Cartoonist Whit Taylor, one of the 11 defendants named in a defamation lawsuit brought by small-press publisher Cody Pickrodt, has filed an answer and counterclaim, making an allegation in civil court that the plaintiff raped her in New York City in December 2013.
Her response, submitted on Nov. 5, 2018 in Nassau County, NY, arrived with answers from cartoonists Hazel Newlevant and Morgan Pielli, who each assert more than 30 affirmative defenses. Eight other defendants offered a motion for dismissal, which questioned the court’s jurisdiction due to their residencies in other states, their lack of business within New York and their having been in other states when the allegedly defamatory statements were made. However, this motion has been withdrawn.
Defense attorney Aurore DeCarlo of C.A. Goldberg, who represents all 11 defendants, submitted the stipulation to withdraw on Monday, Nov. 26, 2018 after Pickrodt’s attorney, Joe Carbonaro of Carbonaro Law, amended his client’s complaint to address the defense’s Nov. 5th filings. DeCarlo described the action as a formality. The motion to dismiss had addressed the contents of the original complaint. A new motion must now be filed to meet the amended version.
The deadline to file a new motion is Jan. 4, 2019, according to the stipulation.
DeCarlo said the answers provided by Taylor, Newlevant, and Pielli will be amended, too. She would not say how these documents would differ from those that have been filed, or whether they’d differ to any great degree.
Carbonaro did not offer comment.
Pickrodt’s complaint, first served in August 2018, alleges that Taylor and cartoonists Laura Knetzger, Emma Louthan, and Emi Gennis made defamatory statements against him in a publicly shared Google document. In it, the artists made their own allegations against Pickrodt, including those of rape, sexual harassment, making anti-Semitic remarks, and withholding royalty payments.
All but one of the remaining defendants - cartoonists Ben Passmore, Newlevant, Jordan Shiveley, and Pielli; publisher Josh O’Neill; comics critic Rob Clough; and the publishing company Uncivilized Books - used personal social media accounts to voice support for the cartoonists and to denounce Pickrodt. The complaint states that the last defendant, cartoonist and publisher Tom Kaczynski, also defamed Pickrodt on social media, though it does not provide an example of such content published on any of his personal accounts. Instead, it refers to statements made by Uncivilized Books, of which Kaczynski is the publisher and founder.
Pickrodt's lawsuit seeks no less than $2.5 million in damages for defamation per se, defamation, lost business opportunities, and emotional distress. As well, it now requests all defendants delete the social media posts referred to in the complaint and withhold from ever republishing them.
The Small Press Expo established a legal fund of $20,000 for the defense in September, and it’s since administered a fundraiser through the crowdfunding platform GoFundMe. The Comic Book Legal Defense Fund provided consultation. About $81,000 has been collected so far. Warren Bernard, executive director of SPX, said $13,500 of the total fund has been spent, and he estimated the final legal expense could run into the low six figures.
On the defense, Taylor’s counterclaim refers to Pickrodt’s alleged conduct toward her as a felony, as well as a “crime of violence motivated by gender,” which in New York provides the defendant a right to seek punitive and compensatory damages. Taylor seeks both at unspecified amounts, as well as attorneys’ fees and the lawsuit’s dismissal.
“[The] defendant was damaged and injured, and sustained severe mental anguish, physical pain and emotional upset. Some of these injuries are permanent in nature and duration,” the counterclaim reads. “[The] defendant incurred and will necessarily incur in the future additional medical expenses.”
DeCarlo said Taylor will argue for a specific amount in damages based upon evidence disclosed in the discovery process, which her client is prepared to undergo. In Taylor’s original statement in the Google Document, she described being taken to a hospital by a friend after the alleged rape occurred. She also stated that she confronted Pickrodt after the alleged incident, and that he made her feel uncomfortable both in person and online following it.
“I’m not going to discuss it at this time,” DeCarlo said in regard to what other evidence may be presented by the defendant. She acknowledged that hospital records from Taylor’s reported visit may be brought forward.
Pickrodt’s amended complaint states that any sexual contact between Pickrodt and Taylor was consensual. It highlights a bit of Taylor’s testimony from the Google Document, in which she wrote the plaintiff “made a move. I didn’t say no.” However, it does not refer to what Taylor wrote following this, in which she stated she had no interest in Pickrodt, and that her initial decision to not decline his advance was informed by an allegedly misogynistic comment he made earlier, as well as he having allegedly bragged about being in fights.
Taylor wrote that as things progressed, she told Pickrodt she felt sick, and she repeatedly told him to stop.
“He did not listen to me,” her testimony in the Google Document states.
Newlevant and Pielli’s affirmative defenses present a variety of arguments. They include: that Pickrodt cannot prove any of the defendants’ statements to be false; that he is a public figure; that the defendants’ statements are a matter of public interest and are fair comments; that Pickrodt’s lawsuit is barred by the First Amendment; that he filed the lawsuit in bad faith and is not entitled to the remedies he seeks; that he cannot prove injury to his reputation; and that any damages he has suffered are the result of Pickrodt’s own action.
As well, their answers claim Pickrodt’s company, Ray Ray Books, which is listed as the co-plaintiff in the lawsuit, cannot seek damages, as none of the published statements were about it. The filings add that Pickrodt failed to allege facts sufficient enough to warrant punitive damages.
Newlevant and Pielli both seek attorneys’ fees and the lawsuit’s dismissal.
Carbonaro changed Pickrodt’s complaint to address some of these defenses, as well as the then presented motion for dismissal. It details four causes of action against the defendants for defamation per se, defamation, interference with business relationships and infliction of emotional distress. It states Pickrodt has sustained a loss of income as a comic-book publisher, and cartoonists who were previously published by him will now not engage with him. It also claims one or more of the defendants knew of certain third-party business relationships and wished to interfere in a harmful manner. It labels the distress placed on Pickrodt as “severe.”
By stating the defendants sell or distribute published work in New York, Carbonaro hopes to invoke the state’s long-arm statute, which says the court may preside over a non-resident who conducts business or “derives substantial revenue” from business run within the state. It offers an exception for defamation lawsuits, though - except when business transactions relate to the alleged defamation.
The defense’s motion for dismissal had argued the eight non-residing defendants did not systematically transact business in New York. Affidavits provided by each individual admit to ad hoc business transactions within the state, such as commissioned illustration work or attending shows such as Comic Arts Brooklyn or The MoCCA Arts Festival, but deny any continuous dealings noted by any traditional indicia, such as offices or bank accounts.
If the eight defendants pursue another motion for dismissal, the plaintiffs will have another opportunity to oppose it. The defense can than reply again. Any decision made by the court regarding the motion will occur after all paperwork is submitted.
DeCarlo said lawsuits such as these, wherein a plaintiff sues to combat allegations made against them, rarely go anywhere as they are difficult to litigate. But she said she’s seen an uptick in them. C.A. Goldberg, where DeCarlo is a managing senior associate, markets itself as a firm that specializes in defending against these suits, as well as against internet abuse and sexual privacy. Notably, the firm represented actress Paz de la Huerta in 2017 after she accused Harvey Weinstein of rape.
“It’s very expensive. It’s very time-consuming,” DeCarlo said. “I’ve never seen one go to trial. They’re often all resolved either through motion practice or a settlement before trial.
“I think Mr. Pickrodt would have benefitted from exploring other ways to reach a resolution on what he’s been accused of.”
In interest of full disclosure, Alec Berry is a former employee of Uncivilized Books. The defendants Taylor, Kaczynski, and Clough have contributed writing to this website.