According to the office of Judge Thomas Feinman of the New York State Supreme Court, Nassau County, a motion to dismiss eight of the 11 defendants from small press publisher Cody Pickrodt’s defamation lawsuit is under review.
The judge’s decision will be made within the next 60 days. The process started Feb. 19, 2019.
If in favor of the defense, the decision will discharge cartoonists Laura Knetzger, Emma Louthan, Emi Gennis, Ben Passmore; publisher Josh O’Neill; comics critic Rob Clough; and cartoonists and publishers Jordan Shiveley and Tom Kaczynski/Uncivilized Books from a $2.5 million dispute.
Defense attorney Aurore DeCarlo of C.A. Goldberg submitted the motion on Nov. 5, 2018.
She later withdrew the request and resubmitted it to account for changes made in Pickrodt’s initial complaint, which alleges defendants Whit Taylor, Knetzger, Louthan, and Gennis made defamatory statements in a publicly shared Google document, and that defendants Passmore, Hazel Newlevant, Shiveley, Morgan Pielli, O’Neill, Clough and Kaczynski/Uncivilized Books defamed the plaintiff via social media.
The authors of the Google document accused Pickrodt of rape, sexual harassment, making anti-Semitic remarks, and withholding royalty payments. The rest voiced support for the alleged victims and denounced Pickrodt, except Kaczynski, who did not post such content on his personal accounts. An affidavit filed by Pickrodt claims Uncivilized Books’ social media is operated by Kaczynski because he owns the company.
DeCarlo and Pickrodt’s attorney, Joe Carbonaro of Carbonaro Law, did not offer comment at the time of publication.
In the amended motion, the defense argues that Pickrodt’s claims of interference with business relationships and infliction of emotional distress are duplicative of his claims of defamation per se and defamation. Additionally, it questions the court’s jurisdiction due to the defendants’ residencies in other states, their lack of business within New York and their having been outside state lines when the allegedly defamatory statements were made.
Carbonaro has filed in opposition to the motion. The memo arrived with an affidavit signed by Pickrodt, in which the plaintiff alleges additional ties between the eight defendants who seek dismissal and New York businesses, events or marketing efforts. Pickrodt states these were either knowingly or accidentally omitted from the defense’s previous filings.
Some of these include Gennis’ freelance work for The Nib (which is owned by First Look Media, who has an office in New York City) or Brooklyn-based Bird Cage Bottom Books’ distribution of work by Louthan. Pickrodt also cites several of the original statements made by defendants, in which they called for him to be banned from the comic book community. He alleges these communications were intended to block his attendance of significant New York comic book conventions, such as New York Comic Con or The MoCCA Arts Festival.
Pickrodt asks the court for a limited discovery process to find facts related to jurisdiction, such as what percentage of the defendants’ overall sales were made in New York, what New York-targeted marketing efforts they engaged in, and whether they made any undeclared attempts to conduct business within the state.
“[The plaintiff] should not be forced to ‘take defendants’ word for it’ when they assert minimal business contacts,” Pickrodt’s response to the motion states. “Something less than even a prima facie [at first look] showing is sufficient to allow a plaintiff to conduct limited discovery into the jurisdictional issue.”
Pickrodt 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 - except when business transactions relate to the alleged defamation.
The defense responded to the plaintiff’s opposition on Feb. 18, 2019.
It argues Pickrodt has not offered a sufficient start to allow for discovery of additional facts, in that his claims of additional connections between the defendants and New York are “speculative” and “unfounded inferential leaps.” It states Pickrodt has failed to present a significant connection between the defendants’ New York activities and their allegedly defamatory remarks.
“The Court of Appeals has been clear: New York courts should consider whether the relationship between a defendant’s alleged New York activities and the ‘allegedly offending statement is too diluted,’” the Feb. 18 response reads, citing SPCA of Upstate New York, Inc. v. Am. Working Collie Ass’n. “Plaintiffs should not be permitted to harass the out-of-state defendants and waste judicial resources by conducting a doomed fishing expedition.”
If the court does dismiss the eight defendants represented in this motion, Taylor, Newlevant and Pielli will still need to defend themselves against the lawsuit. All are residents of New York.
The three have each submitted amended answers to Pickrodt’s complaint. The affirmative defenses within them 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 he filed the lawsuit in bad faith and is not entitled to the remedies he seeks; and that any damages he has suffered are the result of his own action.
Taylor has also filed a counterclaim to the complaint, making an allegation in civil court that the plaintiff raped her in New York City in December 2013. It refers to Pickrodt’s alleged conduct toward her as a felony and a “crime of violence motivated by gender.”
Taylor seeks punitive and compensatory damages at unspecified amounts, as well as attorneys’ fees and the lawsuit’s dismissal. Newlevant and Pielli also request attorneys’ fees and dismissal.
Pickrodt has formally denied the counterclaim.
In a Jan. 7, 2019 filing, he asserted that Taylor “consented to engage in sexual intercourse” and that none of the alleged acts posed a “serious risk of physical injury.”
DeCarlo previously said Taylor is prepared to undergo the discovery process, in which additional evidence related to her counterclaim would be presented. Taylor originally stated in her Google Document testimony that a friend took her to a hospital after the alleged rape occurred.
DeCarlo has not said what evidence will be provided to the court, but she acknowledged that hospital records from Taylor’s reported visit could play a role.
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.
The Comics Journal’s coverage of this lawsuit, so far: