VERIFIED REPLY WITH OBJECTIONS TO SECOND AMENDED PETITION WITH APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION
OCT 30, 2023 | REPUBLISHED BY LIT: OCT 30, 2023
Defendants, Counter-Plaintiffs and Third-Party Plaintiffs Mark Burke, individually, and on behalf of Blogger Inc., and Joanna Burke (“Defendants” or “media defendants”), file this response with objections to Plaintiff Robert Kruckemeyer of The Kruckemeyer Law Firm’s (“Bob”) Second Amended Petition and Application for Temporary and Permanent Injunction, with prejudice.
The media Defendants provide a concise overview of the key legal concerns stemming from Bob’s recently filed Second Amended Petition, perversely labeled as an Amended Notice of Hearing, docketed on October 24, 2023. In this pleading, Bob seeks a temporary injunction against the media Defendants at the upcoming remote emergency hearing.
The media Defendants incorporate herein, their “Verified [TCPA] Motion to Dismiss”, image no. 110937593, docketed October 23, 2023 along with First Amended Counterclaim/Third Party Petition and Application for Permanent Injunction, image no. 108883353, docketed June 27, 2023 along with supporting separate addendums, as well as the other pleadings formally present on the docket, and which address the majority of Bob’s most recent cut and paste pleading which is garnered from his first amended petition.
Bob’s grievances primarily revolve around three articles featured on Blogger Inc’s blog, hosted on the keyword-rich domain at lawsintexas.com (“LIT”). His concerns are twofold. Firstly, he takes issue with LIT’s western-themed branding, encompassing the brand persona and messaging visible throughout the website and published content. Secondly, as indicated in paragraph 7 of the October 2023 Petition, Bob contends that he is not a third-party debt collector, asserting that he does not require a surety bond for debt collection in Texas and that he has no non-attorney employees.
“In Texas, any statement made in the due course of or in serious contemplation of a judicial or quasi-judicial proceeding is absolutely privileged and cannot serve as the basis for a defamation lawsuit. Shell Oil Co. v. Writt, 464 S.W.3d 650, 655, 2015 WL 2328678 (Tex.2015); James v. Brown, 637 S.W.2d 914, 916 (Tex.1982) (per curiam)” – Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 487 (Tex. 2015). As such, any and all of LIT’s published articles complained of published on or after the date of Bob’s original lawsuit receive absolute immunity from his claims.
A significant portion of Bob’s injunctive relief application centers on his disapproval of the inclusion of western-themed elements in the published articles but which constitute an integral part of LIT’s brand message and persona. In response, the media Defendants assert that LIT’s western-themed branding is not legally actionable.
Additionally, the media Defendants present a sampling of Bob’s affidavit for legal fees with timesheets, supporting their argument that The Kruckemeyer Law Firm’s lawyers perform non-lawyer work, countering Bob’s claim that he doesn’t require a surety bond.
Moreover, the media Defendants have presented compelling evidence demonstrating that, constitutionally, they are shielded from acceding to Bob’s plea for relief. Such a request, they argue, should be outrightly denied as it constitutes a prior restraint on free speech, a practice explicitly prohibited by both the United States Constitution, as per the First Amendment, and the Texas Constitution under Article I, Section 8.
“We have squarely held that a temporary injunction prohibiting allegedly defamatory speech is an unconstitutional prior restraint” Kinney v. Barnes, 443 S.W.3d 87, 92 (Tex. 2014).
MESSAGE TO BOB: GAG ORDERS
“If they think they have such a solid case, let them bring it to the court and go to a trial now, instead of trying to short circuit the process by shutting the website down first then holding a trial at their convenience only.” https://t.co/YrAHyu8znF
— lawsinusa (@lawsinusa) October 23, 2023
Bob’s reliance on his textual misinterpretation of the Texas Finance Code (“TFC”) is central to his claims on Texas debt collection laws. However, the media Defendants assert that, at this early stage, Bob hasn’t met the necessary burden for injunctive relief before a trial on the merits.
The media Defendants provide evidence that other non-compliant debt collection firms, facing perceived negative publicity, complied with the TFC after the media Defendants published articles similar to Bob’s objections.
Pro se Plaintiff Robert J. Kruckemeyer (“Bob”) is doing business as (“DBA”) “The Kruckemeyer Law Firm” since registering his DBA with Harris County on May 11, 2023 (notably only after filing of his baseless complaint on February 21, 2023). Bob took issue with one short and innocuous article on LIT concerning his law firm’s debt collection practices in Texas. LIT’s article was published on June 22, 2022. Bob started commenting on the article directly on August 24, 2022.
Relying upon Tex. Bus. & Com. Code § 71.201 and noting “The Kruckemeyer Law Firm” was legally registered in Harris County as a DBA on May 11, 2023 – which was months after this lawsuit was filed – Bob filed his first amended complaint on June 5, 2023. Bob contends this is sufficient to maintain his civil action for defamation. For reasons provided herein, the media Defendants strongly disagree.
Bob would later file an implied second amended complaint – disguised as a notice of hearing for a temporary injunction – on October 10, 2023.
Over media Defendants objections, on October 24, 2023, Bob filed what he termed as “Filing of Action other than Original”: PLAINTIFF’S VERIFIED APPLICATION FOR TEMPORARY INJUNCTION AND AMENDED APPLICATION FOR PERMNENT INJUNCTION (image no. 110968926). The court rejected the filing with the following comment:
“Incorrect/Incomplete Info: Please resubmit using information required by Statute: Good afternoon, this filing is being returned at this time due to an Over-Payment of Fees. Unfortunately, we are not allowed to alter Fees in any way, and this is actually a ‘No Fee Document’ because it is an Amended Filing, therefore, please remove the $80.00 and re-submit …”
This was a blatantly crude and unsuccessful attempt by Bob to avoid the obvious: he was “amending” his first amended petition, as Defendants previously advised in their Verified [TCPA] Motion to Dismiss. This is confirmed upon reading the deceptive pleading with supporting exhibits, masquerading as an application for injunctive relief.
Bob’s civil action stemming from the original complaint centered around a single article on LIT, of which he became aware on or before August 25, 2022—the date he commenced direct commentary on the published piece. Defamation claims necessitate initiation within the first anniversary of awareness.
The Original Petition Could Not Be Continued
In this context, Bob’s original complaint could not be legally sustained, as stipulated in Tex. Bus. & Com. Code § 71.201(a): “The person may not maintain in a court of this state an action or proceeding arising out of a contract or act in which an assumed name was used until an original, new, or renewed certificate has been filed as required by this chapter.”.
The First Amended Petition was Filed Fraudulently
Bob’s first amended complaint falsely attributed the filing to Randall O. Sorrels of The Sorrels Law Firm, PLLC, on a Sunday afternoon, claiming him as “lead counsel.” This constitutes perjury, as Tex. Bus. & Com. Code § 71.203 prohibits knowingly signing and presenting a document with a material false statement. Consequently, the first amended petition is deemed void.
Bob’s Deception Continues with the ‘Implied’ Second Amended Petition
The current operative complaint, the second amended petition, was formalized on October 24, 2023, only after the court rejected his initial attempts to deceptively classify it as a “Filing of Action other than Original”. Consequently, due to the noted fraud, perjury, and deception, this date is legally recognized as the filing date for Bob’s defamation case. Given that Bob became aware of the publication on or before August 25, 2022, his claim concerning the first article is time-barred, having been recognized as filed after fourteen months (Exhibit “First Article Bob” (Text Only)).
Bob claims he does not have any non-attorney’s, but that is a play on words, not roles within his small practice. An attorney can perform non-lawyer/paralegal/legal assistant/secretarial duties and that’s exactly the situation at The Kruckemeyer Law Firm. See; Gorrellv. Wake Cnty., 5:21-CV-00129-M, at *20 (E.D.N.C. Aug. 8, 2022) (“A lawyer may perform nonlegal work “because he has no other help available,” but these activities “may command a lesser rate.” See id. (citing Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989)) (explaining that the “dollar value [of such work] is not enhanced just because a lawyer does it”).”).
“Why Did HOA Debt Collector and Solo Attorney W Austin Barsalou Decide to Buy a Surety Bond in 2022?: The attorney’s paralegal has worked for Austin Barsalou for a decade. See; Texas Finance Code 392.001(7) re requirement for a surety bond.”
The timesheets in the published article confirm the separation of fees between the lawyer and paralegal, and identifies the works performed in this detailed breakdown of billable hours, further supporting LIT’s response. (Exhibit “Barsalou Fees”)
LIT’s investigation of Bob’s disposed cases at Harris County District Court supports the media Defendants assertions that Bob and his son Mike, both Texas lawyers, are working in dual capacity as lawyers performing legal work and legal assistants performing non-lawyer work. Unfortunately for the clients and ultimately debtors, the hourly rates charged for nonlawyer works at The Kruckemeyer Law Firm do not “command a lesser rate”. In the sampling provided below, the only difference is the attorney’s hourly rate between Bob and Mike. The following sampling of cases included Bob’s affidavit and timesheet for attorney fees, which clearly identifies lawyer work separately and distinctly from legal assistant/secretarial work:
202308090 – BESTLIFE18 LLC vs. DCS LABS LLC (Court 234), Exhibit E, image no. 108066550, May 9, 2023, Exhibit 1, – p. 8 of 8;
202304916 – ASSOCIATED ENERGY GROUP LLC vs. MW AVIATION GROUP (Court 164), Motion for Default Judgment Exhibit C, image no. 108042706, May 8, 2023, Exhibit 1, – p. 8-9;
202025938 – ASSOCIATED ENERGY GROUP LLC vs. SHANGHAI DEERJET CO LTD (Court 270), Exhibit C, image no. 91825902, August 20, 2020, Exhibit 1, – p. 8-9;
201958104 – ASSOCIATED ENERGY GROUP LLC vs. YANAIR LTD (Court 295), Exhibit B, image no. 88802288, January 7, 2020, Exhibit 1, – p. 8-13.
It has been established that lawyers are capable of and often engage in non-lawyer tasks. According to the affidavits and timesheets examined by LIT, Bob and Mike also undertake non-lawyer duties. Despite this evidence, Bob’s lawsuit continues to employ misleading language to dispute these findings. However, both the facts and legal precedents affirm that he is obligated to possess a surety bond as a third-party debt collector.
Good morning Ms Lopez
Can you explain why N/A is present as a comment on the 3 entries on the settings page, which I assume means “not applicable”.
What is “not applicable” about the submission and the 2 motion hearings?
See link to screenshot with marked entries for your comment pic.twitter.com/gPD5qvuUkL
— lawsinusa (@lawsinusa) October 25, 2023
Bob’s pleading includes a third article from LIT’s blog. See Second Amended Petition at 22.
LIT Article (at 22): “Bandit Lawyer Bob Kruckemeyer Switches Client Industries: From Air Fuel to Tax Scam Promoters: For each ERC issued to NAGRI from the IRS, NAGRI agreed to pay HPFS a flat fee equal to 7 percent of the total aggregate value of such ERC.” (Exhibit Third Article Bob (Text Only)).
LIT’s article is fact driven, relying upon the IRS.Gov warning on their article, as republished in the above LIT article, including a heading which states; “Beware of ERC scam promotions” and which expands on the scam by stating; “Fees based on a percentage of the refund amount of Employee Retention Credit claimed – you should always avoid a tax preparer basing their fee on the amount of the refund.”
It is clear that Bob’s tax preparer client charged percentage fees based on the refund from Bob’s own court filings, signed under the penalty of perjury. As such, there is nothing which can be construed as defamatory in LIT’s fact-based article which recites the Inland Revenue Service’s own warning about tax preparers like HPFS, who fit the scam label as applied by the IRS.
Bob lists 3 specific complaints which Defendants will address individually;
1 LIT Maliciously refers to Bob as a “Bandit Lawyer;
2 Falsely asserts Bob is representing “Tax Scam Promoters”, and;
3 Uses a picture of a clown in the article.
1 The term “Bandit” is a brand label by LIT. The utilization of the term “bandit” is integral to LIT’s brand message at lawsintexas.com. LIT’s website’s menu features items such as “The Wild West,” “Outlaws,” “Bandits,” “Rogues,” “Wanted,” “Gallows,” “Saloons,” and more, strategically chosen to convey the essence of a lawless society reminiscent of the Wild West era in Texas.
This thematic approach is a deliberate and creative means to engage LIT’s audience and communicate the unique perspective the media Defendants bring to discussions about legal matters in the state.
To answer specifically, in relation to “Bandit Lawyer” this is an integral continuation of the theme, which has been characterized as satire and rhetorical hyperbole in many legal opinions at both state, federal and supreme courts in support of freedom of expression in journalism.
See; Mink v. Knox, 613 F.3d 995, 1005 (10th Cir. 2010) (“Use of the word `traitor’ in literary definition of a union `scab’ not basis for a defamation action under federal labor law since used `in a loose, figurative sense’ and was `merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members…Context is crucial and can turn what, out of context, appears to be a statement of fact into `rhetorical hyperbole,’ which is not actionable.””);
See also National Rifle Association v. Dayton Newspapers, Inc., 555 F. Supp. 1299 (S.D. Ohio 1983)(holding that the statement in an editorial that the National Rifle Association “happily encourages . . . murders and robberies” was protected opinion);
In a recently published Supreme Court case, Lilith Fund for Reproductive Equity v. Dickson (662 S.W.3d 355, 359, Tex. 2023), the defendant, Dickson, is quoted as referring to the plaintiffs as “criminal organizations” and making strong allegations that they “exist to help pregnant Mothers murder their babies” and “murder innocent unborn children.” Additionally, Dickson used hashtag links to attract like-minded readers and direct them to anti-abortion messages. Despite the controversial nature of his statements, the Texas Supreme Court confirms that Dickson’s actions are protected by the right to freedom of expression, emphasizing that advocates have the freedom “to speak, write or publish his opinions on any subject” in the state and nation.
In short, it is well understood in courts nationwide that editorial writers and commentators frequently resort to the type of caustic bombast traditionally used in editorial writing to stimulate public reaction.
Indeed, as pending before the court, Defendants state the TCPA was designed to quickly dispose of frivolous accusations against media outlets by Plaintiffs like Bob; See Tex. Civ. Prac. & Rem. Code Ann. § 27.002 and § 27.003.
1 The statement is true – not false – when relying upon and republishing the IRS website warning(s), which mirror Bob’s cases LIT published in this article. That stated, conversely it is not actionable. See; McCabe v. Rattiner, 814 F.2d 839, 842-43 (1st Cir. 1987) (holding that a newspaper headline which referred to the plaintiff’s real estate development as a “scam” was not actionable because the word means different things to different people and “[t]he lack of precision makes the assertion ‘X is a scam’ incapable of being proven true of false”), and;
2 A stock image of a clown is not actionable.
Bob’s pleading includes a second article from LIT’s blog which he added for the first time in his First Amended Petition. See Second Amended Petition at paragraph 20.
Bob Complains about LIT Article (at 20): “Krucke’s, Zombies n’ Bandits: Chasing Personal Debts in Texas Without a Surety Bond: The Kruckemeyer Law Firm chasin’ a personal debt of $166k for client Jim Elzner from John Slocum in violation of Texas laws.” (Exhibit Second Article Bob (Text Only)). Bob’s arguments here revolve around his assertions that;
1 He has no obligation to file a surety bond with the State of Texas and;
2 Once more he picks on the term “bandit” and needlessly reaches for the dictionary once more. Bob’s claims that the Defendants article is false.
Before breaking down the responses to these claims, it should be recognized that Defendants have addressed the surety bond issue before in their past pleadings and counterclaims, as well as further case studies provided herein as uncontroverted evidence supporting their defense.
First, the media Defendants categorically reject Bob’s assertion that the article is false or defamatory. Rather, what exists is a divergence in interpretation regarding the textual meaning of the statute in question. It is vital to emphasize that such a divergence in itself does not provide substantial grounds to initiate a civil action for defamation.
See; Aoki v. Benihana Inc., 839 F. Supp. 2d 759, 770 (D. Del. 2012) (““An expression of pure opinion is not actionable. It receives the Federal constitutional protection accorded to the expression of ideas, no matter how vituperative or unreasonable it may be.””); Petroleum v. Head, No. 13-09-00204-CV, at *1 (Tex. App. Apr. 29, 2011) (“Pure expressions of opinion are not actionable.”).
Second, Defendants maintain an opinion, supported by other lawyers that all debt collection is “consumer debt”. However, specific to this article and case, Bob’s pursuit of a debt against an individual is a consumer protection issue. Based on the facts of this case, it is Defendants opinion that the Texas Finance Code mandates an active surety bond.
Apart from the ambiguous and disputed textual interpretation of the statute itself (TFC), Bob has failed to present any evidence from the Texas Attorney General, the Texas Secretary of the State or any related government agency which supports his claims and in opposition to;
Commercial debt collection is not consumer debt collection;
Personal Guarantees are consumer debts when a legal firm, acting as a debt collector pursues that debt against an individual and that individuals assets are subject to garnishment (seizure) in repayment of any such judgment;
Bob is not a ‘third-party debt collector;
Lawyers in small practices like Bob operate both as lawyers and non-lawyers as they perform legal assistant/paralegal and secretarial services to clients while collecting debts;
Bob does not require to have an active surety bond with the Texas Secretary of State;
Bob has not violated Texas debt collection laws by practicing under a fictitious trading name.
Notably, Bob has solely presented his personal interpretation of the statute without furnishing any independent letters or supporting documents from the relevant Texas Government agencies responsible for formulating consumer protection laws in the state. These agencies, crucial in shedding light on the matter, have not offered unequivocal support for Bob’s assertions, rendering his claims inconclusive. Bob has elected not to obtain such proof in advance of the injunction hearing, despite filing this lawsuit in February of this year.
The media Defendants should not be penalized for Bob’s unsupported and contested interpretation of Texas laws. Bob has not vigorously advocated for his position, failing to provide any independent evidence beyond citing the statutes themselves. This evidence could have been easily obtained directly from state agencies before the hearing.
The media Defendants highlight another lawyer, Shawn Grady, who initially attempted to ignore LIT’s media watch and article about his non-compliance with the TFC. (Exhibit Shawn Grady Article (Text Only)).
There’s a Storey Behind Texas Debt Collector Shawn Grady in His Pursuit of Odin Demolition, et al: Garnishor Storey Mountain LLC, assignee of First Horizon Bank, successor by merger to IberiaBank Makes application for writs of garnishment.
However, he eventually complied by maintaining an active surety bond since February 15, 2023 and LIT amended the article to update his compliance with Texas laws and debt collecting statutes.
During the preparation of this response, it’s noteworthy that Bob submitted a rejoinder to the Motion to Strike Plaintiff’s First Amended Complaint. However, his response is automatically rejected because he failed to include a Certificate of Conference. Additionally, this matter is rendered moot by the Second Amended Petition.
In this response, Bob contends that the Defendants were ‘mistaken’ concerning point (v) above. However, this argument lacks merit as it misinterprets his infringements of Texas State laws.
Bob’s “Doing Business As” (DBA) is denoted as “The Kruckemeyer Law Firm.” According to Merriam-Webster, a law firm is defined as a noun: representing a group of lawyers working together as a business (Exhibit Definition of Law Firm”). Consequently, the exception related to surnames does not apply, as outlined in Section 71.002(2)(C) of the Texas Business and Commerce Code.
Within this context, Bob’s son, Michael “Mike” Kruckemeyer, is a registered lawyer with the State Bar of Texas and is prominently featured on the law firm’s website. However, the information provided in his online bio is notably concise and ambiguous, merely identifying him as an “Attorney at Law.” (Exhibit “Michael ‘Mike’ Kruckemeyer”). Notably absent is any documented evidence or verifiable details regarding the internal structure of the law firm, such as Mike’s role as an associate, partner, or ‘of counsel.’ This lack of transparency raises questions, and Bob has not fulfilled the essential burden of proof.
What is discernible is Mike’s involvement in debt collection cases filed in Harris County District Court under The Kruckemeyer Law Firm, underscoring the need for a more comprehensive elucidation of the law firm’s organizational framework.
That stated, based on the uncontroverted evidence, the penalties are clear. Bob failed to submit a required certificate for unincorporated persons, as stipulated by Tex. Bus. & Com. Code § 71.051—an omission that carries potential consequences of criminal prosecution in Texas. This is underscored by the precedent set in Lopez v. Cox Tex. Newspapers, L.P., No. 03-14-00331-CV, at *8-9 (Tex. App. July 23, 2015), where the certification process for unincorporated persons was discussed.
Additionally, the Texas Business and Commerce Code outlines criminal penalties for general violations under Tex. Bus. & Com. Code § 71.202 and fraudulent filings under Tex. Bus. & Com. Code § 71.203. As previously asserted in earlier filings, the media Defendants contend that Bob’s original complaint not only breached civil law but also incurred criminal violations.
In sum, the media Defendants vehemently challenge Bob’s assertions that he is a victim in this lawsuit. Contrary to such claims, Bob’s actions are legally characterized as criminal in this State.
In essence, the media Defendants maintain that the presented defense is substantially true. Truth is a complete defense to defamation and “the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details.” Rockman v. OB Hospitalist Grp., No. 01-21-00383-CV, at *39 (Tex. App. May 9, 2023).
Moreover, the defendants assert a counterclaim against the Texas Attorney General, Exhibit Addendum A, image no. 108721736 (Jun. 15, 2023), specifically addressing these questions. It’s essential to note that the judiciary lacks the authority to intercede or curtail the constitutional rights of media defendants, especially those safeguarded by laws protecting non-profit media entities, during the pendency of this litigation. Notably, LIT has played a significant role in this public discourse, actively contributing through published articles, including those related to this case.
Third, to substantiate this perspective and solidify the position concerning the articles on LIT which Bob finds objectionable, the Defendants herein furnish instances of reformed debt collectors who, notably, lacked an active surety bond before gaining exposure through LIT’s online blog or becoming aware of LIT’s investigation into law firms and lawyers debt collecting practices in Texas. This includes featured articles addressing the contentious surety bond prerequisite for law firms engaged in debt collection for clients in Texas or directly pursuing debtors.
“Frosty Lawyer John Resendez Admits He Should Have a Surety Bond to Debt Collect: By his own actions, his law firm, Fridge and Resendez PC purchased a TX SOS surety bond for the first time in October 2022.”
This holds particular relevance, given that Bob has recent and active cases in the pursuit of debtors on behalf of Frost Bank — a bank that, incidentally, enlisted the services of John Resendez as highlighted in the referenced article. See (Exhibit “Frosty Bob” Article (Text Only));
“Frosty Lawyer Bob Kruckemeyer Rejects That He Should Have a Surety Bond to Debt Collect: However, Frost Bank retains other debt collecting law firms, inc. Fridge and Resendez PC who purchased a TX SOS surety bond in October 2022.”
Predictably, this article, in stark contradiction to Bob’s assertions while aligning seamlessly with LIT’s stance, conspicuously failed to secure a spot on Bob’s curated list of featured articles deemed worthy of vehement opposition, instead relegated to a micro thumbnail disclosure (Bob’s Exhibit 4, image no. 110968932, Oct. 24, 2023). The discerning eye cannot ignore the deliberate selectivity and the evident veil of deception woven into Bob’s approach.
TOP MAN: Fmr @statebaroftexas President Randy Sorrels still wants paid by lawyer
“Defendant is a cancer survivor who has been hospitalized multiple times over the last few months. Her husband accepted service of the Complaint while Defendant was in the ICU unit of the hospital” pic.twitter.com/XTjrjWrJUq
— lawsinusa (@lawsinusa) June 5, 2023
In Paragraph 24 of the Second Amended Petition, Bob’s hostility towards the Defendants becomes evident as he references three articles involving Judge Craft, attempting to loosely associate them with his own persona. This deliberate and misleading effort to prompt the court to surpass the scope of requested injunctive relief is both premeditated and deceptive.
A comprehensive review of the articles, alongside the case docket, clarifies the motive behind LIT’s publication. As an investigative blog, it substantiates the alleged conflict of interest involving Bob’s lead counsel and friend, Randy Sorrels. The articles reveal Randy’s representation of Judge Craft’s son in a Harris County District Court case and his unauthorized involvement in another case with Judge Craft, including a family member, likely her mother, Pamela Craft, as a co-plaintiff. The conflict of interest, coupled with donations to Judge Craft, is evident, and this objection has been previously raised by the media Defendants.
The inclusion of these articles by Bob as grounds for removal from LIT’s blog is made in bad faith, especially considering the prior pleadings addressing this objection. Notably, Randy has chosen to withdraw as lead counsel following this investigation, although the sincerity of this decision is questioned by the Defendants based on facts presented in earlier pleadings. In summary, none of the articles are pertinent to the injunctive relief sought.
Bob also fails to acknowledge the Texas Defamation Mitigation Act, which requires a plaintiff to make a timely and sufficient request for a correction, clarification, or retraction from the defendant before initiating a defamation lawsuit. Bob’s failure to make such a request in relation to the second and third articles in question precludes recovery of exemplary damages.
See; Canidae, LLC v. Cooper, Civil Action 6:21-CV-0019-H-BU, at *1 (N.D. Tex. Aug. 4, 2022); Klocke v. Watson, 597 F. Supp. 3d 1019, 1038 (N.D. Tex. 2022) (“Finally, the parties agree that failure to comply with the DMA requirement that a plaintiff request correction, clarification, or retraction bars recovery of exemplary damages. Hogan v. Zoanni, 627 S.W.3d 163 (Tex. 2021) ; Warner Bros. Ent., Inc. v. Jones, 538 S.W.3d 781, 812 (Tex. App.–Austin 2017), aff’d, 611 S.W.3d 1 (Tex. 2020). Plaintiff did not timely make such a request.”). Furthermore, as discussed herein, Bob’s new defamation claims are without merit, protected by the constitution and judicial proceedings privilege.
Bob’s irritability is sustained in the Second Amended Petition by referencing the fact that his home and work IP addresses are allegedly blocked by LIT’s server, which is configured with state of the art security and firewalls. As such, it is highly sensitive to IP bots and presumptive hackers. Nevertheless, Bob provides only one reason for including these facts to the court. Bob is confident his applications for injunctive relief will be granted, and wishes to act as cyber-police, monitoring compliance by Defendants with any court order related to the success of his application for injunctive relief.
Importantly, Bob does not provide the identity of any Internet Protocol (“IP”) addresses which he claims are “blocked”. Nor does he cite any authority which allows for such sweeping access and control over media defendant’s online portals. From a security standpoint, it is unknown and remains unproven that the IP’s in question were not being used maliciously to either take down LIT’s website, or that Bob, Mike or any agent for The Kruckemeyer Law Firm has been trying to hack into the backend of the content management system (“CMS”) or web server.
In addition, LIT’s Privacy page on the blog at lawsintexas.com provides no warranties, thus repels any and all liability for issues such as the availability and access of the website to visitors (Exhibit “LIT’s Privacy Page (Text Only)). In Roberts v. Weight Watchers Int’l, Inc., No. 16-3865, at *3-4 (2d Cir. Nov. 2, 2017) the Subscription Agreement granted Roberts a limited right to access and use the website and subscribed products. The agreement explicitly disclaimed any warranties, stating that the products on the website are provided “as is” without any guarantees of uninterrupted or error-free service. The district court ruled that Roberts couldn’t claim a breach of contract since he received what was specified in the agreement—an “AS IS” basis for accessing OnlinePlus. The court didn’t address other contract provisions limiting Roberts’s right to sue for damages. The appellate court agreed with the district court’s decision.
As introduced earlier, Bob goes to great lengths complaining about LIT’s branding and brand persona. This requires further discussion.
Starting with LIT’s brand’s logo, embedded as an image at the beginning of this verified response with objections, it is a picture of a “bandit”, wearing a black “bandana” covering his face in the style associated with a “bandit”. He is wearing a “cowboy” hat. It is fair to say the brand character in the logo can also be referred to as an “outlaw”, “robber” or “rogue”. It is safe to assume that “Laws in Texas” is depicted in a satirical form, as “lawless” rather than law abiding.
This brand theme and persona is carried forward when one reviews the main navigation on the blog itself at lawsintexas.com and which includes top menu items labeled in keeping with the intentionally sardonic brand message; “The Wild West”, “Wanted”, “Gallows”, “Outlaws”, “Bandits”, “Saloons” etcetera. The “Wanted” menu item leads to a page which includes a federal judge photoshopped into a “Wanted” poster.
Financial Crimes: Millions in Attorney Fees Approved by Bent Federal Chief Judge for Not-So-Secret Legal Lover https://t.co/16hks6hlOL @uscourts @USMarshalsHQ @USAO_SDTX @Kirkland_Ellis @Jackson_Walker @DOJCrimDiv @McDermott_News @aramco @qatarenergy @Rigzone @khou #TWO #NMA
— lawsinusa (@lawsinusa) October 21, 2023
Furthermore, his complaint seems contradictory, considering the branding for his own book on Amazon, “Zombie Warriors”, (Exhibit “Bob’s Zombie Warriors on Amazon”) which is summarized, in part reads as follows: “U.S. Special Forces Bio/Chemical weapons expert Horatio Danglar was left behind in Iraq in 1991 and presumed dead. Bent on revenge against his team leader and best friend Duke Bridges…” (emphasis added).
What is clear, however, is that Bob is bent on revenge in this lawsuit. Alas, his complaint is both frivolous and baseless and the application for temporary and permanent injunctive relief in his Second Amended Petition should be denied with prejudice to refiling.
The temporary injunction hearing scheduled for Tuesday, October 31, 2023 at 10.05 am before Judge Craft is an impermissible prior restraint on free speech. See; The Woodlands Pride, Inc. v. Paxton, Civil Action H-23-2847, at *53 (S.D. Tex. Sep. 26, 2023) (“A prior restraint is a prohibition on speech or expression that bears a “heavy presumption of unconstitutionality.””).
In fact, LIT recently added a prior restraint article on the first article (Exhibit “First Article Bob” (Text Only)) Bob complained about and after Defendants noted he’d requested a Temporary Injunction hearing, in part;
“A Dallas judge found earlier this week that a plaintiff who tried to silence a blogger through a temporary injunction in a defamation suit did not meet the burden for the injunction. The decision marked Rosales’ second failed attempt to have the posts removed.”
Adelman noted that Rosales is simply trying to shut down the website before going to trial, stating;
“If they think they have such a solid case, let them bring it to the court and go to a trial now, instead of trying to short circuit the process by shutting the website down first then holding a trial at their convenience only.”.
The same scenario applies here. See also;
“Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities—are classic examples of prior restraints. Further, the Supreme Court has repeatedly held that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.””- Williams v. Rigg, 458 F. Supp. 3d 468, 476 (S.D.W. Va. 2020).
As such, Bob’s application(s) for injunctive relief should be denied.
This is particularly true when Bob falsely and maliciously targets a non-profit investigative media organization which focuses on “matters of public concern” related to the legal industry, the judiciary, financial services, and banking verticals. This naturally includes both state and federal government, as well as the respective agencies.
In 2019, the Legislature amended the definition of a “matter of public concern,” which now includes “a matter of political, social, or other interest to the community; or . . . a subject of concern to the public.” Tex. Civ. Prac. & Rem. Code §27.001(7).
Here, the media Defendants satisfy this standard. Without a doubt, this legal case has garnered widespread public attention. Shortly after Bob’s lawsuit was filed, a journalist from Law360 approached the media Defendants, seeking their input for their upcoming article (Exhibit “Law 360 Bob Sues LIT” Article). In response, the media Defendants not only provided comments which resulted in Law360’s follow-up article (Exhibit “Law 360 TX Legal Blog Asks Court to Axe Lawsuit” Article) but also extended their coverage by featuring the case and its associated investigations on their blog, LawsInTexas.com.
To be granted a temporary injunction in Texas, Bob must prove: (1) a valid legal claim against the defendant, (2) a likely right to the relief they’re seeking, and (3) a probable, imminent, and irreparable harm in the meantime (Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)).
Because injunctions are unusual and rarely granted against media Defendants, Bob must provide evidence supporting his likely right to win in court. This means showing at least one valid legal basis for their claim (Camp v. Shannon, 348 S.W.2d 517, 519 (Tex. 1961); Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 922 (Tex. App.—Dallas 2006, no pet.)).
It should be noted that during a temporary injunction hearing, the court checks if Bob will probably succeed in the main case. It doesn’t decide the full case, and its decision doesn’t set a precedent.
That stated, Bob has the burden of production, which is the burden of offering some evidence that establishes a probable right to recover and a probable interim injury. In re Tex. Natural Res. Conservation Comm’n, 85 S.W.3d 201, 204 (Tex. 2002); Dallas Anesthesiology Associates, P.A. v. Texas Anesthesia Group, P.A., 190 S.W.3d 891 (Tex. App.—Dallas 2006, no pet.). If Bob’s application for temporary injunction does not discharge its burden of pleading and proof as to any one element for temporary injunctive relief, then Bob is not entitled to a temporary injunction.
Bob must genuinely raise doubts about their right to eventual relief and back it up with evidence for each element of at least one valid legal argument (Tex. Health Res. v. Pham, No. 05-15-01283-CV, at *5-6 (Tex. App. Aug. 3, 2016)).
Bob asserts a probable right to relief in his Second Amended Petition, primarily centered on claims of defamation against the media Defendants. Despite making bold statements in paragraph 41, Bob’s case falters as he neglects to furnish independent evidence substantiating these defamation claims.
In paragraph 42, Bob contends that LIT’s ongoing investigation and publication of articles about him constitute a continual dissemination of false and negative information. However, Bob fails to establish why this ongoing coverage differs from legitimate journalistic reporting, using the analogy of the New York Times producing a series of articles on Donald Trump’s civil and criminal proceedings.
It’s paramount to note that LIT operates as a legal investigative blog, and the act of running a series of articles about Bob and his associates, although perhaps displeasing to Bob, does not form the basis for a valid civil action or warrant injunctive relief. LIT’s actions parallel standard journalistic practices, and Bob’s objections do not translate into legal grounds for the relief he seeks.
In summary, Bob’s claim lacks the essential evidentiary support needed to substantiate his allegations, thereby undermining the foundation of his case and request for injunctive relief against the media Defendants.
“Defendant Noack is a law firm engaged in the business of debt collection. As such they knew, or should have known of the statutory requirement, but chose to file this lawsuit anyway, in the hopes of obtaining either a default judgment or facing an pro se debtor.”
“Defendant Noack Law Firm, PLLC (Noack) is a law firm engaged in the collection of debts.
They collect debts for others by filing lawsuits in Texas Courts. Noack is a “debt collector” as defined by 15 U.S.C. § 1692a(6) and Tex. Finance Code § 392.001(6).
Noack is also a “third-party debt collector” as defined by Tex. Finance Code § 392.001(7).”.
– Tameka v. Rock Creek Capital LLC (4:23-cv-01261) District Court, S.D. Texas, Judge A. Hanen
Related article published on LIT;
“Y’all Could Have Won LIT’s ‘Tony’ Award, But Instead, Y’all… After taking up LIT’s cause to out the rogue debt collection firms and their counsel, lawyer James ‘Tony’ Foley dismisses Noack.”
(Exhibit “Noack Bottled It Article” (Text Only)).
Unsurprisingly, LIT has substantiated its claims with compelling evidence. Through a comprehensive series of investigative articles focused on a non-compliant debt collecting law firm in Texas, LIT successfully ensured compliance and prompted the filing of the necessary surety bond with the Secretary of State. The case in point is The Noack Law Firm, PLLC, led by the husband and wife team of Craig Noack and Carolyn Noack.
Upon discovering that The Noack Law Firm lacked a required surety bond, LIT studiously monitored court cases within Harris County and disseminated a series of articles detailing the situation (Exhibit Noack Series (Text Only)).
The media Defendants assert that, in direct response to these ‘negative’ articles spotlighting The Noack Law Firm, PLLC, the firm promptly took corrective action by complying with the Texas Finance Code (TFC) and debt collection laws, securing, and filing the necessary surety bond. Similar to Bob’s case, the Noacks’ had neglected to obtain such a bond throughout their years in debt collection, thereby violating the provisions of the TFC.
Importantly, once The Noack Law Firm complied with TFC and debt collection laws in the state of Texas, and LIT became aware, any published articles affected were immediately updated to reflect The Noack Law Firm’s compliance.
After an Order by Dishonorable Dan Hinde, who issues an 8-page dismissal with prejudice and costs – without a single case citation – and all the while acting as gatekeeper and counsel for the two defendants,https://t.co/eNvN5YeGTa
Mark Burke fires back;https://t.co/jSjvCSSqeP pic.twitter.com/anYNQok8oG
— lawsinusa (@lawsinusa) July 10, 2023
In a recent legal development, Mark Burke, having previously triumphed in the HCA Kingwood lawsuit and as detailed in the Defendants recent Verified [TCPA] Motion to Dismiss, is leveraging this success as binding precedent in this defamation case and where similar claims have been raised by Bob.
HCA, along with its chosen law firm and attorneys, had counterclaimed for defamation in the HCA Kingwood lawsuit, but Mark Burke successfully navigated and defeated those charges. Drawing a parallel to his earlier victory, Mark Burke contends that the HCA case serves as a precedent for this hearing and legal proceedings.
In the HCA case, 202268307 – BURKE, MARK vs. KPH-CONSOLIDATION INC (DBA HCA HOUSTON HEALTHCARE (Court 234), an oral hearing on the application for a temporary injunction transpired, with Harris County District Judge Lauren Reeder ultimately denying the application. Judge Reeder, in her decision, highlighted Mark Burke’s characterization of his website as an “online diary and entire record of the case”.
THE COURT: And nor are you seeking a removal — a wholesale removal of his website or any of the postings related to filings in this Court. Or I believe he’s filed — he basically kind of put the entire record on his — the website.
She verbally stated Mark Burke had responded to the application by filing written defenses, including “Plaintiff’s Reply To HCA Houston Healthcare Kingwood’s Response To Plaintiff’s Plea In Abatement”, image no. 105682671 (Dec. 20, 2022) and as republished on the gripe site (Exhibit “HCA Rambo Litigation” (Text Only)). Judge Reeder restated his argument that the injunction would be “a prior strike against speech”, a stance consistent with this legal proceeding and which the applicants, for the first time at the oral hearing, denied was the case, contradicting their own pleadings, case citation presented at the oral hearing (Exhibit “HCA Defamation Citation Dissected on Gripe Site” – (Text Only)) and proposed order;
HAMEL: So to — to clarify, and I think our original order that was attached to our injunction was unclear. We are not seeking to have any prior restraint on any speech from Mr. Burke.
See; Exhibit “HCA Transcript TI”.
Both legal disputes involve applications for injunctive relief, and Mark Burke contends that, given the precedent set in the HCA case, such attempts should fail again. A court transcript of the hearing is provided above, is also available on the docket and also available at KingwoodDr.com, a constitutionally protected gripe site owned and maintained by Mark Burke.
Reviewing Bob’s operative Petition, he suggests otherwise. See Paragraphs 33-35 (Evidence in support of Temporary Injunction). Paragraphs 33 and 34 can be discounted as they only refer to the articles and exhibits presented by Bob in his application, as that is not sufficient evidence. Rather it only proves the existence of the articles.
For media Defendants, failing to investigate before publishing isn’t indicative of actual malice unless there’s a high degree of awareness of probable falsity. The duty to investigate arises only when the publisher has a strong subjective awareness of the likely falsity of statements, as clarified in legal precedents such as Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989) (citing Garrison v. Louisiana, 379 U.S. 64, 74 (1964)).
The media Defendants can confirm, neither malice nor falsity applies here. There is only one article which could potentially obtain damages for actual malice, the first article (Exhibit “First Article Bob” (Text Only)), but this allegation is disproved by the media Defendants. As stated in this response, any and all other articles complained of were published after litigation commenced and are protected by laws previously discussed. Furthermore, Bob did not request retraction. See; “Actual malice is a necessary element to sustain an award of exemplary damages.” Amendariz v. Mora, 553 S.W.2d at 407.
Damages: Any Alleged Harm to Bob’s Reputation Can be Measured Easily
Paragraph 35 is telling. Bob claims Defendants false claims are causing significant harm to his reputation. He expands by stating that “it is impossible to measure” (emphasis added) the number of prospective customers who do not contact him because of LIT’s articles. And at para. 43, he claims irreparable harm leading to a request for [general] damages, para. 44. Finally, at para. 45 he claims, without a scintilla of proof and contrary to the laws and constitution(s), he’s likely to succeed on the merits.
These statements affirm Bob’s explicit assertion of experiencing financial losses, primarily attributed to a decline in leads generated from specific keyword internet searches linked to LIT’s articles. Bob contends that these particular online searches alone have resulted in substantial damage to his reputation. Consequently, he seeks both financial compensation and urgent injunctive relief before substantiating his claims during the trial.
However, Bob’s request is premature as “Texas courts require that a plaintiff seeking damages based on lost profits from future business opportunities adduce evidence establishing that prospective customers would have done business with the plaintiff absent the defendant’s misconduct.” See Horizon, 520 S.W.3d at 861. Here, Bob has failed to provide any evidence; zero, zilch – despite the evidence being readily available in the form of financial data and records. Bob’s assertion that “it is impossible to measure” his projected loss of income only hinders the likelihood of his success on the merits as this is an essential requirement to obtain damages.
Refuting Bob’s Claims: LIT’s Articles Supported by Preponderance of Evidence
Contrary to Bob’s assertions, LIT’s investigative articles stand firm against his allegations, a fact even acknowledged by Bob in his pleadings and exhibits. LIT delved into and publicly disclosed its findings about Bob, a matter deemed of public concern. This investigative initiative was prompted by Bob’s lawsuit, which erroneously disparaged the business model and integrity of the media Defendants. LIT’s thorough examination included the scrutiny and publication of articles pertaining to Bob’s recent caseload before Harris County District Courts.
The media Defendants’ published findings provide compelling evidence, revealing that a substantial portion of Bob’s business and recent income is linked to a limited number of existing clients, personal acquaintances, and referrals from his role as a highly public figure, a wingman for the government at both state and federal level.
LIT’s evidence reinforces the media Defendants’ conclusions, indicating that Bob maintains additional business interests beyond his law firm with these existing clients.
Notably, Jeffrey Stallones (“Jeff”), CEO of Associated Energy Group, LLC (“AEG”), emerges as a significant client in Bob’s caseload, including the article that triggered the current lawsuit.
The identity and business relationship between Bob and Jeff are corroborated by Tricia Lugo, a former bookkeeper for Jeff, in her Original Counterpetition (image no. 106851628, Mar. 1, 2023). This document, filed in Harris County District Court Case No. 202252190, styled MAPLE RESIDENTIAL LTD vs. LUGO, TRICIA in Court 113 (Aug. 22, 2022), lists both Bob and Jeff as parties.
In paragraph 26 of her complaint, under the unjust enrichment section, Tricia Lugo asserts: “The Stallone Defendants, Mr. Kruckemeyer, and Jefferey Stallone are improperly holding funds to be paid to Tricia Lugo and owed her in accordance with the business agreements of the Parties.” This is published on LIT, (Exhibit “Tricia Lugo Article” (Text Only)) but excluded from discussion in Bob’s “Amended Notice of Hearing on Plaintiff’s Application for Temporary Injunction”, visible only the thumbnail capture page he submitted as Exhibit 4, image no. 110968932, Oct. 24, 2023.
These documented details, supported by the preponderance of evidence, substantially contradict Bob’s claims, and underscore the legitimacy of LIT’s reporting on matters of public interest, and involving a known public figure.
Absence of Bob’s Financial Records as Benchmark
The cornerstone of LIT’s published findings and conclusions in their investigations hinges on Bob’s financial records, which are notably absent. Granting time for a limited discovery process and gaining access to Bob’s recent financial accounts becomes mandatory to validate LIT’s assessments. Alternatively, as this filing is submitted prior to the remote hearing, there’s a window of opportunity for Bob to voluntarily disclose a comprehensive breakdown of revenue per client over the last three years. This breakdown should specify the percentage of clients who were existing, as opposed to those generated purely through internet leads, excluding client referrals or other forms of leads.
The Dilatory Nature of Bob’s Application for Injunctive Relief
In paragraphs 45-50, Bob expresses concerns about probable, imminent, and irreparable injury. However, since his initial communication with LIT in August 2022, there has been a noticeable absence of independent evidence or support from the Texas Attorney General, despite his reliance on his own interpretation of Texas statutes and debt collection laws. Bob’s extensive engagement with LIT’s website, leading to the marking of his purported IP addresses as malicious and subsequent quarantine, hasn’t hindered his continued access. This is evidenced by the exhibits, including images in an office setting, displaying LIT’s website on a laptop.
It’s evident that Bob has been vigilantly monitoring LIT’s numerous articles and ongoing investigations involving lawyers and law firms in the creditor rights vertical in Texas. Despite this continuous observation, Bob opted to file for a temporary injunction only in October 2023, and crucially, without presenting any supporting evidence, despite having ample time to do so. Consequently, Bob’s request for injunctive relief is dilatory and warrants denial.
Summary: Inadequacy of Evidentiary Proof for Injunctive Relief
In summary, the current application, along with exhibits and affidavits, fails to provide even a trace of evidentiary proof. Consequently, it lacks the substance necessary to establish that Bob has demonstrated a probable right to recovery on any of his claims.
Of course, if you’re working in a set legal discipline, like the mercenary healthcare marketplace, lawyers will marry into this profession to ensure judicial opinions will fall kindly on the side of the hospitals and any doctors who are sued. https://t.co/zhBqXa6zeU @HCAHouston pic.twitter.com/JHCGh2WvqK
— lawsinusa (@lawsinusa) October 17, 2023
As stipulated in the precedent set by the Texas Liquor Control Board v. Diners’ Club, Inc., “All persons against whom the injunction must run in order to make it effective and whose interests will be injuriously affected should be made parties defendant” (347 S.W.2d 763, 767, Tex. Civ. App. 1961). It’s noteworthy that Bob formally dismissed his claims against Joanna Burke on June 26, 2023 (image no. 108863942). Despite this dismissal, Joanna Burke’s interests are intricately tied to the proposed injunction, and as such, her inclusion in the legal proceedings is crucial for a comprehensive understanding of the potential repercussions on her.
Where verification of a pleading, an affidavit, or a declaration is made on behalf of a party to an action, it must set forth the representative capacity and, in the case of a corporation, the title of a person so verifying or making the affidavit or declaration and must contain a statement that the person has authority to verify the particular pleading or make the affidavit or declaration on behalf of the person’s principal.
Bob’s Verification is defective because it does not specify the representative capacity, it merely states “My name is Robert J. Kruckemeyer.” Nor does it confirm his ‘authority to verify’. Compare with 202233737 – SALAMANCA, PABLO vs. KALKAN, FERCAN (Court 157), Verification, image no. 102343726, dated June 7, 2023.
A trial court should not grant a temporary injunction based on a petition verified by a defective affidavit when the question of the sufficiency of the affidavit has been raised prior to the introduction of evidence. Kern v. Treeline Golf Club, Inc., 433 S.W.2d 215 (Tex. App.—Houston [14th Dist.] 1968, no writ). For the foregoing reasons, the media Defendants herein raise the question of the sufficiency of Bob’s verification.
Procedurally, Bob’s pursuit of a Temporary Injunction has taken an unconventional turn. Notably, his Motion(s) for a Temporary Injunction lacked a mandatory Certificate of Conference, violating the Local Rules which clearly extend the requirement to all motions, except those specifically exempted. These exemptions do not apply to Bob’s motion. See;
Local Rules re MOTIONS: “3.3.6 Extension of Certificates of Conference. The certificates of conference required by the Texas Rules of Civil Procedure are extended to all motions, pleas and special exceptions except summary judgments, default judgments, agreed judgments, motions for voluntary dismissal or non-suit, post-verdict motions and motions involving service of citation.”
On October 10, 2023, Bob submitted his initial Notice of Hearing on Plaintiffs’ Application for Temporary Injunction. Surprisingly, this was swiftly added to the October 31, 2023 hearing docket, a noteworthy departure from the customary 2-3 months’ notice typically required before Judge Craft. An ensuing email exchange between Mark Burke and Ms. Lopez, Clerk at Court 189, revealed discrepancies in the scheduled hearing time, with Ms. Lopez advising Bob to amend his Notice of Hearing to reflect the corrected time.
On October 24, 2023, Bob filed a pleading labeled “Temporary Injunction and Trial Setting” on the docket. This is followed by
“PLAINTIFF’S VERIFIED APPLICATION FOR TEMPORARY INJUNCTION AND AMENDED APPLICATION FOR PERMNENT [sic] INJUNCTION”, along with an “Amended Notice of Hearing on Plaintiff’s Application for Temporary Injunction”, with separated Exhibits docketed on the same day, October 24, 2023.
In the early morning of Friday, October 27, 2023, Mark Burke sent Bob and Randy an email stating;
Gents, Please be on notice: I will be filing a formal response to Bob’s Second Amended Petition and Application for Injunctive Relief masquerading as an Amended Notice of Hearing in advance of the scheduled TI hearing. The response will strongly object to all Bob’s allegations and exhibits presented therein. In reference to the application for the TI, the main arguments presented by Bob will be contested in great detail and supported by precedential case law. Due to the limited time before the hearing, interrupted by a weekend, please advise by return if you are opposed or unopposed to the media defendants response. Cheers, Mark Burke, Blogger Inc.
Bob responded, stating;
Mr. Burke, I reserve the right to make all appropriate objections to any filing you wish to make. Robert Kruckemeyer
See; Exhibit “Email Conferring with Bob and Randy” 10/27/2023.
Late in the afternoon, Friday October 27, 2023, Bob electronically submitted yet another Amended Filing, titled “Amended Temporary Injunction and Trial Setting,” consolidated with exhibits, without separating them.
As articulated in Mark Burke’s email thread, the media Defendants object to the scheduled hearing, contending that Bob failed to comply with local rules, and the Clerk should not have calendared the motion. Importantly, none of Bob’s flurry of motions related to the hearing contains a Certificate of Conference, a requirement stipulated by local rules. The Clerk’s erroneous setting of the hearing(s), labeled as “Temporary Injunction (Motion for),” contradicts established legal precedent. See; James v. Tex. Workforce Comm’n, No. 05-12-00635-CV, at *6 (Tex. App. Feb. 19, 2013).
As of the filing of this response and objection on October 30, 2023, there is no Supplemental Certificate of Conference, a mandatory document which should have been timestamped at least two days before the scheduled hearing. Consequently, the hearing is deemed a nullity and cannot proceed as planned on October 31, 2023, at 10:05 am.
In light of the numerous independent grounds presented by the Defendants, which unequivocally support the dismissal of Bob’s lawsuit and denial of his application for temporary and permanent injunctions, it is evident that Bob’s threadbare and baseless lawsuit has been initiated solely for the purpose of harassment.
As a result, Defendants Blogger, Inc. d/b/a LawIn Texas.com [sic], et al, respectfully urges the Court to dismiss all of Plaintiff’s claims and causes of action against the Defendants and denies the request for a temporary injunction with prejudice. Furthermore, the Defendants request any other relief that they may be entitled to under the law.
The actions of the Plaintiff have caused undue burden and unnecessary expenditure of time and resources on the part of the Defendants.
This verified response seeks to put an end to this frivolous and vexatious litigation once and for all. By granting this relief, the Court will send a clear message that such abuse of the legal system will not be tolerated.
It is with utmost sincerity that Defendants Blogger, Inc. d/b/a LawIn Texas.com [sic] submits this request for relief to the Court on the 30th day of October, 2023. The Defendant firmly believes that the evidence and arguments presented in this motion overwhelmingly support the call for dismissal with prejudice.
In closing, I, Mark Stephen Burke, both individually as a named defendant, in the capacity of CEO and Director on behalf of Blogger Inc., with due authority and competency, and as a presiding resident of Kingwood in the livable forest of Harris County, Texas, born on June 20, 1967 in Harare, Zimbabwe, and currently holding a valid British Passport and U.S. Permanent Residency Card (last 3 digits are 529), a valid State of Texas Driver License (last 3 digits are 949), and a Social Security Card (last 3 digits are 162), do solemnly declare under penalty of perjury that the foregoing statements are true and correct.
This verified declaration, made under Chapter 132, Civil Practice and Remedies Code, holds significant weight in legal precedent, as evident in ACI Design Build Contractors Inc. v. Loadholt, 605 S.W.3d 515, 518 (Tex. App. 2020), McMahan v. Izen, No. 01-20-00233-CV, at *15-17 (Tex. App. Sep. 2, 2021), and In re Whitfield, No. 03-21-00170-CR, at *1 n.1 (Tex. App. Nov. 10, 2021).
The Defendants have conferred before submitting this response and separately attach a proposed order for the court’s consideration.
RESPECTFULLY submitted this 30th day of October, 2023.