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UNITED STATES DISTRICT COURT
for the
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
FORBA HOLDING, LLC
Plaintiff(s)
v.
DEBBIE HAGAN,
Defendant(s)
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Civil Action No. 4:08-cv-00137JHM-ERG
MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF’S REQUEST
FOR PARTIAL SUMMARY JUDGMENT AND MOTION FOR SANCTIONS
COMES NOW the Defendant, Debbie Hagan, Pro Se, requesting this Honorable Court
a 45 day extension to file a response to Plaintiff’s Motion For Summary Judgment
and Motion For Sanctions.
Defendant contacted Plaintiff’s attorney via email on
Friday, January 2, 2009 at 12:10pm for agreement. Defendant waited to file this
request to give Plaintiff’s attorney time to respond. On Monday January 5, 2008 a
reply was received from Plaintiff’s attorney:
“We cannot agree to an extension for reasons that should be obvious in light of the
relief sought in the pending motions. We would like to end this litigation, but that
will require your cooperation and payment of the fees your actions have forced our
client to incur.”
Along with the voluminous amount of pleadings filed by the Plaintiff’s attorneys, the
complexity of the issues in this litigation and the holiday season, attorney(s)
knowledgeable in this area of the law has been difficult to interview with and/or
retain.
As well, I’ve asked FORBA’s attorney what they want to settle and they will
not respond to my question.
Defendant has met with two attorneys and each said they would need at least that
amount of time to become familiar with the issues raised in the Plaintiff’s Verified
Complaint, put together a team, and research counter-claims that need to be filed
against Plaintiff.
As this court is aware, this is an unusual case for this court as well as attorneys
practicing in the locale.
This in no way should be construed as a deliberate delay of
the proceeding of this litigation as Defendant wishes this to come to a final
conclusion as soon as possible.
Date:
____________________
Respectfully Submitted By:
________________________________________
Debbie Hagan, Pro Se
4453 Strickland Drive
Owensboro, Kentucky 42301
[email protected]
270-316-0743
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served via U.S. mail on
this the _________ day of ________________, 2009 to the following:
Attorney For Plaintiff
Jonathan Rose, Esq.
Thor Y. Urness, Esq.
Boult, Cumming, Connors & Berry, PLC
1600 Division Street, Suite 700
PO Box 340025
Nashville, Tennessee 37203
(615) 252-2308
______________________________
Debbie Hagan
4453 Strickland Drive
Owensboro, Kentucky 42301
270-316-0743
UNITED STATES DISTRICT COURT
for the
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
FORBA HOLDING, LLC
Plaintiff(s)
v.
DEBBIE HAGAN,
Defendant(s)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 4:08-cv-00137JHM-ERG
ORDER GRANTING DEFENDANT’S REQUEST FOR EXTENSION OF TIME TO
FILE RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
MOTION FOR SANCTIONS
Defendant, Debbie Hagan, Pro Se, is hereby granted a 45 day extension of time to
respond to Plaintiff’s Motions For Summary Judgment and Motion For Sanctions.
Date:
____________________
________________________________________
District Judge
FORBA HOLDING, LLC
Plaintiff(s)
v.
DEBBIE HAGAN,
Defendant(s)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 4:08-cv-00137JHM-ERG
MEMORANDUM IN SUPPORT OF MOTION FOR EXTENSION OF TIME
The Defendant, Debbie Hagan, Pro Se, pursuant to LR 7.1 (a) respectfully
submits this memorandum in support of her filed Motion For Extension of Time.
INTRODUCTION
1. FORBA Holding, LLC has filed this action accusing Defendant, Debbie Hagan, Pro
Se, of willful disclosure of copyrighted materials and trade secrets as well as
defamation. The documents in question of having been copyrighted and infringed
upon were not posted on her website, only links to an Internet search engine’s copy
of these documents. Defendant is no guiltier of these acts than the search engine,
Google. As well there is a question as to whether any of the documents were
protected under copyright at all. As with spreadsheets, how can they be
copyrighted since they are under constant change and revision?
2. There are three (3) documents FORBA alleges Defendant infringed upon their
copyright though they have tried to entwine four (4) works which it calls “Copied
Confidential Documents” Doc. No. 1 P. 28. They refer to those documents as: “a
confidential marketing plan,” “a confidential recruitment strategy presentation,” “a
confidential advertising budget, “and a confidential facility information list.”
3. However, FORBA alleges that is has registered three (3) completely different
documents, which it calls “Copyrighted Documents” These documents are “FORBA’s
Guide To Dental Health Screenings,” a presentation called “National Children’s
Dental Health Month,” and a white paper titled “Preventative Resin Restorations.”
Doc. No. 1 P. 63.
4. In none of FORBA’s pleading have they demonstrated that copyright protection
has been applied for, nor has it shown any copies of copyright protection
applications.
5. Upon notification in the form of a Verified Complaint, the Defendant willingly
took down all reference to all documents, some not even mentioned in the Plaintiff’s
Complaint as to demonstrate her willingness to cooperate with anything that could
be construed as infringing on Plaintiff’s rights. However since signing the Consent
Injunction, Doc. No. 11, Plaintiff’s attorney(s) have used it repeatedly as an
admission of guilt by Defendant, or that the Defendant knowingly has no defenses
or legitimate response to Plaintiff’s Motion for Partial Summary Judgment, Doc. No.
18. This is not the case whatsoever and Defendant wishes to make this perfectly
clear.
Defendant admitted no guilt or wrong doing by signing the Consent
Injunction. Amazingly Defendant’s cooperation is being construed as admission of
guilt, wrong doing or having no defenses by FORBA through its attorney(s).
Defendant can not stress enough that was not the case in her willingness to agree
to take down any documents that FORBA was requesting. Had FORBA contacted
the Defendant, which they easily could have, and asked the links be removed
Defendant would have gladly removed those links. However FORBA chose to file
suit against Defendant instead of Brentwood Communicaitons.
6. FORBA through its attorney(s) has tried to tie Defendant’s hands so that she is
unable to defend herself from FORBA’s allegation in their Complaint; example is the
Consent Injunction Doc. No. 11 and Motion For Sanctions Doc No. 22. FORBA is
now asking for Defendant to be held in Contempt of Court for simply including items
and listing information that counters FORBA’s claims against Defendant. Being Pro
Se, Defendant had no idea she would not be able to use evidence and honestly
respond with information to defend herself.
7. It is clear, through the assumptions and allegations made by Plaintiff through its
attorney(s) in the Motion for Summary Judgment Doc. No. 18
FORBA, through its
attorneys, is only trying to bully and bury the Defendant in legal pleadings and
using this court to grandstand its Strategic Litigation Against Public Participation
(SLAPP) suit. Clearly FORBA knows she has no money for them to attain and only
wants to see that she spends what little she has on attorney fees.
8.
FORBA’s Motion For Partial Summary Judgment, Doc. No. 18, requesting this
court to award attorney fees for the time it took to locate Defendant is unfounded.
In their motion they fail to mention they didn’t take the easiest way to locate the
Defendant; by asking her. They had and have had her email address for a year,
and have not contacted her about any issues brought about in this litigation.
Defendant’s name was clearly used on the blog demonstrating she in no way was
“in hiding” or trying to be anonymous.
9. FORBA also accused the Defendant of having a Ghost Writer attorney, trying to
once again diminish her defenses. Defendant denies this completely, however
flattering it was. FORBA through its attorney(s) may have been lead to believe this
based on information Defendant had to Docket Numbers, etc. Defendant has had a
P.A.C.E.R. account for approximately 12 years.
10. FORBA Holding admits the website was open to the public for viewing and
downloading during August, September and October of 2008 a total of
approximately 85 days. Doc. No. 1 P. 19. In the real world that would be like
setting all of its documents out in the middle of a parking lot for anyone to
rummage through and take at will. However, in FORBA’s Verified Complaint, Doc.
No. 1 P. 18 has stated that only FORBA, Brentwood Communications and
Defendant along with Google’s crawlers have ever been to the site in question;
ForbaInfo.com. Therefore even though this links posted by Defendant to the
‘snapshot’ of the documents could not have resulted in any damages. In fact if not
for Defendant informing of these links to the Google “snapshots” FORBA would not
have known they existed and would not have known to contact Google to have
them disable as stated in Doc. 1 P. 26 & 27.
ALLEGED COPYRIGHT INFRINGEMENT
12.
There are three documents FORBA through its attorney(s) allege are copyright
protected:
1. Preventive Resin Restoration: There are many documents titled “Preventive
Resin Restorations” available for use from the American Dental Association other
organizations and doctors, all freely available on the Internet.
According to a
Google Search, there are 39,000 links. It appears to be a “term” used in dentistry
not a copyrighted document definition:
The cavity is obturated with filled resin and the unaffected pits and fissures are
protected with pit and fissure sealant.
2. National Children’s Health Month: “National Children’s Health Month” is
February; Copyrighting a yearly event is not possible.
3. FORBA’s Guide to Dental Health Screenings: There are thousands of
“Guides To Dental Health Screenings” available for viewing on the Internet and it is
doubtful FORBA’s would be much different, and at most a compilation of various
techniques. Most are all the same.
13. Again, defendant did not download, upload or copy any of the above
documents FORBA refers to as being protected by Copyright Law. Therefore there
is no Copyright Infringement in question.
ALLEGED TRADE SECRET VIOLATION
14. FORBA has admitted Brentwood Communication was responsible for the
website, ForbaInfo.com, as well as the protection and security of any sensitive,
confidential, copyrighted, or trade secret information uploaded to the website. Doc.
No. 1 P. 16
Brentwood Communication is the entity who breached its fiduciary
responsibility to FORBA and should be the defendant in this litigation and
responsible for any damages for “Misappropriation of Trade Secrets”, not the
Defendant.
15. As FORBA admits, through its attorney(s) (Doc. No. 1 P. 27 ) FORBA contacted
Google to disable the links in Google search engine to the said documents. Since
Google can not be held responsible for displaying links to these documents, nor can
the Defendant for only displaying what Google displayed which is clearly stated in
Plaintiff’s exhibit A in its Verified Complaint, Doc. No. 1
16. FORBA admits it was the Defendant who brought to their attention the fact
these Google “snapshots” of their documents existed, Doc. No. 1 P. 26 & 27.
But
not for the Defendant pointing this out, FORBA’s documents would still be available
to the public due to the lack of security by Brentwood Communications, who had a
contractual obligation to protect all the information on ForbaInfo.com as FORBA has
admitted. Doc. 1 P. 16.
17. FORBA alleges that the following three (3) documents are “Trade Secrets”;
1. FORBA Marketing Plan: This document was not downloaded, uploaded or
copied in any manner, again only a link to Google’s copy of the document was
displayed. Defendant did nothing more than Google.
2. FORBA’s Master Center File: A list of clinics, their addresses, phone numbers
and names hardly seems to be a “Trade Secret”. Much of the same information is
located on Small Smiles various websites. At most this document is a secret of the
many clinics of which FORBA has control of which they do not want the authorities
made aware as was indicated in the filing of the Declaration of Jonathan Rose by
the blacking out of clinics managed/owned by FORBA in Albany, New York and
Gary, Indiana. FORBA certainly has secrets but “Trade Secrets” were not
disseminated by Defendant.
3. FORBA’s Physician Recruiting Strategy: This document was not
downloaded, uploaded or copied for display; only a link to Google’s copy of the
presentation was displayed. Showing a link to a place on the Internet is not
tortuous.
Again, Brentwood Communication was the only entity with fiduciary responsibilities
to FORBA and is the guilty party for the release of any Trade Secrets.
In an email from FORBA’s attorney dated Sunday
November 16, 2008, Thor Y. Urness stated:
“The immediate relief we are seeking is for you to
take down or otherwise disable the public’s ability
to obtain internal documents of our client from you
site.”
“Your consent injunction in the form of order
attached to our motion would not resolve the
balance of the case as to the defamatory
statements made throughout your site, but would
narrow the issue in the case” Exhibit 1
In an email from FORBA’s attorney dated Monday
November 17, 2008, Thor Y. Urness stated:
“The immediate relief we are seeking concerns the
content of this injunction, but is not the only relief
we are seeking. This case also concerns the
defamatory statements that appear throughout
your site”
Exhibit 2.
18. Defendant was clearly lead to believe that if she signed the Consent Injunction
the only other matter under dispute was the defamation count.
DEFAMATION
19. Clearly FORBA, through its attorney(s) is avoiding focus on the defamation
allegations. Truth is the best defense and FORBA certainly does not want the ‘truth’
to be told as is demonstrated throughout exhibits in Defendant’s Answer Doc. No.
17 Exhibits D, E, F, and G, and in Plaintiff’s blacking out certain clinics it manages
as demonstrated in Doc. No. 21 Exhibit A. However Plaintiff through its attorney
failed to black out these clinics in its Verified Complaint, Doc No. 1 Exhibit A.
Defendant has done nothing more than made fair comment, exercised her First
Amendment rights.
ARGUMENT
20. Over the past several weeks since being served with this Complaint there have
been many weeks it was impossible to meet with an attorney since there have been
several weeks where offices were open only two (2) days because of the holidays.
21. On Wednesday, December 31, 2008 was the first time Defendant was able to
have a conference with two attorneys about this litigation.
She was told that if she
retained them today (Wednesday) they would need at least 45 days to study the
case, assemble a team of attorneys versed in Trade Secret and Copyright law and
file all appropriate pleadings including proper counter claims.
22. Defendant was also informed that the cost of this litigation would likely take
months if not years to resolve.
23. Defendant is now forced to look to Organizations and larger law firms for Pro
Bono representation unless something changes. Some organizations require you to
apply and await a response. For instance the ACLU required an application and a
wait of up to 6 weeks for a response. Defendant has sent out correspondence to
many law firms and organizations seeking assistance and is now awaiting replies.
24. This extension is much needed for reasons stated above. The Defendant has
also contacted Plaintiff’s attorney to negotiate an equitable settlement, if possible,
that could resolve this before it goes any further. As FORBA, through its
attorney(s), has stated on at least two (2) occasions via emails it would like this
matter settled as soon as possible.
CONCLUSION
25. For the reasons stated above, Defendant requests the Court to grant an
extension of 45 days to respond to Plaintiff’s Motion for Summary Judgment and
Plaintiff’s Motion for Sanctions.
Respectfully Submitted by:
____________________________
Debbie Hagan, Pro Se
4453 Strickland Drive
Owensboro, Kentucky 42301
270-316-0743
[email protected]