The Oatmeal v. FunnyJunk, Part XII: Brave Sir Charlie Ran Away
[All of our coverage of Charles Carreon's journey from relative obscurity to justifiable infamy is collected under this tag.]
Charles Carreon continues to be Charles Carreon, only more so.
Back in Chapter Eight I describe how the blogger behind "Censoriousdouchebag — a satirical diary about Charles Carreon" sued Carreon for declaratory relief in federal court in the Northern District of California. That was the most effective way to deal with Carreon's censorious threats to the blogger, which amounted to "I'm going to sue you at some point, in as inconvenient a location as possible, in as expensive a way as possible." Here's a reminder of that threat, directed to the blogger's pro bono attorney, Paul Alan Levy of Public Citizen:
As far as when and where I will sue your client, be certain that it will occur if your client does not cede the domain, and advise her of ten things:
1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that's an equitable defense that asserts "you waited too long to file this."] would not kick in for at least three years.
2. That venue in this action can be validly laid in at least three places, maybe four, if she doesn't live in Arizona, Florida, or California.
3. That I am capable of employing counsel to handle my claim against her, who will incur attorneys fees and seek recovery of the same. I filed pro se against Inman simply for the sake of convenience and the need for speed, and not from a lack of resources.
4. That the law in this area cannot be predicted with certainty, will evolve substantially over the next three years, during which I will be using digital forensics to establish actual trademark damages in addition to seeking the maximum cybersquatting penalty of $100,000.
5. That a judgment that recites that the domain was obtained by fraud upon the registrar, in the form of a misrepresentation that she did not know of my trademark on the name, might well be non-dischargeable in bankruptcy.
6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.
7. That you cannot guarantee that Public Citizen will provide her with free legal services on June 1, 2015, when I may very well send the process server 'round to her door.
8. That I have the known capacity to litigate appeals for years (check my Westlaw profile, and of course, the drawn out history of Penguin v. American Buddha, now in its third year, having passed through the Second Circuit and the NYCA, and still hung up in personal jurisdiction in the SDNY).
9. That the litigation, being of first impression in virtually every Circuit, grounded in a federal question, involving a registered trademark, and dispositive of many open issues in the field of Internet commerce and speech, might very well continue for a decade.
10. That Public Citizen might well be unable and/or unwilling to provide her with representation until the resolution of such an extended course of litigation.
Once the blogger sued him, Carreon could have stood up — he could have come to court to defend his belief that he has a valid claim against the blogger. Instead Carreon has been doing what he can to hinder and delay the lawsuit by cowering and evading service. The blogger — ably represented pro bono by Paul Alan Levy of Public Citizen and Cathy Gellis — has been attempting to serve Carreon, and Carreon has been going to ridiculous lengths to avoid being served. You can read Paul's brief describing Carreon's evasions here, and Paul's supporting declaration here. Or consider the judge's summary in an order from this week:
Plaintiff seeks a declaratory judgment that his satirical website does not infringe the trademark defendant has in his own name. Prior to filing a complaint, plaintiff’s counsel was in contact with defendant via email. After filing the complaint, defendant and his wife publicly discussed the pending litigation. Plaintiff’s counsel mailed defendant a request for waiver of summons to his address in Tucson, Arizona, which defendant did not execute. Instead, the entire envelope was mailed back to plaintiff, unopened, inside a second envelope. This same sequence of events was repeated after plaintiff filed an amended complaint. At plaintiff’s request, the Court issued a summons, and plaintiff hired an Arizona process service company to serve the summons at the residential address. On the first visit, the server announced himself and was told “No thank you,” and left with the papers. On the second and third visits, nobody answered. The process service company then tried to serve the summons and complaint by certified mail, but the package was never claimed.
During this time, defendant contacted the general counsel of Walgreens, plaintiff’s employer, stating plaintiff had used Walgreens’ computer equipment or internet access to create the allegedly actionable website, and implying he might make Walgreens a party to the litigation under a theory of respondeat superior. The demand letter sent to Walgreens contained the same Tucson, Arizona address and email address that plaintiff had been using to attempt service on defendant.
On September 25, 2012, plaintiff’s counsel again emailed defendant a copy of the summons, complaint, and amended complaint using both the address listed on defendant’s letterhead and the gmail address defendant had used to correspond with counsel for both plaintiff and Walgreens.
Plaintiff’s counsel requested defendant meet and confer about plaintiff’s intent to file a motion to declare service effective. Defendant has not responded.
Regrettably, even though Carreon knows about the lawsuit, has written about the lawsuit, has threatened the blogger's former employer about the lawsuit, has refused to accept service from a process server, and has returned the lawsuit unopened, the Court has ruled that the blogger must make further efforts to serve Carreon:
Because of the due process and personal jurisdiction concerns that arise with respect to proper service of a defendant, substituted service by email is not granted out-of-hand. While defendant is apparently making service of process difficult for plaintiff, in accordance with our traditional notions of due process, plaintiff must redouble efforts at traditional service of process before resorting to this Court for authorization of substituted service.
So: now the blogger must pay to have process servers hang out and try to catch Charlie the Censor to serve him. That's an expensive proposition — about $60 per hour, in an effort that can easily take tens of hours if Carreon continues to work to evade service.
The blogger doesn't have a lot of money. Though Carreon will eventually be ordered to reimburse his service costs, right now those up-front costs are a huge barrier to him being able to get justice. This is exactly how censorious lawyers like Carreon can abuse the system to suppress criticism.
Therefore, I'd like to ask for a favor. If you've enjoyed reading this series, please consider making a modest donation to Public Citizen for the purposes of paying costs in this case, including the cost of serving Carreon. Levy's post with the donation link is here. I understand that any excess funds will be used to pay litigation expenses in other Public Citizen online free speech cases. That's a worthy cause.
Perhaps you'll say, "Ken, why don't you put your money where your mouth is?" I'd answer like this: I believe strongly enough in this case that I donated the filing fees and other initial expenses — more than $700 — out of my own pocket. Please step up and throw in a few bucks yourself to help a blogger protect himself from censorious thuggery.
Last 5 posts by Ken White
- Follow-Up: U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Right This Time - September 12th, 2014
- The Quality of Mercy Is Not Strained, But It May Have A Litmus Test - September 11th, 2014
- [Rerun from 2011] Ten Things I Want My Kids To Learn From 9/11 - September 11th, 2014
- Yale Might Want To Look Into Some Sort of Basic Civic Literacy Course - September 10th, 2014
- U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Very Wrong - September 6th, 2014