:
Thank you.

[00:17:37] Speaker 01:
Thank you.

[00:17:37] Speaker 01:
Okay.

[00:17:38] Speaker 01:
Thank you.

[00:17:48] Speaker 03:
Your Honor, the law is clear that you just have to have a plausible claim.

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And when someone says, ask Tom Fitton, it's plausible.

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Specific date is likely in and about the time that Roger Stone republished the event.

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But even that is not required in terms of the eventual pleading.

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And you can look at the cases that state that.

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220 U.S.

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District DIST Lexis 161295

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to 20.

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Well, we 5 to 5 0 to 4 at eight.

[00:18:21] Speaker 03:
Uh, wherein it says, and this is a case coming out of the Western District of Texas, for instance.

[00:18:27] Speaker 03:
Similarly, the Eastern District of Texas found the plaintiff had quote defamation claim was sufficient particularity to put defendant on notice of the claim, even though the allegations relating to the defamation claim do not specify when these alleged statements were made or with regards to the letters to patients whom they were specifically

[00:18:46] Speaker 03:
made.

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Also, you can look to the case of Cantu, C-A-N-T-U versus Guerra, 2021 U.S.

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District Lexus 119681 at 42 to 43, also Western District of Texas.

[00:19:03] Speaker 03:
We pled all that needed to be pled here, Your Honor, and we also stated, yes, the defendants made these statements, and we pointed out that Fitton was the one who was

[00:19:16] Speaker 03:
In fact, danger, for lack of a better word, by Roger Stone for having made it.

[00:19:22] Speaker 03:
And that's enough to go forward.

[00:19:24] Speaker 03:
In terms of discovery, you know, this was a misstatement by Mr. Driscoll, regrettably, is that the caseless assistant fired on personal jurisdiction.

[00:19:33] Speaker 03:
The judge never got to the merits.

[00:19:36] Speaker 03:
And to have it and simply deny it,

[00:19:41] Speaker 03:
That's not discovery.

[00:19:42] Speaker 03:
I get to take a look at telephone records.

[00:19:43] Speaker 03:
I get to talk to other people.

[00:19:45] Speaker 03:
I get to see text messages and other things like that.

[00:19:48] Speaker 03:
Obviously, people are going to deny.

[00:19:51] Speaker 00:
So that's not demonstrative.

[00:19:52] Speaker 03:
So, Your Honor, we ask that you allow the case to proceed forward respectfully to everybody, including Judge Randolph.

[00:19:58] Speaker 03:
You are required to do that under TWAMI.

[00:20:01] Speaker 03:
Thank you.

[00:20:02] Speaker 03:
Thank you.

[00:20:03] Speaker 03:
The case is submitted.