We were right. Publish America Scam predicted in our last post that it would be Mr. Victor Cretella who would be representing PublishAmerica LLLP in the class action lawsuit that has been filed against them. Now, at this point, was whether or not this group should be certified as a class. Here in this response, PA's counsel goes way past that issue into arguing liability.
PublishAmerica's dubious response to the class-action filed against them
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
DARLA YOOS, et al. )
)
Plaintiff )
)
v. ) Case No. 12-cv-1696
)
PUBLISH AMERICA, LLLP )
)
Defendant )
)
_______________
MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS AND TO
STRIKE
Pursuant to Fed. R. Civ. Proc. 12, Defendant Publish America, LLLP ("PA"), moves to
dismiss the complaint for failure to state a claim and to strike immaterial allegations therein.
The Court should dismiss the claims brought by Plaintiffs under the Maryland Consumer
Protection Act ("CPA") because Plaintiffs are not consumers; they have entered into a
commercial enterprise with PA pursuant to which they split the proceeds from sales of their literary work made by PA. This profit sharing relationship is not a relationship that is protected by the ("CPA"). Plaintiffs' declaratory judgment count should also be dismissed since the underlying CPA claim is defective. Furthermore, Plaintiffs are not entitled to quasi-contract remedies for unjust enrichment because their claims arise from contractual relationships with PA. For these reasons and others, as more fully explained below, this case should be dismissed.
I. PROCEDURAL BACKGROUND
Defendant PublishAmerica, LLLP ("PA") is a book publisher who put its "trust in the big league of unknown authors." Ex. A.
Plaintiffs have referenced parts of PA's website in its Complaint. PA hereby proffers
other portions of that website to provide a complete picture of that electronic document.
Blankenship v. Manchin, 471 F.3d 523, 525 n.1 ( 4th Cir. 2006) (allowing defendant to attach documents to its motion to dismiss if those documents are referenced in the Complaint). 1 When it formed in 1999, its founders "had been around in publishing for many years and had seen firsthand, the hardships involved with getting a publisher interested in an unknown author's book." Id. They figured that they could "serve as many as a thousand new authors" if they "took full advantage of the latest printing technology. . .
." Ex. A; see also Ex. B (noting that PA uses "digital printing technology, aka
Print-On-Demand "). This technology allowed PA to eliminate waste by printing copies of books as they are ordered rather than in large batches (that may ultimately remain unsold) at the time its books are released. Ex. B. From this background, PA was founded as a "traditional, royalty paying publisher."Compl. ¶21. PA defines "traditional publishing" on its website to mean "full availability to all bookstores, through the best distribution channels (Ingram, Baker&Taylor, etc.), top quality books, first rate art design, individual author support and attention, and of course no publishing fees in the contract at any time." Ex. A. PA does not include marketing to the public at large as part of its definition of traditional publisher. Instead, it only mentions that it markets its authors' books "to the industry's wholesale and distribution channels for full availability through all bookstores at home and abroad". Compl. ¶21.
PA's innovations to the publishing industry have proved to be widely popular. According to its website, it has served almost 50,000 authors since its formation in 1999. Ex. A.
These authors select PA despite being warned that it has "lower acceptance barriers than any other traditional publisher", Ex. C, that its books are not returnable, Ex. D, and that success is far from certain. In fact, the contract is explicitly based upon "the mutual understanding that neither party has guaranteed, or is to guarantee, the sale of any specific number of copies of the Work, it being impossible to predict, before publication, what success any book may attain." Compl., Exs. 1-3 ¶¶21. PA also discloses on its website that "[b]ookstores do
not automatically put a book on their shelves. All stores have full access to our books, but in order to actually stock them, they must believe that the book will sell. Author: there is work to be done." Ex. C (emphasis in original). With respect to its authors' obligations under the contract, PA indicates on its website that the author has one major responsibility: "to provide us with the completed final-version manuscript." Compl. ¶22. Nevertheless, PA admonishes authors that they should not "sit on [their] hands after signing the contract." Id. "We expect the author to actively promote the book whenever and wherever possible." Compl. ¶22. PA went into great detail on its website regarding the promotional activities authors should consider taking:
Now, a word of caution is in order. Bookstore availability is not necessarily the same as bookstore shelf display. For a book to be stocked by a bookstore, someone high in the hierarchy must decideto order it. . . .
This is why it is so important that authors turn themselves into the center of all local attention. Face it, you're no John Grisham or Nora Roberts, not yet. So you must not only beat the drum, but be the drum major as well. All successful marketing begins at home. Many authors are very creative at this. There are book signings with PublishAmerica authors in bookstores all over the fruited plain, every week. . . . Some authors become very accomplished public speakers about their book's topic, or about book writing in in general. Others carry flyers and business cards around that they hand out anywhere they go. And then there are some whose efforts get a big boost when they discovery that a movie star has agreed to a reading of their book as a potential movie script, or that their book has actually made it to the big screen.
Today's author must be active, and he must be innovative.
Ex. C (emphasis in original).
PA also makes it clear that its own promotional activity is completely optional:
Sales promotion, advertising and publicity of the work shall be at the Publisher's election and discretion as to the extent, scope and character thereof and in all matters pertaining thereto. . . . The Publisher may also distribute, at its discretion, for purposes of publicity and/or review, promotional information pertaining to said literary Work, to publications throughout the United States and/or Canada, or elsewhere. Compl., Exs. 1-3 ¶¶13 (giving PA discretion to create a website for advertising Plaintiff's book). True to its word, PA issues contracts that contain no author fees. See generally Compl., Exs. 1-3. Those contracts typically require authors to transfer the publishing rights to their literary works for 7 years. Compl. Ex. 1-3 ¶1 (setting contract term at 10 years for Ms. Yoos); id. ¶22 (setting forth conditions of reversion). After the contract is signed, the author is required to submit a final manuscript within 15 days. Id. ¶¶8 (Ms. Levine's contract allowed her 75 days to submit her manuscript). The parties agree that "[a]fter the author's submission of the Completed Manuscript, no changes and/or corrections shall be made except to correct Publisher errors". Id. The contract also requires PA to pay authors an advance of $1 and royalties on specified sales of its authors' books. Id. ¶¶3,8. Plaintiffs each entered into a contract with PA. Compl. Exs. 1-3. Although Plaintiffs were not required to purchase any services from PA, some of them voluntarily did so. Compl.¶¶77-111. They each now claim that PA should have provided them with more services because PA held itself out as a traditional publisher. E.g. Compl. ¶128.
II. LEGAL DISCUSSION
A. Legal Standards
"A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted is a challenge to the legal sufficiency of a complaint." Federal Trade Comm'n v.Innovative Marketing, Inc., 654 F. Supp. 2d 378, 384 (D. Md. 2009). To survive a 12(b)(6) motion, a Complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Proc. 8(a)(2). When reviewing challenges to the adequacy of a Complaint, "courts construe the pleading . . . liberally and accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences from those facts in the
plaintiff's favor." Innovative Marketing, Inc., 654 F. Supp. 2d at 384-85 (complaint should not be dismissed unless it "appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). In order to be well pled, a complaint must set forth sufficient facts to state a claim that is "plausible on its face"; detailed factual allegations are unnecessary but "formulaic recitation of the elements of a cause of action" are insufficient. Id. at 385. When determining whether an inference is reasonable, courts are not allowed to institute a "probability requirement"; neither should they accept farfetched "possibilities". Id. Rather courts must draw upon judicial experience and common sense when determining what inferences are reasonable based upon the context of the case. Id.
B. Plaintiffs Have Failed To Allege A Claim Under the Consumer Protection Act
The Court should dismiss Plaintiff's claim for damages under the Consumer Protection
Act ("CPA"). Compl., Count II. "[T]he Maryland General assembly enacted the CPA "to
provide protection against deceptive practices in consumer transactions." Citaramanis v. Hallowell, 328 Md. 142, 150, 613 A.2d 964, 968 (1992) (emphasis added). In addition to public enforcement through the Division of Consumer Protection of the Office of the Attorney General, "the Legislature has provided for a private action for damages by a consumer who has been
subjected to a practice prohibited by the CPA." Id., at 150-51, 613 A.2d at 968; see also Md. Ann. Code, Comm. Law § 13-408.
1. Plaintiffs' Cannot Bring a Claim Under the CPA Because They Are Not
Consumers Plaintiffs' claims are not within the scope of the CPA. "The Act prohibits certain unfair and deceptive trade practices 'in the sale . . .of any consumer goods or services. . . . '" Morris v. Osmose Wood Preserving, 340 Md. 519, 536, 667 A.2d 624, 633 (1995) (citing Md. Code Ann.,
Comm. Law § 13-303); Md. Code Ann., Comm. Law § 13-101(I). "Consumer goods [and
services] are defined by the Act as goods [and services] 'which are primarily for personal,household, family, or agricultural purposes." Md. Ann. Code, Comm. Law § 13-101(d). A sale is covered by the CPA only if the purchaser in that specific transaction intends to use the goods or services for personal or household reasons. Morris, 340 Md. at 539, 667 A.2d at 634 The only reasonable definition of consumer goods is goods sold or offered for sale to persons who [themselves] intend to use them primarily for personal, family, household, or agricultural purposes." A sale of consumer goods under the CPA is, therefor, a sale in which the buyer intends to use the goods primarily for thesepurposes. Consequently, the deceptive trade practice must occur in the sale or offer for sale to the consumer.
Id., at 540-41, 667 A.2d at 635 (emphasis added). In other words, it is insufficient that the goods or services are "eventually intended to be for personal, household or family purposes." If the buyer himself does not intend to use a good or service for personal or household uses, but only intends to resell it to a consumer (or incorporate the good into another product which will later be resold to consumers), the CPA is not implicated. The Court of Appeals' decision in Morris is instructive. There: the allegedly deceptive practices occurred entirely during the
marketing of the plywood to the builders. Essentially, the [plywood manufacturers] represented in advertising targeted to builders that their products were suitable for roofing, and [homeowners] claim this representation is untrue. There is no allegation that the manufacturers were in any way involved in selling . . . the townhouses that the plaintiffs bought. Nor is there any allegation that defendants attempted to influence the homeowners to purchase townhomes containing their brand of plywood. The only effect the alleged misrepresentation had on the sale of the townhouses was the creation of a possibly erroneous belief on the part of the builders which caused them to include allegedly inferior products in the townhouse. This remote effect on the sale of consumer realty is not sufficient for us to conclude that the deceptive trade practice actually occurred in that sale.
Id., at 541-42, 667 A.2d at 636.
Here, Plaintiffs cannot establish that they purchased consumer goods and services.
Rather, they entered into a complex commercial arrangement with PA. On the one hand they transferred an intangible property interest to PA; they authorized PA to manufacture and publish internationally the books that they authored. Compl., Ex. 1-3 ¶¶1. In exchange, PA agreed to share the proceeds that it earned from sales of Plaintiffs' books by paying royalties to Plaintiffs on specified sales. Id. ¶¶3. In fact, Plaintiffs admitted in their Complaint that they entered into their publishing contracts with PA for the purpose of earning income and promoting their works to the public at large and not for personal or household use. See Compl. ¶80 (Ms. Yoos
admitting that she entered into publishing contract to "compete with other books by first-time or little known authors"); id. ¶93 (Mr. McCall alleging that purpose of contract was to "promote his book" to the general public); id. ¶117 (Plaintiffs admitting that they primarily object to PA's efforts to market and promote their works to the public); id. ¶128 (plaintiffs complaining because PA's policies "make the books unmarketable to the general public"). Thus, they are not consumers within the scope of the CPA as a matter of law. This conclusion is not contradicted by the fact that PA produces a product that is ultimately purchased by consumers, i.e. books. Plaintiffs are not the buyers in the transactions where PA sells books to customers for household use. Rather, they are more akin to a materialman, who supplies PA with one of the components (book content) integrated into the inished product (along with paper, ink and adhesive) sold by PA. Nor are Plaintiffs complaining about deceptive practices directed at customers who purchase PA's books for the home. Rather, they complain about the commercial marketing activities that they expected PA to perform on their behalf, i.e. marketing their books to the public. See Compl. ¶13 (alleging that PA "convey[s] the false impression that [it] will engage in reasonable marketing efforts and will provide reasonable support to its authors in their efforts to promote their works"). In other words, Plaintiffs complain because they expected PA to do more work to make their books profitable. This is not a consumer expectation; it is a commercial one.
2. Plaintiffs Failed To Identify Any Deception
Plaintiffs have failed to identify any conduct that violates the CPA. A representation is deceptive under the CPA if it is false and has the capacity to mislead consumers. Md. Ann.
Code, Comm. Law § 13-301(1); see also id. §§ 13-301(2). A failure to disclose material facts is deceptive if the seller omitted or concealed the fact "with the intent that a consumer rely on the same in connection with the promotion or sale of any consumer goods." Id. § 13-301(9). A representation is material if it is "likely to affect [a consumer's] choice of a product". Luskins, Inc. v. Consumer Protection Division, 353 Md. 335, 726 A.2d 702 (1999).
A statement can only be deceptive if it is likely to mislead consumers acting reasonably under the circumstances. Luskins, Inc., 353 Md at 347, 354, 726 A.2d at 708, 711. Indefinite generalities, "puffing", and "sales talk" are not actionable under the CPA. McGraw v. Loyola
Ford, Inc., 124 Md. App. 560, 582, 723 A.2d 502, 512-13 (1999). "As we see it, this is the sort of speech that is 'offered and understood as an expression of the seller's opinion only, which is to be discounted as such by the buyer, and on which no reasonable person would rely." Id., 124 Md. App. at 582-84, 723 A.2d at 512-13 ("the use of the term 'perfectly safe' . . . was so extravagant . . . indefinite and elusive . . . that [it] would fall within the category of a puff").
"There can be no recovery for deceit, for example for a statement that the plaintiff is being offered an exceptionally good bargain, that he would be foolish not to take advantage of the offer." Id., at 582, 723 A.2d at 513. Furthermore, "a private party suing under the CPA must establish actual injury or loss." Lloyd v. GM Corp., 397 Md. 108, 142-43, 916 A.2d 257, 277 (2007); Citarmanis, 328 Md. at
151-52, 61 A.2d at 968. "The injury must be objectively identifiable. In other words, the consumer must have suffered an identifiable loss, measured by the amount the consumer spent or lost as a result of his or her reliance on the sellers' misrepresentation." Lloyd, 397 Md. at 143,
148, 916 A.2d at 277, 281. This limitation was put in place out of "fear" that "the powerful weapon given consumers in the form of the private remedy 'was capable of being used improperly for harassment and improper coercive tactics". Citarmanis, 328 Md. at 152, 61 A.2d at 968; Lloyd., 397 Md. at 143, 148, 916 A.2d at 277, 281. The "private remedy is purely compensatory; it contains no punitive component." Golt v. Phillips, 308 Md. 1, 12, 517 A.2d 328, 333 (1986).
a. Edwin McCall Has Failed To Allege That He Was Deceived
Mr. McCall has failed to state a claim for relief against PA under the CPA. Nowhere in the Complaint does he allege that he suffered any damages or injury. Compl. ¶¶87-95 (admitting that he paid no money to PA whatsoever). Since he is not entitled to any restitution, he has failed to plead a necessary element to his case. Lloyd v. GM Corp., 397 Md. 108, 142-43, 916 A.2d 257, 277 (2007). Nor can he correct that defect by asking for rescission, Compl. ¶95, or punitive damages, id., ad damnum clause, since those remedies are not available under the CPA.
Compare Md. Ann. Code, Comm. Law § 13-408; Golt, 308 Md. at 12, 517 A.2d at 333.
Even if rescission was available under the CPA, Mr. McCall is still not entitled to it because he has failed to allege that he reasonably relied upon any misrepresentations. Lloyd, 397 Md. at 143, 148, 916 A.2d at 277, 281. Although he complains about typographical errors in his book, Compl. ¶¶88-89, he does not allege that PA ever led him to believe that it would fix his mistakes before publication. This is not surprising since the parties agreed that PA had no obligation to edit Mr. McCall's book. According to the contract, the manuscript submitted by Mr. McCall was final–no changes would be made to it after it was submitted. Compl., Ex. 2 ¶8
("Author agrees to deliver to Publisher the final version of the manuscript . . . within 15 days of the Effective Date" and that upon his "submission of the Completed Manuscript, no changes and/or corrections shall be made except to correct Publisher errors"). Thus, Mr. McCall knew
Mr. McCall also claims that PA breached a promise to "provide him a "website type
page'" for the promotion of his book. Compl. ¶93. This expectation was also explicitly contradicted by the contract. Compl., Ex. 2 ¶13 (granting PA the option to "create . . . a separate domain on the Internet, exclusively dedicated to promoting the said literary Work" at "the
Publisher's sole expense and discretion").
when he submitted his manuscript that he (not PA) was obligated to ensure it was error free. See Call Carl, Inc. v. BP Oil Corp., 554 F.2d 623, 632 (4
th Cir. 1977) (rejecting plaintiff's fraud claim "in the face of plainly contradictory contractual language"); McGraw, 124 Md App. at 580, 723 A.2d at 511-12 (holding that plaintiff could not establish reliance on false statement that was inconsistent with subsequent documents containing accurate statements).
Mr. McCall also claims that PA breached its obligation to take "reasonable steps" to
promote his book. Compl. ¶41. According to him, he expected PA to take unspecified steps to promote his book because it called itself a"traditional publisher". Id. ¶¶41, 87, 92 (alleging his "underst[anding] that it was the publisher's job to present the book to the media"). Again, his expectations were directly contradicted by the contract. According to that contract, PA's obligation to promote Mr. McCall's book was nonmandatory: "Sales promotion, advertising and publicity of the Work shall be at the Publisher's election and discretion as to the extent, scope and character thereof and in all matters pertaining thereto." Compl., Ex. 2 thereto ¶13 (emphasis added). Thus, PA had wide latitude when deciding how, when or even if to market Mr. McCall's book 2. Mr. McCall's alleged expectations were also contradicted by PA's website. Nowhere on that site did PA promise to market his book other than to the "industry's wholesale and distribution channels for full availability through all bookstores". Compl. ¶21; see also Ex. C.
That is not to say that PA had absolute freedom to exercise its discretion under paragraph 13. Pursuant to the implied covenant of good faith and fair dealing, PA was precluded from
"acting in such a manner as to prevent [Mr. McCall] from performing his [own] obligations under the contract. Eastern Shore Markets, Inc. v. J.D. Assocs LP, 213 F.3d 175, 182-83, 184 (4th Cir. 2000) (noting that parties were precluded from "frustrating" other party's performance)).
For example, if PA decided to exercise its discretion and promote Mr. McCall's book, it could not spitefully disparage him with the intent to hurt sales. Id. at 183 (noting implied duty "to refrain from destructive competition"). However, nothing in the implied covenant of good faith or fair dealing obligated PA "to take affirmative actions that [it was] clearly not required to take under the contract." Id., at 182 (implied duty of good faith "is not understood to interpose new obligations about which the contract is silent"). Since Mr. McCall's contract does not specify any particular promotional services that PA is obligated to take, the implied covenant of good faith and fair dealing cannot be used to interpose any such obligations on PA.
In fact, Mr. McCall admits that his current expectations about promotion evolved after the contract was formed. According to him, he originally believed that it was his obligation to help PA promote his book. Compl. ¶90 (admitting that he promoted his own book because it
"fulfilled his end of the contract"). Indeed, PA encourages authors on its website to promote their own books. Compl. ¶21 ("We expect the author to actively promote the book whenever and wherever possible"); see also Ex. C. In furtherance of his understanding, Mr. McCall expended considerable efforts promoting his book, sending hundreds of e-mails to family and friends, as well as newspapers, magazines, radio and TV stations. Compl. ¶¶90, 92. Although he later questioned the value of his own marketing efforts, id. ("Mr. McCall found the process counterproductive"), these second thoughts are based upon his evaluation of PA's performance rather than his reliance on any representation made by PA before the contract was formed.
For the same reason, Mr. McCall's complaint, that PA "listed" his book in the wrong
category on its website, Compl. ¶90, and required him to pay a fee in order to terminate the contract, id. ¶95, also fail to support a CPA claim. These claims are not based upon Mr. McCall's reliance upon any misrepresentation made by PA. With respect to placing the Book in the wrong category, that is based upon his observations of PA's performance rather than reliance on any misrepresentation. As for termination, Mr. McCall had no right to demand termination. See generally Compl. Ex. 2. Accordingly, he should have expected that PA might require him to pay a fee in order to rescind the contract by mutual assent.
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Accordingly, they cannot support a CPA claim.
3 Lloyd., 397 Md. at 143, 148, 916 A.2d at 277,
281 (requiring CPA plaintiff to prove that he relied upon misrepresentation). By failing to identify any promotional services that PA was obligated to provide, Mr. McCall failed to meet his pleading requirements under the CPA. Fed. R. Civ. Proc. 9(b) (circumstances constituting fraud must be stated with particularity).
b. Darla Yoos Has Failed To Allege That She Was Deceived
Ms. Yoos has failed to establish that she is entitled to restitution of the promotional services that she allegedly purchased from PA. Compl. ¶77. According to her, PA led her to believe that it would not offer her promotional services for a fee because it represented that it was a traditional publisher. Based upon this interpretation of the term "traditional publisher", she claims that she was induced to enter into the publishing contract. As with Mr. McCall, the contract and the website dispel any reasonable implication that PA would provide any specific promotional services. See supra part II.B.2.a. Even if they did not dispel that implication as a matter of law, Ms. Yoos' conduct is fatally inconsistent with such a claim.. Assuming she truly believed at the time the contract was formed that PA was barred from offering her promotional services for a fee, she waived her objection by voluntarily purchasing 10 different marketing
services after the contract was formed. Compl. ¶77. To proceed with those purchases in the face of such knowledge amounts to a voluntary relinquishment of a known right and rebuts any For the same reason, she cannot recover the fee that she paid to terminate the contract. Compl. ¶85. By voluntarily paying that fee she waived any right to subsequently recover it.
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inference that she reasonably relied on her post hoc interpretation of the phrase "traditional publisher".
4 Progressive Casualty Ins. v. Ehrhardt, 69 Md. App. 431, 443, 518 A.2d 151, 157
(1985).
On the other hand, if she was not "aware" of PA's obligation to perform promotional
services for free at the time that she purchased them from PA, then she cannot establish a violation of the CPA. In order to state a claim under the CPA, she has to establish that PA led her to believe such services were included in the contract at the time the contract was formed. If she was not aware of PA's obligation to perform such services for free when she purchased those services (after the contract was formed), then she could not have relied upon such representations when entering into the contract. Lloyd., 397 Md. at 143, 148, 916 A.2d at 277, 281 (requiring CPA plaintiff to prove that he relied upon misrepresentation). In fact, what Ms. Yoos really seems upset about is not that PA asked her to pay for these services, but the quality of PA's performance. Compl. ¶79 (complaining that she was dissatisfied with the amount of work PA did for her payment–not that PA never should have offered her these services in the first place).
Ms. Yoos has also failed to allege that she was harmed by PA's offer to lower the price of her book. Compl. ¶80. Since she never paid PA to lower the price, she suffered no damage. Accordingly, she failed to allege a necessary element to her claim. Lloyd, 397 Md. at 142-43, 916 A.2d at 277.
c. Kerri Levine Has Failed To Allege That She Was Deceived
As with Ms. Yoos, Kerri Levine has also failed to establish that she is entitled to
Ann Crispin's complaints are contradicted by PA's contract. Compl. ¶24 (claiming PA's
reversion clause and advance are unreasonable) with Compl. Exs. 1-3 ¶¶8, 22 (fully disclosing amount of author's advance ($1) and right to reversion).
restitution for the services that she purchased. If she honestly believed that PA was prohibited from offering these services to her, then she waived any breach of contract claim by voluntarily purchasing them; on the other hand, if she did not believe that PA was prohibited from offering those services until some point after the contract was formed, then PA's use of the term "traditional" publisher did not deceive her into entering that contract as a matter of law.
d. Plaintiffs Cannot Save Their Claims By Smearing PA
Plaintiffs try to cure the defects in their claims by citing to disparaging statements about PA that were made by third parties. Compl. ¶¶23-35. These statements, however, are completely immaterial. Many were made well outside the time frame alleged in this Complaint.
Compare Compl. ¶¶23, 29, 30 (identifying derogatory newspaper articles from 2004 to 2006) with Compl. ¶104 (seeking restitution for all people who have "purchased [PA's] promotion[al] services within the last three years"). Some are directly contradicted by PA's website.
Compare Compl. ¶¶23, 26-27 (complaining that (a) PA does little copy editing; (b) does not make its books returnable; (c) uses print on demand technology; (d) has "relatively few of their 11,000 titles" stocked on "store shelves"; and (e) fails to distribute review copies) with Compl., Exs. 1-3 ¶¶8, 13 (making editing and distribution of review copies optional), Ex. A (disclosing its use of print-on-demand technology, Ex. C (warning authors that PA's books are not necessarily stocked on shelves), and Ex. D (noting that its books are "non-returnable"). Some have absolutely nothing to do with the objections raised by Plaintiffs. Compl. ¶30 (third parties accusing PA of selling books to which it has no rights). Other are just hopelessly confusing or hypothetical. Compl. ¶31 (quoting author as saying: "If they would just say, buy your books up front and pay X amount and we'll give you X, Y, and Z, then that would be one thing" . . . but they don't). These articles are simply incapable of supporting Plaintiffs' claims as a matter of law. In fact they are so scandalous that they should be stricken from the Complaint so as not to prejudice the fact finder and unnecessarily confuse the issues in the case. Fed. R. Civ. Proc.
12(f). Although motions to strike are "disfavored", the Courts are "granted considerable discretion . . . especially if the allegations in the complaint will cause prejudice at a later date in the litigation." Schultz v. Braga, 290 F. Supp. 2d 637, 654 (D. Md. 2003); Xerox Corp. v. Imatek, Inc., 220 F.R.D. 244 at * 245 (D. Md. 2004) (noting that allegations must be both immaterial and prejudicial). "Furthermore, the disfavored character of Rule 12(f) is relaxed in the context of scandalous allegations, i.e. those that improperly cast a derogatory light on some one." Mike's Train House, Inc. v. Broadway Limited Imports, LLC, 2011 WL 2415014 at * 2 (D. Md. 2011). Similarly, the Court should strike the promotional offers criticized by Plaintiffs in the Complaint but which they did not purchase. Compl. ¶¶40-41, 47-53, 56-71. They add nothing to Plaintiffs' claims.
C. The Court Should Dismiss Plaintiffs' Declaratory Judgment Action (Count I)
The Court should dismiss Plaintiffs' declaratory judgment claim (Count I) for the same reasons that the CPA claim is defective. "The Declaratory Judgment Act [("DJA")] is designed to afford parties, threatened with liability, but otherwise without a satisfactory remedy, an early adjudication of an actual controversy." Collin County, Tx. v. Homeowners Association for Values Essential to Neigborhoods, 915 F.2d 167, 170, 172 (5
th Cir. 1990); Stamicarbon, N.V. v. Chemical Constr. Corp., 355 F. Supp. 228, 232-33 (D. Del. 1973) ("a declaratory judgment action . . . permits a party to determine his rights immediately instead of waiting to be sued").
"What is litigated in such a situation is 'the precise issue which could have been litigated in federal court" had the declaratory defendant filed a coercive action rather than just threaten one.
Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1179, 1180 (5
th Cir. 1173). "In other words, the declaratory judgment procedure is an alterative to pursuit of . . . arguably illegal activity." Hipage Co. v. Access2Go, Inc. 589 F. Supp. 2d 602, 614, 615 (E.D. Va. 2008); see also Benitec Australia, LTD v. Nucleonics, Inc., 495 F.3d 1340, 1344 (Fed. Cir. 2007).
Since declaratory relief is "designed to declare rights so that parties can conform their conduct to avoid future litigation", it "is unavailable in situations where claims and rights asserted have fully matured, and the alleged wrongs have already been suffered." Gallant v. Deutsche Bank Nat'l Trust, 766 F. Supp. 2d 714, 719 (W.D. Va. 2011); Tapia v. U.S. Bank, N.A., 718 F. Supp. 2d 689, 695 (E.D. Va. 2010); Hipage Co., 589 F. Supp. 2d at 615. When a claim has already accrued, the injured party should seek traditional forms of relief as an alternative to a declaratory judgment. Johnson v. D&D Home Loans Corp, 2007 WL 4355278 at *4 (E.D. Va. 2007) ("the remedy ought to be refused if another remedy would be more appropriate or effective").
When it comes to declaratory relief, it is important to emphasize that it is only
procedural. "Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction." Lowe, 723 F.2d at 1179; see also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950); Plimpton v. Cooper, 141 F. Supp. 2d 573, 576 (W.D.N.C. 2001). Thus, the Declaratory Judgment Act "does not create an independent cause of action, it only provides a form of relief previously unavailable." E.g., Alvidrez v. Ridge, 311 F. Supp. 2d 1163, 1165 (D. Kan. 2004); see also Davis v. United States, 499 F.3d 590, 594 (6 th Cir. 2007);
Mead Corporation v. United States, 490 F. Supp. 405, 407 (D.D.C. 1980); Laws v. Priority Trustee Services of N.C., LLC, 610 F. Supp. 2d 528, 532 (W.D.N.C. 2010). In order to acquire jurisdiction under the declaratory judgment act, then, there must be "an underlying legal cause of action that the declaratory defendant could have brought or threatened to bring, if not for the fact that the declaratory plaintiff has preempted it" by bringing his own action. E.g. Benitec Australia, LTD, 495 F.3d at 1344; Chevron Corp. v. Naranjo, 667 F.3d 232, 244 (2d Cir. 2012).
Thus, a declaratory judgment action is "barred to the same extent that the claim for substantive relief on which it is based would be barred." International Ass'n of Machinists & Aerospace Workers v. Tennessee Valley Auth., 108 F. 3d 658, 667-68 (6
th Cir. 1997).
1. Plaintiffs Cannot Save their Defective Consumer Protect Act Claim by
Bootstrapping It To A Claim for Declaratory Judgment
The Court should dismiss Plaintiffs' request for declaratory relief because their
underlying substantive claim is fatally defective. Plaintiffs' declaratory judgment action is based
exclusively on alleged violations of the Consumer Protection Act. Specifically, Plaintiffs seek
"a declaratory judgment that defendant's publishing contracts violate the Maryland Consumer
Protection Act". Compl. ¶113. Since Plaintiffs cannot, as a matter of law, prosecute a coercive
claim for relief under the CPA, see supra Part II.B, neither can they seek declaratory relief under
that statute. Chevron Corp., 667 F.3d at, 244; International Ass'n of Machinists & Aerospace
Workers, 108 F. 3d at 667-68. The Declaratory Judgment Act simply does not provide them
with an independent cause of action. Davis, 499 F.3d at 594.
2. It Would Be Inappropriate for the Court to Declare Rights That Are Fully
Matured When Alternative Remedies Are Available
Even if there were an independent basis to exercise jurisdiction over Plaintiffs'
declaratory judgment action, the claim would still be defective because the underlying purpose of the DJA is not served. Plaintiffs are not seeking to test claims threatened by PA. Lowe, 723 F.2d at 1179, 1180. Nor are they seeking to clarify whether their own conduct is legal. Hipage Co., 589 F. Supp. 2d at 614, 615. Instead, they have articulated claims for damages against PA and asked for rescission of their contracts. In other words, they are simply prosecuting their own coercive, fully matured claims for deception under the CPA. This is an inappropriate ground for declaratory relief. Tapia, 718 F. Supp. 2d at 695. In fact, declaratory relief is completely unnecessary. Plaintiffs could "more effective[ly] resolve all of the issues identified in their declaratory judgment count using traditional remedies like a damage action. Eaton Vance Mgt. v. Forstmannleff Assocs, LLC, 2006 WL 2331009 2331009 at *3 (S.D.N.Y. 2006); see also Johnson, 2007 WL 4355278 at *4.
3. Plaintiffs Should Not Be Permitted to Use the Declaratory Judgment Act as a
Device To Avoid Analysis Under The Class Action Predominance Test
Plaintiffs have certainly manufactured a declaratory judgment claim in order to obtain a
procedural advantage when they seek class certification. According to class action Rule 23(b),
Plaintiffs must show that issues common to the class predominate over individual issues when
money damages is the primary relief requested; that requirement is relaxed where the relief
sought is predominately declaratory. Compare Fed. R. Civ. Proc. 23(b)(2) with id. 23(b)(3);
Thorn v. Jefferson-Pilot Life Ins., 445 F.3d 311, 329-30 (4
th Cir. 2006).
Here, Plaintiffs cannot establish that issues common to the class predominate over
individual issues. On the one hand, there are some similarities between Plaintiffs' claims.
Generally speaking, Plaintiffs allege that PA was precluded from charging certain fees to them
because PA held itself out as a "traditional publisher". Compare Compl. ¶16 (alleging that
traditional publishers do not "take money from the author"). However, any similarities between these claims are far outweighed by the differences.
For example, Both Ms. Yoos and Ms. Levine complain about PA's offer to reduce the
price of their respective books for a fee but Mr. McCall does not. Compare Compl. ¶80with Compl. ¶¶87-95, and Compl. ¶98. Furthermore, Ms. Levine and Ms. Yoos relied on PA's offer to reduce the prices of their respective books differently. Ms. Yoos objected to paying any fee and Ms. Levine voluntarily paid it. See supra Parts II.B.2.b & II.B.2.c. The factual differences between these two claims is further evidenced by the communication history between PA and these two authors, which are significantly different. Compare Compl. ¶¶80-84 with id. ¶¶98, 99-101. Other aspects of their claims are also factually and legally distinguishable. Compare.
Compl.¶¶ (Ms. Yoos complaining about promotional packages that she purchased but not
editing), and id. ¶¶87-94 (Mr. McCall complaining that PA did not sufficiently edit or promote his book but admitting that he purchased no promotional or editing packages from PA), with id.
¶¶ (Ms. Levine complaining about editing and promotional packages that she purchased).
Since questions of law or fact common to the class do not predominate over Plaintiffs'
individualized claims, they have a strong motive to manufacture a declaratory judgment claim.
That way, they can preserve jurisdiction over this case under the less demanding rules set forth
in Rule 23(b)(2). However, this type of procedural fencing is not acceptable. Eaton Vance Mgt.,
2006 WL 2331009 at *3. This conclusion is bolstered by the fact that Plaintiffs would not bother
In any event, class certification is an exercise in futility because reliance is an issue raised by Plaintiffs' CPA claim. E.g. Broussard, 155 F.3d at 342.21
to bring their claims "even in the absence of a possible monetary recovery". Edwards v. Publishers Circulation Fulfillment, 268 F.R.D. 181, 189 (S.D.N.Y. 2010). If the purpose of a suit is to recover money rather than change conduct, then the existence of declaratory relief in the complaint is not sufficient to support class certification. Edwards, 268 F.R.D. at 189. Here, declaratory relief by itself would provide Plaintiffs no incentive to prosecute their claims. The conduct to which they object, i.e. PA's representation that it was a traditional publisher, has already caused them all of the harm that they could conceivably incur. Thus, if the Court ordered PA to stop using the phrase "traditional publisher", Plaintiffs would not benefit at all unless it was coupled with another form of relief, e.g. restitution or rescission. The only people who could conceivably benefit from that relief would be authors who are currently looking for a new publisher. Since that class is not before the Court, any declaratory judgment regarding PA's use of the phrase traditional publisher would be in the nature of an inappropriate advisory opinion.
D. Plaintiffs' Claim for Unjust Enrichment Is Defective
Plaintiffs have failed to state a claim for unjust enrichment. Compl., Count III. Unjust enrichment and quantum meruit, both 'quasi-contract' causes of action, are remedies to provide relief for a plaintiff when an enforceable contract does not exist but fairness dictates that the plaintiff receive compensation for services provided." Dunnaville v. McCormick & Co., , 21 F. Supp. 2d 527, 535 (D. Md. 1998)) (noting that quasi-contract claims include "quantum meruit and unjust enrichment"). In order to establish the right to recovery for unjust enrichment, Plaintiffs must show that they (i) conferred a benefit upon the defendant; (ii) the defendant was aware of or appreciated the benefit; and (iii) the acceptance or retention by the defendant of the benefit under the circumstances makes it inequitable for the defendant to retain the benefit without payment for its value." Dunnaville, 21 F. Supp. 2d at 535. A "claim for unjust enrichment may not be brought where the subject matter of the claim is covered by an express contract between the parties." FLF, Inc. v. World Publications, Inc., 999 F. Supp. 640, 642 (D. Md. 1998).
Here, Plaintiffs' unjust enrichment claims are defective because the subject matter is covered by the publishing contracts between the parties. For example, the benefits that Plaintiffs want returned include the literary rights that were explicitly transferred to PA in the contract. Compare Compl. ¶129 with Compl., Exs. 1, 2, 3 (Darla Yoos, Edwin McCall and Kerri Levine granting PA the rights respectively to Diary of a Demonologist, Dirty Potaotes and From Catholic to Atheist by contract). In other words, Plaintiffs are essentially asking the Court to rescind the contracts and return the parties to the position they were in prior to the formation of their respective contracts. Ellerin v. Fairfax Savings Ass'n, 78 Md. App. 92, 109, 552 A.2d 918, 926 (1989) (rescission "is an equitable remedy designed to afford relief from contracts entered into through mistake, fraud or duress") (emphasis added). Plaintiffs cannot obtain relief from their contracts using a quasi-contract cause of action. FLF, Inc., 999 F. Supp. at 642.Furthermore, the inequitable conduct identified by Plaintiffs is also covered by the subject matter of the contracts. According to Plaintiffs, PA "created expectations" that it would provide a certain level of service when it held itself out as a "traditional publisher" but "then failed to provide" those services. Compl. ¶¶128-29 ("PA failed to provide the minimal services that a traditional publisher would provide"). The resolution of this issue is, of course, controlled by the parties' contracts because that document best defines the parties' expectations. Compl.,
Exs. 1-3 (describing conditions upon which Plaintiffs would transfer publishing rights and PA would publish work). Since the Court cannot resolve Plaintiffs' claims without fully immersing itself in an interpretation of the parties' contracts, it would be inappropriate to proceed under a quasi-contract action.
III. CONCLUSION
For the foregoing reasons, Plaintiffs' claims should be dismissed with prejudice and the
allegations in paragraphs 23-35, 40-41, 47-53, and 56-71 should be stricken.
Respectfully Submitted,
________/s/_____________
Victor E. Cretella III
PubliSHAMErica- SHAME is our middle name!
Showing posts with label Publish America class action lawsuit. Show all posts
Showing posts with label Publish America class action lawsuit. Show all posts
Wednesday, July 18, 2012
Sunday, July 8, 2012
Man with known terrorist ties threatens PublishAmerica detractor in the name of PA
There are several reports on the internet of PublishAmerica authors claiming to be harassed after complaining to the company. Author's claim that PublishAmerica sent the police to their homes and that someone from the company sent these authors very nasty, threatening and certainly unprofessional emails in response to these complaints. As most of us who follow the drama involving this publisher know, a class action lawsuit was filed against them last month and so we hear that the list of plaintiffs has been growing. PublishAmerica will have its day in court to formally answer to these allegations.
These example shows you how serious the harassment against the detractors can get. It wasn't enough that the CEO Willem Meiners filed a frivolous lawsuit against Phil Dolan, Rev. Sinthyia and Tomas Meyer. It wasn't enough that their names were inexplicably mentioned and heard around the world in a very bitter and very public response to J.K Rowling and her staff after the publisher was caught making false claims that for $49.00 they would show the world famous author these vanity books and that she would offer some sort of critique. It wasn't enough that PublishAmerica's attorney in said response called Dolan and Darkness the derrogatory name "muckrakers" along with the defamatory statement "...No reasonable person would ever rely upon anything they said. By doing so, your client { JK Rowling} and her representatives have subjected themselves to a defamation suit."
My favorite quote from this response is this. " The simple fact is that your client’s Edinburgh residence is public knowledge; she even publicizes this fact on her own website!!! " Gotta love an attorney that responds to a legal notice with 3 exclaimation points but I digress.
Neither Mr. Dolan nor the reverend Darkness had anything at all to do with the trouble with JK Rowling that PA bought upon itself with this promotion. But yet, their names were shouted across the world along with the name of David Kuzminski who had nothing to do with it either. In fact, all three individuals named in this response never were involved in litigation with PublishAmerica. David Kuzminski was sued in a private lawsuit against Mr. Cretella (see his siggy at the bottom of that response?)
It seems that PA and its employees can't separate themselves from the corporate entity and that there really does not appear to be any clear division.
Take this for example. This was filed in Case No. 1:11-CV-01999, WILHELMUS JOHANNES FRANS )
MEINERS and ALICE RUSH MEINERS plaintiffs " According to PA’s
first process server, a person by the name of Joselina Vargas currently resides at the North Miami Beach address." "Nobody has answered the door for PA’s second process server..." "Exs. 5 & 6. PA’s first process server also ran a skip trace on Sinthyia" "At the end of October, PA hired a private investigator to locate Darkness and Meyers" "The investigator surveilled a second address.." so you see what we're getting at here folks. Documents filed under penalty of perjury show that the funds for this private lawsuit involving the CEO of PublishAmerica and his wife, came directly from the corporation. Funds were taken from PublishAmerica and used to pay somebody to put the home of an innocent man under video surveillance. "He {the private investigator hired by PUBLISHAMERICA} ran a tag of a vehicle located on the property but it was not associated with either of the Defendants’ names."
Did they really think they were going to find a person named Sinthyia Darkness?
"The investigator has also identified several “[o]ther addresses of interest”. Ex. 11. These appear to belong to Meyers’ son, Thomas Meyers, Jr. Further investigation is necessary to determine whether Defendants can be linked to any of these properties. So far Plaintiffs have spent $750 to effectuate service on these two Defendants: (1) $200 for the first process sever; (2) $350 for the second process server; and (3) $200 for the private investigator. Additional attempts to serve Defendants will cost approximately $50 per Defendant per address. The private investigator charges $85 per hour with a minimum of four hours per day for field work."
Ah, but wait.. according to these documents, the "plantiffs" didn't spend anything unless they are asserting that PA's funds are their personal funds. Hmmmm.
Accordingly, Plaintiffs have to take very expensive measures to
follow up on these leads, including surveillance. If Plaintiffs were required to rush this investigation and follow up on multiple leads simultaneously, it could cost thousands if not tens of thousands of dollars; that would not be fair to Plaintiffs..." Yep. sure sounds like there are some questionable fund conversion issues here.
Finally, look at this:
Respectfully Submitted
_______/s/_______________________
Victor E. Cretella III
230 E. Patrick Street
Frederick, MD 21701
301-228-2705
vec@publishamerica.com
Bar No. 13459
Counsel for Willem and Alice Meiners
DECLARATION
I declare under penalty of perjury that the facts identified in this motion are true and correct.
Yeah. That's PublishAmerica's address, phone number and email account.
As if this wasn't sloppy enough, we have something else to show you! This document is the Declaration from the Private Investigator, Bernardo Yepes hired by PublishAmerica in this lawsuit that has been dismissed by federal judge Quarrles. The lawsuit takes a very bizarre twist here. We discovered this document filed in case number L-09-2387 This is a document involving the lawsuit that Dolores Dawes Llyod filed against PublishAmerica LLLP. The personal information contained within this document does not involve anyone by the name of "Thomas Meyer." but instead of another man, with a similar sounding surname but different spelling.
The next segment of this story, is a post made on the Bogus Barrister blog. You may start reading this and think to yourself, 'okay, but just what the hell does this have to do with PublishAmerica?' This involves a man who is being indicted for embezzling funds from a church that were set up as a legal fund for Rifqa Bary. Brian Smith has aided a known terrorist organization. By this man's own admission, he was gathering information on, harassing and has some sort of arrangment to provide PA with information about Reverend Synthia Darknes. Nobody seems to know exactly what happend to Brian Smith. Shortly after he was reported to the FBI for this activity, he disappeared from the Internet. We are not saying that this guy had some sort of conspiracy going on with PA. That's what this Brian Smith guy was claiming. In any case, he incriminated himself and Publishamerica.
This is what the Bogus Barrister blog reported on this. Reprinted here with permission.
The Bogus Barrister is always happy when we get our chance to help law enforcement. We are proud that we have been in contact with officers across the country and that our tips have lead to arrests. I wanted to take this moment to thank men and women who join law enforcement and who put their lives on the line to keep our citizens safe. We have been busy at the Barrister today working behind the scenes in one of the strangest incidents we have encountered in a long while. We hope that anyone with information about this perpetrator will get in touch with us and the Orlando Florida police department.
Brian Smith is forty years old and is thought to live in Orlando. The victim in tis case is the writer known publicly as Sinthyia Darkness. Although there are but a couple of references to Thomas Meyer, and a male internet user who uses the handle "Ironball" Smith's real target here is Sinthyia. There has been some discussion recently about who Sinthyia Darkness really is. Because of our involvement as a result of an anonymous crime tip to the Bogus Barrister, I believe that the question as to the identity of this person is solved and although the name Sinthyia Darkness does appear on the court docket filed by Vic Cretella on behalf of his clients Mr and Mrs Meiners there should only be the names of Mr. Dolan and Mr. Meyer on it. This is an important point because the man Mr. Smith although motivated by revenge, intimates that he has formed an alliance with PublishAmerica. PublishAmerica may say differently but we are only going by the statements published on the Internet by Mr. Smith. He has many such statments more than once.
Mr. Dolan, Meyer or Darkness have never met Smith in person. Smith joined an Internet news group powered by Yahoo in 2008. The group is run by Rev. Meyer's ministry. Let me point out that this is not Brian Smith's first attempt to scam a church or religious organization. He was appointed an officer of the Global Revolution Church in Orlando. He and two other men embezzled and/or misappropriated funds sent to the church from all over the country by Rifqa Bary's supporters intended for Rifqa’s legal defense fund. Bary was fleeing CAIR a Muslim organization that has known terrorist ties. Bary was found guilty under sharia law and thus the need for the legal defense fund. Smith and two accomplices are accused of embezzlement, mail tampering and wire tapping. So even before we get to what he is doing to these people, the guy has a pattern of criminal activity.
Mr. Brian Smith began sending Sinthyia personal emails that suggest he wanted a personal relationship with this person. It is very awkward for me to write this with what I know based upon what I have learned today but for the sake of argument when I mention Sinthyia I will simply refer to this writer as female.
Smith is or was married but claimed that he and his wife were swingers. In act he still has personals ads on the Internet seeking women or a couple. To each his own I guess.
Here is one of the threatening comments Smith wrote as Synthyia Darkness
Synthyia Alice Dark Sinthyia Darkness
see a fictious person is someone a author writes about....put a person who takes on a ficious name is still responsible for their actions, they are still the person but with a ficticious name..i have emails from long ago sin and thomas and old ironball talking about sin and i have a picture of sin in a srticle running for mayor..i am the ghost from the past..i work for no publishing company, but will gladly give them the proof they want..i can prove who sinthyia darkness is..i can prove what fake websites she has run over the years..Ive been waiting for years to make things even...I know she fakes her own death on the news site she was running, i also know she posted her own death on "find agave" ...I never disappeared I just sat back and built my bag of evidence..i'm just telling you that i kniw what you did and I'm gonna help prove it because of what you did to me."
He has also been sending creepy unsolicited messages to those who subscribe to the Sinthyia Darkness page.
He has been writing accusing Sinthyia of various criminal activity. Anybody who knows about Sinthyia Darkness' former blog knows that this person helped clean up the Internet by exposing criminals. Smith goes back and forth about his Yahoo accounts being closed. In one email he admits that he knows he was reported to Yahoo and that it was Yahoo that shut him down and in the next contact he accuses Sinthyia of "hacking" him. Not only has Smith created these Facebook profiles but he has also opened up an email account to impersonate Sinthyia on the Internet. He opened the account synthyia_darkness@yahoo.com and began sending threatening messages to an email address owned by a horror fiction book club. The name on the outgoing emails is "sinthyia Darkness." Last week he sent this creepy message.
from> Sinthyia Darkness< synthyia_darkness@yahoo.com "4 years ago you and Thomas wrongly destroyed everything I built... You could of fixed it and apologized but you didn't. I've spend 4 years waiting and watching you build fake site and build yourself as sinthyia darkness, I have all the archives of this and ip addresses of it all and pictures of you that you labeled as sinthyia darkness.. You over the years have proven you are real but have a ficticious name, sinthyia isn't a fictitious person but your alias and I have the legal proof of that... I have every reason in the world to turn this over to PA and I will.. Fair is fair, you destroy what I built and I return the favor >> >>Sent from my Super secret spy I-phone communicator device.."
His Super Secret spy device is a cell phone with Internet service provided by t-moble. I have a copy with full headers. If his internet access is through this phone then you can bet he verified this email address and Facebook accounts with his phone number.
Last night, Smith sent another threatening email message aimed at Rev. Sinthyia from his email account he created in her name. I think it is very important to point out that this email was sent to an email account that he thinks belongs to "Sinthyia Darkness" but it does not. He has been sending them to an email address owned by a fictition horror book club. The book club actually Googled the name Synthia_Darkness and thought at first this crazy email was sent from Sinthyia to them. Later emails have proven that they were aimed at her by some warped person (Smith).
From Synthyia Thu Mar 1 17:35:48 2012
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Subject: Busted
From: Synthyia
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Date: Thu, 1 Mar 2012 20:35:48 -0500
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I can tell you this now... I report you to craigslist and yahoo and facebook, I stated I would press charge for Internet crimes and harassment along with libel... Your ip address is being forwarded to the Internet crimes unit of the FBI .. You hand to use a email to post the craigslist ad and confirm an account using a cell number I'm also pushing for identity theft... One of these will give me your true names on a legal document and your ip address that's all I need... As soon as I get it it's going to publish America ... And I am pressing charges... Lol you still think your untouchable... Yahoo and facebook have been monitoring my account for a week now because I knew you would attempt to hack them... So predictable... Thanks again Sent from my Super secret spy I-phone communicator device....
His message is for the most part incoherant. But he seems to be accusing her of the very things that he is doing to her and has been doing to the Meyer family over the past four years. Sinthyia has not posted any ads on Craiglist. He does not have anything to report this person for. He is the one sending out these emails and he is the one who created these accounts pretending to be her.
As some of you who are readers of this blog already know, Sinthyia Darkness does have a legal dispute but it's connection to Publish America LLLP is that it involves the CEO of the company. It is a personal issue and in no way involves Brian Smith. As you see, Smith is attempting blackmail by saying he is going to give them information about who he thinks she really is. This is blackmail plain and simple regardless of what Smith might think it is. From these letters is is clear that all that has bee done is defend against his harassment and threats.
Smith seems to be under the impression that the litigants do not know the "true names" of Sinthyia Darkness but in fact there is no mystery. I took the time today to go over the court case and as far as the litigants are concerned, all parties have been notified. Smith appears to be using this an excuse to stalk. This Brian Smith character is a real peach.
He has in fact made death threats and those are published in one of the most recent comments on the Miami New Times article.
Cflparanormal 4 days ago in reply to Have Some Respect
the girl aint dead... she faked her death to try to escape all her negativity and law suits.. shes a scammer.. try to read the article again.. it puts you on a dead link to a fake newspaper.. the go to her group "miami paranormal investigation society" and try to read the investigations... it takes you to the same fake newspaper.. she created it to make her self look famous and then to fake her death
Cyberbouncer 4 days ago
see that girl ain't dead ...but she will be soon... see i will get even for what she did to me... yes sin its me Brian Smith ill be seeing you soon sin
Now going back to what I was saying about who Sinthyia Darkness really is. I doubt it would come as any surprise and it has even been hinted at in what Vic Cretella wrote in a few of his documents. Anybody who has ever read anything written by Phillip Dolan knows that he is a brilliant writer. His research is top notch Mr. Dolan is an expert about PA. Dolan is an expert in being able to disgusing his "voice" in what he writes to be able to give his writing a feminine flair. Go read something he has written and the truth will smack you in the face. Vic Cretella has taken notice and points to the parallels in these writing styles. In the Meiners' lawsuit he compares posts written on The Guild which are known to be unquestionably written by Dolan in 2008 to the articles published in 2010. When we decided to check into this several sources have notified Bogus Barrister that Sinthyia Darkness' real name is Phillip Dolan. There is no mystery here. Everything I have seen leads me to believe this is true.
It's ironic that although Smith mentions his animosity toward Ironball and Meyers neither men have gotten any recent emails from him. Why? It looks like his targets are women. Smith is convinced that the writer known as Sinthyia Darkness is a woman. So if you're a woman on the internet, please be careful and be aware that the world is full of Brian Smiths.
on March 1st, Smith posted this message on the Fake Facebook page he created in his attempt to pretend to be Sinthyia Darkness
Synthyia Alice Dark
I started this page as a classifier to the person "sinthyia darkness". The person sinthyia darkness is a fictitious person, and all her legacy and accomplishments and websites are that also, FAKE. do your reasearch, even the creator has tried to establish this by make a page on facebook stating so. So all the websites ...such as "Miami Paranormal Investigation Society" and 'Reverend Sinthyia" are all fake. She was never a real paranormal investigator, never a fashion designer, never a reverend, and never a internationally known author... She is fictitious.. so all those people following her and believing her are following a fairy tail.. do the research and figure it out for yourself, her creator stated so and even went as far as to try to stage a death to get people to stop following her like a real person. you would be better off following reverend santa claus the paranormal investigator and fashion designer... come on people get a life.. shes not real, shes not a designer or a investigator, and her paranormal investigation society never existed.. do a google search and see if you can find a physical address..it doesnt exist.. if you do a search of the paranormal society and look at the investigations it will send you to a fake news site and the writer is... yep you guessed it "sinthyia darkness... now i will warn you a lot of people are trying to be her and before long they will try to take the fake identity and eventually take and change the phony sites but just remember no matter what she does not and has never really existed... she started as a joke and then built into a character on the net... some crazy person actually wrote a poem and paranormal book and assumed the name even, but if you read the book you will see it was horrible because it was quickly thrown together as a joke.. so get over it people
We have just discovered a forum called "Ghost Lab" on which someone using the handle cflparanormal has been engaging in discussion since 2009. This should show you how sick and demented Mr. Smith really is. Allow us to restate that the Bogus Barrister has contacted the Central Florida Paranormal organization and verified that they do not have anybody named Brian Smith associated with them. The real owner of CFLPARANORMAL is a man named Tim Fitzgerald. CFLPAPRANORMAL has it's own internet radio show. and it's own Facebook account.
Be that as it may, Mr. Smith shows the world his paranoia when he starts an unprovoked attack on "Sinthyia Darkness" on this message board over another user there calling themselves, DarkAngel251978. He is using any sort of excuse like this to follow people who he has any suspicion of being Sinthyia. For the record, the real Sinthyia Darkness has never been a member of the Ghost Lab forum. This writer has never used the handle darkangel251978, syn. Another quick searchreveals that darkangel is a woman named Sandra Morely. If you know her let her know that she could be in danger. We are trying to contact her.
You know what I find really concerning about that forum? Look at the writing styles. I have looked over 280 + emails involving this Smith to write this post. He has a very distinctive writing style. All but maybe one of those users of that forum have that same writing style.
"
Posted 02-03-10 08:15 PM
I would like to clear up a little slander scam that is going on with this board and across the Internet. Let me introduce myself I am Brian Smith founder and owner of cflparanormal out of Orlando Florida, I can be contacted via email at cflparanormal@yahoo.com or via my myspace page with over 500 members. The person posting on this board is not me nor affiliated with cflparanormal in any way. There is a slander scam on the Internet aimed at me via a bipolarfemale and her boyfriend and they go by many aliases,some of which are dark angel, syn, sinthia darkness, and many others. She has because upset with me because I exposed the fact the the fictious "Miami center for paranormal research" never existed, her and her purple magic lasso never did any true investigations, and that her supposabe campaign for the mayor of Miami was just to gain attention. She claim to be a world known author (publish a book of poetry thru publish America lol) but she is really just a trouble maker in the paranormal community. She has mental issue to the point of losing custody of her son due to the imbalance. Any posting with cflparanormal on the Internet about cflparanormal should be taken with a grain of salt and please feel free to contact me directly about and question of authenticity of any statements supposably made by me.... The is a Internet talk show host named lord Rick who has dedicated much of his time to exposing her and her other identities feel free to Internet search him or google sinthia darkness and you will soon realize all the people endorsing her are the same people which are evidently her other personalities... Thank you Brian Smith the real cflparanormal "
We need that person who came here to enlighten us about narcisizm to tell us what is the name for the mental state when somebody goes around victimizing people and then accusing the victim of doing the very things they are doing to the victims.
This just goes to show you what a dangerous place the internet is. That's why I don't let my kids join any chat rooms or post to any message boards. Oh and just in the event they ever do meet up with a creep like this, daddy carries guns.
These example shows you how serious the harassment against the detractors can get. It wasn't enough that the CEO Willem Meiners filed a frivolous lawsuit against Phil Dolan, Rev. Sinthyia and Tomas Meyer. It wasn't enough that their names were inexplicably mentioned and heard around the world in a very bitter and very public response to J.K Rowling and her staff after the publisher was caught making false claims that for $49.00 they would show the world famous author these vanity books and that she would offer some sort of critique. It wasn't enough that PublishAmerica's attorney in said response called Dolan and Darkness the derrogatory name "muckrakers" along with the defamatory statement "...No reasonable person would ever rely upon anything they said. By doing so, your client { JK Rowling} and her representatives have subjected themselves to a defamation suit."
My favorite quote from this response is this. " The simple fact is that your client’s Edinburgh residence is public knowledge; she even publicizes this fact on her own website!!! " Gotta love an attorney that responds to a legal notice with 3 exclaimation points but I digress.
Neither Mr. Dolan nor the reverend Darkness had anything at all to do with the trouble with JK Rowling that PA bought upon itself with this promotion. But yet, their names were shouted across the world along with the name of David Kuzminski who had nothing to do with it either. In fact, all three individuals named in this response never were involved in litigation with PublishAmerica. David Kuzminski was sued in a private lawsuit against Mr. Cretella (see his siggy at the bottom of that response?)
It seems that PA and its employees can't separate themselves from the corporate entity and that there really does not appear to be any clear division.
Take this for example. This was filed in Case No. 1:11-CV-01999, WILHELMUS JOHANNES FRANS )
MEINERS and ALICE RUSH MEINERS plaintiffs " According to PA’s
first process server, a person by the name of Joselina Vargas currently resides at the North Miami Beach address." "Nobody has answered the door for PA’s second process server..." "Exs. 5 & 6. PA’s first process server also ran a skip trace on Sinthyia" "At the end of October, PA hired a private investigator to locate Darkness and Meyers" "The investigator surveilled a second address.." so you see what we're getting at here folks. Documents filed under penalty of perjury show that the funds for this private lawsuit involving the CEO of PublishAmerica and his wife, came directly from the corporation. Funds were taken from PublishAmerica and used to pay somebody to put the home of an innocent man under video surveillance. "He {the private investigator hired by PUBLISHAMERICA} ran a tag of a vehicle located on the property but it was not associated with either of the Defendants’ names."
Did they really think they were going to find a person named Sinthyia Darkness?
"The investigator has also identified several “[o]ther addresses of interest”. Ex. 11. These appear to belong to Meyers’ son, Thomas Meyers, Jr. Further investigation is necessary to determine whether Defendants can be linked to any of these properties. So far Plaintiffs have spent $750 to effectuate service on these two Defendants: (1) $200 for the first process sever; (2) $350 for the second process server; and (3) $200 for the private investigator. Additional attempts to serve Defendants will cost approximately $50 per Defendant per address. The private investigator charges $85 per hour with a minimum of four hours per day for field work."
Ah, but wait.. according to these documents, the "plantiffs" didn't spend anything unless they are asserting that PA's funds are their personal funds. Hmmmm.
Accordingly, Plaintiffs have to take very expensive measures to
follow up on these leads, including surveillance. If Plaintiffs were required to rush this investigation and follow up on multiple leads simultaneously, it could cost thousands if not tens of thousands of dollars; that would not be fair to Plaintiffs..." Yep. sure sounds like there are some questionable fund conversion issues here.
Finally, look at this:
Respectfully Submitted
_______/s/_______________________
Victor E. Cretella III
230 E. Patrick Street
Frederick, MD 21701
301-228-2705
vec@publishamerica.com
Bar No. 13459
Counsel for Willem and Alice Meiners
DECLARATION
I declare under penalty of perjury that the facts identified in this motion are true and correct.
Yeah. That's PublishAmerica's address, phone number and email account.
As if this wasn't sloppy enough, we have something else to show you! This document is the Declaration from the Private Investigator, Bernardo Yepes hired by PublishAmerica in this lawsuit that has been dismissed by federal judge Quarrles. The lawsuit takes a very bizarre twist here. We discovered this document filed in case number L-09-2387 This is a document involving the lawsuit that Dolores Dawes Llyod filed against PublishAmerica LLLP. The personal information contained within this document does not involve anyone by the name of "Thomas Meyer." but instead of another man, with a similar sounding surname but different spelling.
The next segment of this story, is a post made on the Bogus Barrister blog. You may start reading this and think to yourself, 'okay, but just what the hell does this have to do with PublishAmerica?' This involves a man who is being indicted for embezzling funds from a church that were set up as a legal fund for Rifqa Bary. Brian Smith has aided a known terrorist organization. By this man's own admission, he was gathering information on, harassing and has some sort of arrangment to provide PA with information about Reverend Synthia Darknes. Nobody seems to know exactly what happend to Brian Smith. Shortly after he was reported to the FBI for this activity, he disappeared from the Internet. We are not saying that this guy had some sort of conspiracy going on with PA. That's what this Brian Smith guy was claiming. In any case, he incriminated himself and Publishamerica.
This is what the Bogus Barrister blog reported on this. Reprinted here with permission.
The Bogus Barrister is always happy when we get our chance to help law enforcement. We are proud that we have been in contact with officers across the country and that our tips have lead to arrests. I wanted to take this moment to thank men and women who join law enforcement and who put their lives on the line to keep our citizens safe. We have been busy at the Barrister today working behind the scenes in one of the strangest incidents we have encountered in a long while. We hope that anyone with information about this perpetrator will get in touch with us and the Orlando Florida police department.
Brian Smith is forty years old and is thought to live in Orlando. The victim in tis case is the writer known publicly as Sinthyia Darkness. Although there are but a couple of references to Thomas Meyer, and a male internet user who uses the handle "Ironball" Smith's real target here is Sinthyia. There has been some discussion recently about who Sinthyia Darkness really is. Because of our involvement as a result of an anonymous crime tip to the Bogus Barrister, I believe that the question as to the identity of this person is solved and although the name Sinthyia Darkness does appear on the court docket filed by Vic Cretella on behalf of his clients Mr and Mrs Meiners there should only be the names of Mr. Dolan and Mr. Meyer on it. This is an important point because the man Mr. Smith although motivated by revenge, intimates that he has formed an alliance with PublishAmerica. PublishAmerica may say differently but we are only going by the statements published on the Internet by Mr. Smith. He has many such statments more than once.
Mr. Dolan, Meyer or Darkness have never met Smith in person. Smith joined an Internet news group powered by Yahoo in 2008. The group is run by Rev. Meyer's ministry. Let me point out that this is not Brian Smith's first attempt to scam a church or religious organization. He was appointed an officer of the Global Revolution Church in Orlando. He and two other men embezzled and/or misappropriated funds sent to the church from all over the country by Rifqa Bary's supporters intended for Rifqa’s legal defense fund. Bary was fleeing CAIR a Muslim organization that has known terrorist ties. Bary was found guilty under sharia law and thus the need for the legal defense fund. Smith and two accomplices are accused of embezzlement, mail tampering and wire tapping. So even before we get to what he is doing to these people, the guy has a pattern of criminal activity.
Mr. Brian Smith began sending Sinthyia personal emails that suggest he wanted a personal relationship with this person. It is very awkward for me to write this with what I know based upon what I have learned today but for the sake of argument when I mention Sinthyia I will simply refer to this writer as female.
Smith is or was married but claimed that he and his wife were swingers. In act he still has personals ads on the Internet seeking women or a couple. To each his own I guess.
I have spent my day reading email exchanges and from the get go, Mr. Smith was trying to invite himself over to Sinthyia's home. Within a year, his comments in said Yahoo forum were off color. He spoke about his avid love of guns and boasted about the weapons he owns. He made racial remarks about the President and it was then that moderators stepped in and told him those comments would not be tolerated.
There is an exchange between Smith and the moderators over it and Smith is put on moderation to which he protests. Smith goes into a rage and writes Sinthyia privately. He demands that the moderator be thrown out of the group. She refuses. He sends her emails supposedly from the moderator who uses the moniker "Ironball" which he altered to make it appear that this man was making nasty remarks behind Sinthyia's back in order to instigate a fight. "Ironball" immediately emailed the exchange with full headers to prove that these emails were altered. Ironball's words were changed to make it appear that he was laughing about Sinthyia's supposed battle with cancer.
Smith is banned from the news group. He sends threatening emails to Sinthyia demanding an apology and then blackmails her with the emails that he has altered. He says if he does not get an apology, if Ironball is not thrown out of the group that he will "go public" with these emails. Smith also at the time thinks that Sinthyia is a mayoral candidate in the 2009 Miami-Dade election due to a news report in the Miami New Times and he writes her to say that his great-Aunt so and so was the first female judge in Miami and he boasts of his political connections. He says that he will use these connections to rig the election and ensure she never gets elected. Several members of the group, including moderators send these threatening emails to the abuse department of Yahoo and two of Brian Smith's email accounts get shut down for violating the provider's terms of service. The accounts closed were cyberbouncer6877@yahoo.com and cflparanormal@yahoo.com . Smith claims to operate some sort of "paranormal research" group in Orlando. We have contacted Central Florida Paranormal and they have never heard of Brian Smith. Timothy Fitzgerald is the man who started the Central Paranormal organization known as cflparanormal.
Since then Smith has harassed them on websites and message boards. Mr. Smith making good on his threat to publicly publish these fictitious emails did so on his website http://www.paranormalghostsociety.org/TheatricalClowns/index.php?topic=680.5;wap2. Bogus Barrister visited that page last month when AW linked to it. You will see Smith's name and altered emails up there. You can see that this entire website has been created to harass people on the Internet. Smith is also suspected of being the one who has pretended to be Sinthyia and Meyer on a Wikipedia page that was created in the name of "Sinthyia Darkness" which is the name the publishamerica book was published under. Smith copied and pasted that defamatory article as a comment on the Miami New Times. Take a look at this. Smith is posting under several aliases on this website to make it appear that it is more than just him engaging in this harassment.
" bruce oshea 2 years ago
Sinthyia is a fake and a attention seeker. She attacks people out of jealousy and to seek pity from others. There is major drama on the Internet about her spoofing a website owned by lord Rick and blaming on others so she can seek sympathy and claimed she was attacked by Lord rick because she was jealous of his fame. Recently the same has occurred on her yahoo group Titled "miamicenter for paranormal research" when her boyfriend Thomas attacked the world renowned owner of cflparanormal, Brian Smith which was a long time friend but seemed to surpass sinthyia's fame. The attack continued even after cflparanormals' owner redrew from the group to avoid anymore confrontation. After Brian threatened legal action and to make public the harrassing emails and blatant slander of his reputation, thomas myer and synthyia filed unfounded complaints with yahoo, having his account removed wrongly. Luckily Brian Smith had all the related messages archived in a server and is now supposably working with authourities and legal advisors to obtain all complaints associated with Sinthyia and Thomas for civil and possible criminal prosecution. The probmAtic issue is that there are numerous alias' used by the two with possible ties to scams, an deceit. Is this who you want for mayor? she is a kook and a wee bit too shady for me. do a google search for lord rick and read his blog or visit his radio show website for more info, or go to cflparanormal on myspace and read his blog. Alot of drama for a mayor."
There are 72 comments. It looks like most are Brian Smith http://blogs.miaminewtimes.com/riptide/2009/04/sinthyia_darkness_wants_to_be.php . Take a look at the last three comments at the bottom there. The third from the bottom comment states that Sinthyia Darkness died. There have been odd death notices and fake obituaries popping up over the internet. She understandably was alarmed by them. They started showing up in December at the same time that she noticed her email accounts have been hacked, deleted and her blog has also been deleted due to being compromised. It is believed that Smith did this, given the fact that he makes his presence known ala Jack Nicholson "heeeere's Johnny!"
Of note! Brian Smith described himself in the above excerpt as "a long time friend." He was never a personal friend to any of these people and the emails I have in front of me reflect that. Smith however has repeatedly tried to give the impression to the contrary.
He creates a fictitious Facebook account under the name "Claire Voy" and this happened sometime last week. I have copies of the screen shots that were made to document these incidents. The profile seems to have been removed now. "Claire" aka Brian was claiming to be a psychic and comes over to the "Sinthyia Darkness" Facebook page.
I feel that I must warn you. A ghost of your hidden past has returned to haunt you !"
A few facebook users responded about this strange comment from "Claire" to which Smith replied,
"i see a small tan house with three large palm tree in front, a white vehicle with latters on the roof. the words sin, darkness, piano, purple rope, and untruth all continue to run thru my head."
Smith describes a house where Thomas Meyer's father lived. For some reason, Smith thinks Sinthyia's last name is Darkness and has been trying to find this person. He knows the name of Thomas Meyer but the person that he has found and that he is tracking is Meyer Sr not his son. The same happened to the private investigator who was hired to locate these people. The name Sinthyia Darkness is not on radar at all. In what Cretella filed in the court case, he states that not even the justice department has any record of a person by that name. All of that searching only to end up with only information on a couple of men. I'll get to that in a minute.
Brian as " Claire Voy" makes reference to "piano." It is Meyer's father who is in the piano business. He is the tuner and piano shop owner as once was advertised on the Sinthyia Darkness blog. Couple of weeks ago, Meyers says a man showed up after hours and was sneaking around the plaza. Mr. Meyers views a picture of Smith and identified him as the man who approached him that night. He says that Smith ran up to him and was yelling. He was clearly looking to start a fight. It is believed that Smith is still watching the piano store. It is also worth mentioing that Meyer says within the past couple of months he was gotten fraudulent phone calls. One of them from a bank that he does not have an account with, fishing for personal information.
This problem with Smith has been going on now for the past four years and there are police reports which the Barrister has obtained. We deal with these Nigerian scammers who make all sorts of threats to people and we know that if they have the means and the drive to carry out these threats its only a matter of time before they do. Smith comes across as very disturbed. He uses the phrases "you destroyed me" in these letters. Closing down an email account doesn't "destroy" anybody. In his mind it did people that are desperate or have nothing left to lose are the most dangerous. We at the Bogus Barrister crime blog do feel that these people are all in serious danger.
Banning/blocking this Smith fellow doesn't seem to deter him. "Claire Voy" was banned/blocked from contacting his target on the Sinthyia Darkness facebook page. Smith then creates another fictitious profile, this one impersonating Sinthyia Darkness corporation as "Synthyia Alice Dark" He chose the vanity URL of http://www.facebook.com/synthyia.darkness. We have
obtained archived pages and screenshots documenting what Smith posted on the wall. He listed the location of Meyer sr's home on the profile and threats to "come after" her. He repeatedly calls her "Sin" like he is a close friend but "Sin" is not any nickname.
If you visit the imposter Synthyia Darkness page, also note that Brian Smith has linked two of his personal accounts to it, This one and this profile and of course Claire Voy. On his real profile or at least the profile that he uses he real name, he claims to be a "Sargent" at the Spartan Protection Agency in Orlando. We have contacted them in an attempt to verfify this claim and anxiously await a response.
Here is one of the threatening comments Smith wrote as Synthyia Darkness
Synthyia Alice Dark Sinthyia Darkness
see a fictious person is someone a author writes about....put a person who takes on a ficious name is still responsible for their actions, they are still the person but with a ficticious name..i have emails from long ago sin and thomas and old ironball talking about sin and i have a picture of sin in a srticle running for mayor..i am the ghost from the past..i work for no publishing company, but will gladly give them the proof they want..i can prove who sinthyia darkness is..i can prove what fake websites she has run over the years..Ive been waiting for years to make things even...I know she fakes her own death on the news site she was running, i also know she posted her own death on "find agave" ...I never disappeared I just sat back and built my bag of evidence..i'm just telling you that i kniw what you did and I'm gonna help prove it because of what you did to me."
He has also been sending creepy unsolicited messages to those who subscribe to the Sinthyia Darkness page.
He has been writing accusing Sinthyia of various criminal activity. Anybody who knows about Sinthyia Darkness' former blog knows that this person helped clean up the Internet by exposing criminals. Smith goes back and forth about his Yahoo accounts being closed. In one email he admits that he knows he was reported to Yahoo and that it was Yahoo that shut him down and in the next contact he accuses Sinthyia of "hacking" him. Not only has Smith created these Facebook profiles but he has also opened up an email account to impersonate Sinthyia on the Internet. He opened the account synthyia_darkness@yahoo.com and began sending threatening messages to an email address owned by a horror fiction book club. The name on the outgoing emails is "sinthyia Darkness." Last week he sent this creepy message.
from> Sinthyia Darkness< synthyia_darkness@yahoo.com "4 years ago you and Thomas wrongly destroyed everything I built... You could of fixed it and apologized but you didn't. I've spend 4 years waiting and watching you build fake site and build yourself as sinthyia darkness, I have all the archives of this and ip addresses of it all and pictures of you that you labeled as sinthyia darkness.. You over the years have proven you are real but have a ficticious name, sinthyia isn't a fictitious person but your alias and I have the legal proof of that... I have every reason in the world to turn this over to PA and I will.. Fair is fair, you destroy what I built and I return the favor >> >>Sent from my Super secret spy I-phone communicator device.."
His Super Secret spy device is a cell phone with Internet service provided by t-moble. I have a copy with full headers. If his internet access is through this phone then you can bet he verified this email address and Facebook accounts with his phone number.
Last night, Smith sent another threatening email message aimed at Rev. Sinthyia from his email account he created in her name. I think it is very important to point out that this email was sent to an email account that he thinks belongs to "Sinthyia Darkness" but it does not. He has been sending them to an email address owned by a fictition horror book club. The book club actually Googled the name Synthia_Darkness and thought at first this crazy email was sent from Sinthyia to them. Later emails have proven that they were aimed at her by some warped person (Smith).
From Synthyia Thu Mar 1 17:35:48 2012
X-Apparently-To: xxxxxx@yahoo.com via 98.138.85.241; Thu, 01 Mar 2012 17:37:14 -0800
Return-Path:
Received-SPF: none (domain of yahoo.com does not designate permitted sender hosts)
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Subject: Busted
From: Synthyia
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I can tell you this now... I report you to craigslist and yahoo and facebook, I stated I would press charge for Internet crimes and harassment along with libel... Your ip address is being forwarded to the Internet crimes unit of the FBI .. You hand to use a email to post the craigslist ad and confirm an account using a cell number I'm also pushing for identity theft... One of these will give me your true names on a legal document and your ip address that's all I need... As soon as I get it it's going to publish America ... And I am pressing charges... Lol you still think your untouchable... Yahoo and facebook have been monitoring my account for a week now because I knew you would attempt to hack them... So predictable... Thanks again Sent from my Super secret spy I-phone communicator device....
His message is for the most part incoherant. But he seems to be accusing her of the very things that he is doing to her and has been doing to the Meyer family over the past four years. Sinthyia has not posted any ads on Craiglist. He does not have anything to report this person for. He is the one sending out these emails and he is the one who created these accounts pretending to be her.
As some of you who are readers of this blog already know, Sinthyia Darkness does have a legal dispute but it's connection to Publish America LLLP is that it involves the CEO of the company. It is a personal issue and in no way involves Brian Smith. As you see, Smith is attempting blackmail by saying he is going to give them information about who he thinks she really is. This is blackmail plain and simple regardless of what Smith might think it is. From these letters is is clear that all that has bee done is defend against his harassment and threats.
Smith seems to be under the impression that the litigants do not know the "true names" of Sinthyia Darkness but in fact there is no mystery. I took the time today to go over the court case and as far as the litigants are concerned, all parties have been notified. Smith appears to be using this an excuse to stalk. This Brian Smith character is a real peach.
He has in fact made death threats and those are published in one of the most recent comments on the Miami New Times article.
Cflparanormal 4 days ago in reply to Have Some Respect
the girl aint dead... she faked her death to try to escape all her negativity and law suits.. shes a scammer.. try to read the article again.. it puts you on a dead link to a fake newspaper.. the go to her group "miami paranormal investigation society" and try to read the investigations... it takes you to the same fake newspaper.. she created it to make her self look famous and then to fake her death
Cyberbouncer 4 days ago
see that girl ain't dead ...but she will be soon... see i will get even for what she did to me... yes sin its me Brian Smith ill be seeing you soon sin
Now going back to what I was saying about who Sinthyia Darkness really is. I doubt it would come as any surprise and it has even been hinted at in what Vic Cretella wrote in a few of his documents. Anybody who has ever read anything written by Phillip Dolan knows that he is a brilliant writer. His research is top notch Mr. Dolan is an expert about PA. Dolan is an expert in being able to disgusing his "voice" in what he writes to be able to give his writing a feminine flair. Go read something he has written and the truth will smack you in the face. Vic Cretella has taken notice and points to the parallels in these writing styles. In the Meiners' lawsuit he compares posts written on The Guild which are known to be unquestionably written by Dolan in 2008 to the articles published in 2010. When we decided to check into this several sources have notified Bogus Barrister that Sinthyia Darkness' real name is Phillip Dolan. There is no mystery here. Everything I have seen leads me to believe this is true.
It's ironic that although Smith mentions his animosity toward Ironball and Meyers neither men have gotten any recent emails from him. Why? It looks like his targets are women. Smith is convinced that the writer known as Sinthyia Darkness is a woman. So if you're a woman on the internet, please be careful and be aware that the world is full of Brian Smiths.
on March 1st, Smith posted this message on the Fake Facebook page he created in his attempt to pretend to be Sinthyia Darkness
Synthyia Alice Dark
I started this page as a classifier to the person "sinthyia darkness". The person sinthyia darkness is a fictitious person, and all her legacy and accomplishments and websites are that also, FAKE. do your reasearch, even the creator has tried to establish this by make a page on facebook stating so. So all the websites ...such as "Miami Paranormal Investigation Society" and 'Reverend Sinthyia" are all fake. She was never a real paranormal investigator, never a fashion designer, never a reverend, and never a internationally known author... She is fictitious.. so all those people following her and believing her are following a fairy tail.. do the research and figure it out for yourself, her creator stated so and even went as far as to try to stage a death to get people to stop following her like a real person. you would be better off following reverend santa claus the paranormal investigator and fashion designer... come on people get a life.. shes not real, shes not a designer or a investigator, and her paranormal investigation society never existed.. do a google search and see if you can find a physical address..it doesnt exist.. if you do a search of the paranormal society and look at the investigations it will send you to a fake news site and the writer is... yep you guessed it "sinthyia darkness... now i will warn you a lot of people are trying to be her and before long they will try to take the fake identity and eventually take and change the phony sites but just remember no matter what she does not and has never really existed... she started as a joke and then built into a character on the net... some crazy person actually wrote a poem and paranormal book and assumed the name even, but if you read the book you will see it was horrible because it was quickly thrown together as a joke.. so get over it people
March 1 at 10:57pm
Yes indeed. The hacker has confessed. The real Sinthyia Darkness Facebook page has been compromised and the catagory was changed from journalist to fictional character.
We have just discovered a forum called "Ghost Lab" on which someone using the handle cflparanormal has been engaging in discussion since 2009. This should show you how sick and demented Mr. Smith really is. Allow us to restate that the Bogus Barrister has contacted the Central Florida Paranormal organization and verified that they do not have anybody named Brian Smith associated with them. The real owner of CFLPARANORMAL is a man named Tim Fitzgerald. CFLPAPRANORMAL has it's own internet radio show. and it's own Facebook account.
Be that as it may, Mr. Smith shows the world his paranoia when he starts an unprovoked attack on "Sinthyia Darkness" on this message board over another user there calling themselves, DarkAngel251978. He is using any sort of excuse like this to follow people who he has any suspicion of being Sinthyia. For the record, the real Sinthyia Darkness has never been a member of the Ghost Lab forum. This writer has never used the handle darkangel251978, syn. Another quick searchreveals that darkangel is a woman named Sandra Morely. If you know her let her know that she could be in danger. We are trying to contact her.
You know what I find really concerning about that forum? Look at the writing styles. I have looked over 280 + emails involving this Smith to write this post. He has a very distinctive writing style. All but maybe one of those users of that forum have that same writing style.
"Posted 02-03-10 08:15 PM
I would like to clear up a little slander scam that is going on with this board and across the Internet. Let me introduce myself I am Brian Smith founder and owner of cflparanormal out of Orlando Florida, I can be contacted via email at cflparanormal@yahoo.com or via my myspace page with over 500 members. The person posting on this board is not me nor affiliated with cflparanormal in any way. There is a slander scam on the Internet aimed at me via a bipolarfemale and her boyfriend and they go by many aliases,some of which are dark angel, syn, sinthia darkness, and many others. She has because upset with me because I exposed the fact the the fictious "Miami center for paranormal research" never existed, her and her purple magic lasso never did any true investigations, and that her supposabe campaign for the mayor of Miami was just to gain attention. She claim to be a world known author (publish a book of poetry thru publish America lol) but she is really just a trouble maker in the paranormal community. She has mental issue to the point of losing custody of her son due to the imbalance. Any posting with cflparanormal on the Internet about cflparanormal should be taken with a grain of salt and please feel free to contact me directly about and question of authenticity of any statements supposably made by me.... The is a Internet talk show host named lord Rick who has dedicated much of his time to exposing her and her other identities feel free to Internet search him or google sinthia darkness and you will soon realize all the people endorsing her are the same people which are evidently her other personalities... Thank you Brian Smith the real cflparanormal "
We need that person who came here to enlighten us about narcisizm to tell us what is the name for the mental state when somebody goes around victimizing people and then accusing the victim of doing the very things they are doing to the victims.
This just goes to show you what a dangerous place the internet is. That's why I don't let my kids join any chat rooms or post to any message boards. Oh and just in the event they ever do meet up with a creep like this, daddy carries guns.
Thursday, October 9, 2008
Another Disgusted PA Author
Hello everyone. I started this blog to spread the word about the deceptive practices of Publish America. I choose to be anonymous here, for at least the moment. In fact, I am very well known in my field and have been offered a television talkshow because of my status. About two years ago, I was an unpublished author and I signed a seven year contract with Publish America. The publisher has just mailed me a ridiculous check for $1.oo and some change. I know my book is selling well and I am completely disgusted. I am going to the news media about this in the morning so you will all find out who I am soon enough.
I have been doing some online research and discovered many unhappy PA authors. If anyone is interested in doing a class-action lawsuit, please leave me a means to contact you. This company has stolen enough money and dreams.
I have been doing some online research and discovered many unhappy PA authors. If anyone is interested in doing a class-action lawsuit, please leave me a means to contact you. This company has stolen enough money and dreams.
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