www.3atalk.com

Fran McDonald on Maritime SDA Online wrote: I am sure you would agree with me that God does not make mistakes, but man does.

As I have read your posts, I believe you too have a relationship with Christ, His Father and the Holy Spirit.

Was this delay caused by God or man? Dare I say both? God may have a plan, but I am sure he has factored in peoples Free Will.

No matter, God's will has already done something.

He has taken going on 5 years to break the horrible news to Adventists first. He has been sending out warning signs all this time. Was it done the way God originally planned? I don't know, but I am assured he is in charge.

What has and is happening at 3ABN is evil in my eyes. 3ABN's Board's tolerance of Danny's and their own activities, when it has been shown that it was preplanned and evil, is evidence that 3ABN needs drastic change, or it needs to be removed totally and permanently from the Seventh-day Adventist Church.

How and when God decided to deal with the evil I see is totally up to Him. It is not over.

In reading some evidence that Bob Pickle has submitted in his defense is astounding!

It seems the subpoena for Delta Airlines was the straw that broke the camel’s back!

In documents 96 through 120, you can read the events that led up to the case being dismissed.

These documents make it plain to see who is lying and who preplanned their attack against Linda Shelton.

Bob blew the top off their plans. In Document 96 & 100, Bob explains it all in a very detailed and organized manner!

I laughed when Bob referenced, in Document #114, on page #3, Bob says to refer to CD #1, Page #6157! I cracked up and laughed until I couldn't breathe!

He later references other CD's. No wonder the judge said that if Danny and 3ABN decide to file suit again, it must be in his court! He has already read all that stuff! He knows the facts.

Who else but Bob would or could do all he has done! He pursues evidence to make sure his evidence is truth and all truth! Could this be God's will? I believe it is.

Document 100 is very clear about Brenda Walsh lying! It has to be very embarrassing for her.

God has been very busy. The story is being told, but is anyone reading it?

Find Documents #94-#123 and you too can read of the lead up to the dismissal. It starts with all the subpoenas being issued beginning with Remnant, then Fjarli, the Customs and Delta Airlines!

Bob hit hard. And 3ABN does not want this information to be released to the Adventist community.

There is information in 96 and 100 that I had never heard.

If someone else can post PDF Doc's, email me and I will provide pdf copies of Documents 96-121 I tried saving them as a txt file, but all the formatting is lost and it loses its impact.

One fact cited is this:

8. An inquirer called Walsh around the spring of 2008 to ask her about Linda Shelton. The inquirer sent a recorded copy of that telephone conversation to the Defendants. In that conversation Walsh stated:

Quote:

4. On March 4, 2004, Walsh wrote Dee Hilderbrand, a 3ABN employee, informing Ms. Hilderbrand that Walsh had made reservations with Delta Airlines for tickets to Florida, that
the confirmation number was RV163S, and that the tickets needed to be purchased within 24 hours. Walsh’s email is attached hereto as Exhibit C.

5. On March 5, 2008, tickets pertaining to confirmation number RV163S for Walsh
(ticket # 00621930502970, SkyMiles # 2207208956) and Linda Shelton (ticket # 00621930502981, SkyMiles # 2075843512)
were purchased with an American Express credit card ending in 3209. These tickets are for flights from St. Louis, Missouri to Tampa, Florida via Atlanta, Georgia, on April 4, 2004, and returning on April 9, 2004.

The receipts were printed out on March 8, 2004, from a computer account attributed to Mollie Steenson, according to the URL printed at the bottom of each receipt. These receipts are attached hereto as Exhibits D–E.

6. Inasmuch as Walsh told Dee Hilderbrand that the tickets needed to be purchased]'within 24 hours, that the same credit card was used for both tickets, and that the receipts were printed out from Mollie Steenson’s computer account, the conclusion can be drawn that 3ABN paid for these tickets.


Quote:
Brenda Walsh's Telephone conversation

I said ...,

“I’m not going, I said, if if Danny, if ... doesn’t approve of this.” ...

“I’m not doing this.”

But I refused to go. And she did buy my ticket, and I refused to go. And I still have a copy of my ticket because it’s still unused. But her ticket is used.


But we find Linda did not go on that trip at all! Brenda did not purchase the tickets. Dee did it through approval of Mollie! A 3ABN card was used!

No wonder this information was not what Danny and his helpers wanted America to know.

You will see where they had to cut their losses, finally, but too late.

All we all need to do is talk about the facts and not about our opinions of each other, right? Can that be done?

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO FILE UNDER SEAL wrote: This constitutes the Plaintiffs’ Opposition to Defendants’ Motion to File Under Seal (Doc. 153). Over the relevancy objections of Remnant Publications, Inc. and the Plaintiffs, Defendants convinced the District Court for the Western District of Michigan to allow them access to records regarding dealings between Remnant and the Plaintiffs. However, the Michigan court expressly ordered that the Remnant documents were being produced “subject to the Protective Order already entered in the underlying case.” (Simpson Aff. Ex. 1).

On October 30, 2008, as part of its order dismissing the case, this Court ordered Defendants to return all confidential documents. (Electronic Clerk’s Notes for proceedings held before Judge F. Dennis Saylor, IV – Affidavit of M. Gregory Simpson Ex. 2). Defendants refused to comply with this Court’s order, both with respect to the Remnant documents at issue in this motion and with respect to all other documents designated as confidential under Judge Hillman’s Protective Order entered on April 17, 2008 (Doc. 60). (See Simpson Aff. Exs. 3 & 4). Judge Hillman’s order had permitted the designation of documents as “confidential” whether they were produced by a party or a third party. (Doc. 60 at pp. 1-2). The Remnant documents were designated as confidential by both Remnant and Plaintiffs. They were ordered produced with that express understanding.

Instead of complying with this Court’s order to return the Remnant documents, Defendants began talking freely about them on the internet, stating falsely that they prove wrongdoing by the Plaintiffs. (See Simpson Aff. Exs. 5 and 6). At the same time, Defendant Joy began making veiled death threats against the Plaintiffs, suggesting that Plaintiff Shelton was like a conquered king and “you know what they do with conquered kings? Ask the czar and his entire family!!!” (Simpson Aff. Ex. 6), and referring to his actions against Shelton and supporters of the Plaintiffs as “ethnic cleansing.” (Simpson Aff. Ex. 7).

Now, in a rather transparent effort to publicize documents that had no relevance to the underlying lawsuit and even less relevance to the motion at hand, Defendants move to file Exhibit A to the Affidavit of Robert Pickle (Doc. 152), under seal. The benefit of filing the document under seal is somewhat diminished, however, by Defendants’ description of Exhibit A as “a selection of the documents from Remnant [Publications, Inc.] pertaining to kickbacks and/or royalties from Remnant to DLS Publishing, Inc….” The point of filing these documents under seal is obviously undermined by Defendants’ characterization of what they represent. (In point of fact, the Remnant documents reflect perfectly legal transactions that have been fully vetted by certified public accountants and evidence no wrongdoing by anybody).

Quite frankly, Defendants have been talking about these documents on the internet for some time now. The only apparent purpose of this motion is to provide Defendants a forum to publicly characterize confidential documents that they have been ordered to return to Defendants. By calling these documents evidence of “kickbacks and/or royalties” in a public filing, the Defendants can now quote themselves endlessly on the internet, as they tend to do, with citation to a public filing for support. They have abused the judicial process hopefully for the last time.

The motion should be denied because Exhibit A does not contain admissible
evidence. Evidence is admissible if and only if it is relevant. Fed. R. Evid. 402.
Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid. 401.

This case is over. It has been dismissed. The only remaining issue is the pending motion by Defendants for reimbursement of “costs,” which to them means every expense they incurred that is metaphysically related to this case, including Mr. Pickle’s cost ofshowering at a camp site while supposedly traveling to investigate allegations related to the lawsuit. The Court is well-advised of the parties’ positions with respect to that motion, and has no need of Mr. Pickle’s laughably twisted take on the royalty payments reflected in the Remnant documents.

Pickle’s affidavit indicates that the Remnant documents somehow show that the lawsuit itself was frivolous. This contention is itself frivolous. The lawsuit mentions royalties in just two allegations: Complaint ¶ 46(h) and 46(i) – alleging that Defendants defamed Plaintiffs by stating that Shelton refused to disclose royalties in divorce proceedings. There was never any dispute that Remnant paid royalties. The issue was whether these were properly disclosed. Defendants have never produced even an iota of evidence that the Remnant royalty payments were improperly characterized in any court proceeding or in IRS reporting. All the evidence has been to the contrary.

Defendants’ motion for costs should not become a backdoor means of arguing the merits of the case. The point of dismissing the lawsuit was to stop the lawsuit prior to reaching a determination on the merits, to spare the resources of the Court and the parties. Defendants did not see fit to offer Exhibit A in connection with that motion, and should not be allowed to add new arguments and evidence in support of their position now. If the merits of a dismissed lawsuit are to be addressed in the context of a motion for costs, there is no opportunity for Plaintiffs to respond adequately. Further, the benefit of dismissing the case would be lost if Plaintiffs were now forced to produce all the evidence that supported the case in what would be an endless procession of affidavits from the many witnesses who would have proven Plaintiffs claims had the case proceeded to a resolution on the merits.

If the Court is inclined to consider Exhibit A, then Plaintiffs agree that it should be filed under seal. The best course of action would be to deny Defendants permission to file it at all.

-----Original Message-----
From: Bob
Sent: Wednesday, December 24, 2008 11:21 AM
To: Greg Simpson
Cc: G. Arthur Joy
Subject: Possible motion for sanctions

Counselor Simpson:

Mr. Joy and I were conferring yesterday regarding your opposition brief
to our motion to file under seal, which you filed on Monday. We feel
that your brief's content is such that it should warrant sanctions.
Before we decide to move forward with a motion for sanctions, we wanted
to give you the opportunity to withdraw your brief.

Will you be withdrawing your brief?

Bob Pickle



[His response:]
----- Original Message -----
From: "Greg Simpson"
To: "Bob"
CC: "Gailon"
Sent: 12/24/2008 11:42:47 AM -0600
Subject: Possible motion for sanctions

Merry Christmas to you too, guys. I'm going to miss you when this case
is over. The answer is "No."

M. Gregory Simpson

L. “This case is over.” (Doc. 158 p. 3).
Thus wrote Plaintiffs’ counsel on Monday, December 22, 2008. Yet just two days later,the same counselor wrote to the Defendants, “I’m going to miss you when this case is over.” (Pickle Aff. Ex. N at p. 2). Thus, Plaintiffs’ counsel does not really believe that at this point in time “this case is over.”

This case is over. It has been dismissed. The only remaining issue is the pending motion by Defendants for reimbursement of “costs,” which to them means every expense they incurred that is metaphysically related to this case, including Mr. Pickle’s cost of showering at a camp site while supposedly traveling to investigate allegations related to the lawsuit. The Court is well-advised of the parties’ positions with respect to that motion, and has no need of Mr. Pickle’s laughably twisted take on the royalty payments reflected in the Remnant documents.

Further, it should also be pointed out that the Plaintiffs and their counsel have filed plenty of unsupportable statements which then get posted and commented on the internet by their allies who are seeking to destroy the reputations of the Defendants...

Echo wrote:Simpson brought up a cornucopia of important points that further open the window of clarity on the behavior, intentions and factual manipulations of Mr. Pickle.

I would like to see Mr. Pickle prove that his $6.00 shower, taken in New Lisbon, Wisconsin, and trip to Madison, Wisconsin was truly related to gathering information pertinant to the litigation at hand. Should a court allow Mr. Pickle's request to be reimbursed without proving this and his other claims, it would be used by Mr. Pickle, as Simpson noted, as proof that it was a legitimate expense, giving him a false sense of further credibility that he could cite endlessly in his constant rantings. IMO, it is looking more like Mr. Pickle's attempt to be reimbursed for this cost and for the mileage to get there as an expense actually related to the law suit could be classified as false, which would make Mr. Pickle a bearded faced liar.

Defendants then brought up the issue of their litigation costs. The Court verbally advised the parties that the Defendants may file a motion for costs, that the Plaintiffs would have an opportunity to respond to it, and that costs might or might not be awarded.

The Court advised the parties that its allowance of a motion for costs did not indicate that it had determined costs were awardable. Notably, the Court did not authorize a motion for reimbursement of attorneys fees and general litigation expenses.

On November 13, 2008, the Defendants filed the present motion ostensibly for “costs,” but in substance seeking recovery of $110,000 of claimed expenses which are clearly not recoverable as costs. Half of the claimed amount is for attorneys fees; $20,000 is for an undisclosed expert whose services were never used in any court filing; and $30,000 is for Defendant Pickle’s “cost of time.” None of the items claimed would qualify as costs under 28 U.S.C. § 1920.

[UNITED STATES CODE TITLE 28 > PART V > CHAPTER 123 > § 1920

28 U.S.C. § 1920. Taxation of costs

A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.]

Not only are the claimed expenses not recoverable because they are not necessary to avert legal prejudice to the Defendants arising from the dismissal and are not “costs,” there is insufficient justification provided to determine whether the amounts claimed are justified – that is, whether the expenses were reasonable and necessary. The entire claim must be rejected for these reasons

...
B. Defendants’ Motion Should be Denied Because the Claimed Costs and Fees Were Not Reasonably and Necessarily Incurred.

Defendants’ claim for costs and fees should be denied for the additional reason that Plaintiffs have not met their burden of showing that the fees and costs were necessarily incurred. They have not presented evidence that would permit this Court to ascertain what the expenses were for, and how they advanced the litigation. Instead, Defendants have simply presented, in effect, all the expenses they incurred and left it to the Court to divine which ones were reasonable and necessary. The Court should deny the request based on the complete absence of evidentiary justification.

...
4. The Claim for Mileage Must be Denied.
Defendants seek $993.62 as reimbursement for two “fact-finding” trips to locations in Illinois and Wisconsin. Defendants do not supply any authority for the award of a party’s transportation expense, which is not on the exclusive list of recoverable costs found at 28 U.S.C. § 1920. Further, Defendants do not show how reimbursement of these expenses would mitigate legal prejudice arising from the voluntary dismissal of the case. The claim for mileage must be denied.

5. The Claim for Miscellaneous Expenses Must be Denied.

Defendants seek $4,614.90 as reimbursement of "miscellaneous” expenses incurred that are listed in the Pickle Affidavit at Table 2. None of these items is a recoverable cost. None of them need be reimbursed in order to avert prejudice arising from the dismissal. Some extreme examples of Defendants’ overreaching can be found on Table 2, for example, where Pickle seeks $6.00 for a shower he took on April 25, 2008 at the North Lisbon Travel Center. In the annals of jurisprudence, it is doubtful that anybody ever sought reimbursement for a shower as a litigation cost. More to the point, it is hard to see how reimbursing Pickle for his shower will alleviate prejudice resulting from dismissal of this lawsuit. Presumably he would have showered anyway. The same is true of each expense on the list – they would have been incurred and would not have been recoverable no matter what the outcome of the litigation was, and reimbursing Defendants for them will not alleviate any legal prejudice arising from the dismissal

II. PLAINTIFFS’ OBJECTIONS REBUTTED

A. Expenses Reasonably and Necessarily Incurred

The costs, expenses, and fees referenced in the instant motion were reasonably and necessarily incurred. (Pickle Aff. ¶¶ 32, 37, 45, 53; Affidavit of Lynette ******; Affidavit of Laird Heal (hereafter “Heal Aff.”)). Attorney Heal has submitted an additional invoice for later services amounting to an additional $9,524. (Heal Aff. ¶¶ 8–9, Ex. A pp. 16–20).
...

D. Travel Expenses for Two Trips
The reported mileage and miscellaneous travel expenses were as much expenses of this litigation as any other. These trips resulted in securing, inter alia, (a) documentation from 1998 of 3ABN’s virtual gift of a house to Shelton as a retirement benefit whereby Shelton profited by almost $129,000 in one week, and (b) the 1757-page record from 3ABN’s property tax case in which Shelton testified under oath that he received neither housing nor retirement benefits.(Pickle Aff. ¶¶ 32–36).

E. Miscellaneous Expenses
The Plaintiffs object to the $6 shower. (Doc. 140 p. 16). Of the expenses associated with the two fact-finding trips, only one night’s lodging was obtained in a motel. Ordinarily, the cost of a shower is included in the price of a room. However, if in the interests of economy other arrangements are made for repose, one might have to instead obtain a shower as a trucker does, by purchasing one at a truck stop. Doing so makes that cost no less a travel expense than the accommodations attorneys that charge $300 an hour may be more accustomed to.

...

The record will now contain explanations for the various other expenses of this category. (Pickle Aff. ¶¶ 38–44)

The only remaining issue is the pending motion by Defendants for reimbursement of “costs,” which to them means every expense they incurred that is metaphysically related to this case, including Mr. Pickle’s cost of showering at a camp site while supposedly traveling to investigate allegations related to the lawsuit.

"How comparatively miniscule are all of the Defendants’ costs, expenses, and fees, not to mention the $6 shower."

“N. Lisbon Travel Center” where the shower was purchased is a truck stop, not a camp site.

Lynette D. Rhodes deposes and testifies to the following under penalty of perjury:

1. I am a Certified Public Accountant licensed in the State of California and a Certified Fraud Examiner certified by the Association of Certified Fraud Examiners. I make this affidavit based upon my knowledge and information.

2. I submitted the following invoices to Bob Pickle (filed at Docket Entry # 132-2) for professional services actually rendered in relation to Case No. 07-40098-FDS brought before the honorable United States District Court, District of Massachusetts:

September 30, 2007 #1350
October 31, 2007 #1372
November 30, 2007 #1394
December 31, 2007 #1414
January 31, 2008 #1429
February 28, 2008 #1443
March 31, 2008 #1465
April 30, 2008 #1487
May 31, 2008 #1501
June 30, 2008 #1522
July 31, 2008 #1548
August 31, 2008 #1561
September 30, 2008 #1589
October 31, 2008 #1603

These invoices correctly present costs that were necessarily incurred in the above referenced case, which set forth very broad and general allegations in the original complaint. The total amount due is $20,342.32 as of October 31, 2008.

FURTHER YOUR AFFIANT SAYETH NOT.
Signed and sealed this 8th day of December, 2008.
/s/ Lynette D. Rhodes
Lynette D. Rhodes, CPA, CFE

steffan wrote:This is the Memorandum in Opposition to Motion to Impose Costs . . .

it is a masterful filing that completely refutes the nonsense submitted by PickledJoy and co. It is certainly worth the time to read if you haven't yet.

viewtopic.php?f=9&t=127&sid=a38c5217d30 ... 02a3#p1147

Document 140 Filed 11/26/08 wrote: FACTS

Plaintiffs’ Complaint sought relief based on allegations that the Defendants owned and operated internet websites that published defamatory statements about the Plaintiffs,which drove away potential supporters and deterred donations. Defendants consider themselves “ecclesiastical journalists” whose primary focus is the doings of the Plaintiffs and their associates. The Complaint identified 24 specific defamatory statements made by the Defendants on their web sites and demanded that they be retracted. (Complaint ¶¶ 46-50, Doc. 1).

Although Defendants claimed to have proof of the truth of their defamatory
statements about Plaintiffs, the sources turned out to be anonymous informants whose identities the Defendants refused to reveal on grounds of a claimed reporter’s privilege. (E.g., Answer to Complaint ¶¶ 46a through 46j, Doc. 9 at pp. 25-29). Their answers to Interrogatories continued the pattern of refusing to reveal the sources of their challenged statements. This matter would have come before the Court had the case not been dismissed.

Unable or unwilling to offer proof of the defamatory statements that was
supposedly in their possession, Defendants purported to seek information proving the truth of their assertions directly from the Plaintiffs. They were given thousands of pages of records in discovery including virtually all of 3ABN’s corporate records and tax filings, and the internet postings that contained the defamatory statements.

Finding little help among the Plaintiffs’ relevant documents, the Defendants
adopted a strategy of seeking oppressively large amounts of irrelevant information that they hoped would contain at least something that would show the Plaintiffs in a bad light.

In an email to a confidante, Defendant Gailon Arthur Joy explained the Defendants’ plan to expand the scope of the case beyond the complaint:

"Unfortunately, because of the very narrow charges pressed by 3ABN
and Danny Lee Shelton, we must substantially expand the case to
bring in the most damaging and certain to sway the jury details. I
have deliberately dragged my feet hoping the IRS would move a bit
quicker and finish their investigation before we would have to
become extremely aggressive. It also conserved badly needed cash,
but D-day H-hour is just ahead and we cannot afford to delay
further." (Affidavit of Kristin Kingsbury, Doc. 76 Exhibit 21).

True to their word, the Defendants set about to use the tools of discovery to gather every scrap of information about the Plaintiffs since 1991, and in some cases even earlier. (E.g., Defendant Robert Pickle’s Requests for Production of Documents, Exhibits 1 and 2 to Affidavit of Kristin Kingsbury, Doc. 76). But Defendants were unable to gain full access to Plaintiffs’ records because the Plaintiffs sought to restrict the scope of permissible discovery to issues raised by the pleadings, and to protect their financial information from being made public. (See Motion for Protective Order, Doc. 40 and Motion for Protective Order Limiting Scope and Methods of Discovery, Doc. 74).

The Defendants adopted as a litigation theme the position that the Plaintiffs’ efforts to restrict discovery to potentially relevant matters, and to keep their records private, was stonewalling or, what became their catch-phrase, “a fraud on the court.” The only judicial finding on this topic, however, is Magistrate Judge Hillman’s finding that the Defendants’ “production requests and Rule 45 subpoenas appear to be overbroad and far-reaching,” and that “a substantial number of documents which would fall within the subject matter of the requests would be irrelevant to any claims or defenses, and otherwise outside the scope of discoverable information under Federal Rule of Civil Procedure 26(b)(1).” (ECF Doc. 106 at pp. 2-3). In other words, Plaintiffs’ efforts to narrow the scope of discovery were justified.

To circumvent the discovery delays and limitations they encountered in this forum as these issues worked their way to a conclusion, Defendants served at least six third party subpoenas seeking more or less the same information as was requested from the Plaintiffs. (See Mag. Judge Hillman’s order , Doc. 106 at p. 2). The information they sought in other courts was largely information that they could have obtained directly from the Plaintiffs. For example, they sought Plaintiff Shelton’s personal bank records dating back to 1998 from his bank. (See Subpoena on Mid-Country Bank, attached as Exhibit 6 to Kingsbury Affidavit, Doc. 76). They sought information on Shelton’s royalties from the publication of his books directly from the publisher. (See Subpoena on Remnant Publications, attached as Exhibit 3 to Kingsbury Affidavit, Doc. 76). They sought all financial and accounting records for both 3ABN and Shelton from their accountants. (See Subpoena on Gray, Hunter, Stenn, LLP, attached as Exhibit 4 to Kingsbury Affidavit, Doc. 76). They sought records regarding an employee who had filed a charge of discrimination against 3ABN, which was later dismissed, directly from the employee. (See Subpoena on Kathi Bottomley, attached as Exhibit 7, Doc. 76).

All of this information could have been obtained directly from the Plaintiffs by use of authorization forms or otherwise, but Defendants sought to circumvent any limitations that this Court might place on their factual foraging by using third party subpoenas issued by other courts. Plaintiffs resisted the end-run around this Court, and participated in motions to quash or limit the scope of the subpoenas in Minnesota and Illinois, in which they persuaded the courts to transfer the issue of relevance to this Court for resolution. (See Kingsbury Aff. ¶¶ 11, 16 and 17). The Defendants thus greatly increased the expense of the litigation for everybody, which was manifestly not necessary to the litigation but rather to investigate every aspect of Plaintiffs’ activities throughout 3ABN’s existence for purposes of reporting negative information to the public.

Magistrate Judge Hillman put a stop to Defendants’ indiscriminate use of
discovery tools to satisfy their journalistic curiosity about the Plaintiffs when he nullified their document requests and ordered them to obtain leave of the Court before using third party subpoenas. (Doc. 106). Judge Hillman concluded that “Pickle’s production requests and Rule 45 subpoenas appear to be overbroad and far-reaching.” (ECF Doc. 106 at p. 2). He therefore ordered them to serve new document requests “tailored to comply with this Court’s rules governing discoverable information.” (Id. at p. 4). He ordered that they henceforth submit third party subpoenas to the Court for preapproval. (Id.) In other words, Judge Hillman agreed with the Plaintiffs’ position that the Defendants were seeking information well beyond even the liberal boundaries of permissible discovery.

For the reasons set forth in their motion for voluntary dismissal and the
accompanying legal memorandum (ECF Doc. 120 & 121), Plaintiffs made the decision to dismiss the lawsuit. The primary reasons were that the goals of the lawsuit had been met by means outside the lawsuit, namely by purchasing the offending web sites from Defendant Joy’s bankruptcy trustee and by obtaining favorable rulings from the governmental agencies that had been investigating the Plaintiffs’ conduct. (See Affidavit of Walt Thompson ¶ 8, Doc. 123). It had been apparent from the start that the Defendants would be unable to pay any appreciable damage award, and the desire for an award of money damages had never been a significant motivation for the lawsuit. When it became apparent that the Defendants’ incessant badmouthing of the Plaintiffs had ceased to be a major concern within Plaintiffs’ community, and donations were restored,
it became obvious that nothing more could be gained by way of this lawsuit. Plaintiffs then moved to dismiss it.

Defendants opposed the motion to dismiss the lawsuit on the grounds that it was
merely an “attempt to obstruct discovery.” (Defendants Mem. in Opp. to Plaintiffs Mot. for Voluntary Dismissal, p. 1, Doc. 126). In reviewing their opposition memo, it is clear that Defendants did not want the litigation to end because they had not yet received the information they hoped to obtain via discovery. They were refreshingly oblivious to the fact that they would not need the information once the lawsuit was over, apparently unaware that pressing their demands for the discovery information after the suit was over
proved beyond doubt that their true motive for seeking the information was unrelated to the litigation.

On October 30, 2008, this Court heard Plaintiffs’ motion for voluntary dismissal.
The rule authorizing voluntary dismissal permits the Court in its discretion to impose conditions that it deems necessary to avert legal prejudice to the Defendants arising from the dismissal. See Fed. R. Civ. P. 41(a)(2). A discussion ensued regarding what conditions would be necessary to avert prejudice to the Defendants from the dismissal.

The only legal prejudice that Defendants identified was the possibility that the Plaintiffs would refile the litigation in another forum. The Court addressed this issue by conditioning the dismissal on the Plaintiffs’ agreement to refile any related litigation only in the same Court. Plaintiffs readily agreed to that stipulation, since forum shopping was the last thing on their mind.

Discussion also occurred on the issue of whether dismissal should be with or
without prejudice. The Court heard argument that despite its chronological age of more than a year, the progress of the case had been delayed by Defendant Joy’s bankruptcy and by several motions regarding discovery such that it was still in the document discovery phase. Since no dispositive or substantive motions had been heard or filed, and no counterclaims were on file, in the exercise of its discretion the Court dismissed the case without prejudice.

The significance of the dismissal without prejudice was twofold: (1) it meant that there would be no award of costs under Fed. R. Civ. P. 54(d) because there was no prevailing party; and (2) it meant that if the Defendants commenced a suit against the Plaintiffs, as they often have threatened to do since the lawsuit started, Plaintiffs would be able to resurrect their claims defensively or as counterclaims because the claims would not be res judicata.

Defendants then brought up the issue of their litigation costs. The Court verbally advised the parties that the Defendants may file a motion for costs, that the Plaintiffs would have an opportunity to respond to it, and that costs might or might not be awarded.

The Court advised the parties that its allowance of a motion for costs did not indicate that it had determined costs were awardable. Notably, the Court did not authorize a motion for reimbursement of attorneys’ fees and general litigation expenses. The order that ensued stated that “any motion for costs … be filed by 11/21/2008.” [Electronic Clerk’s Notes for Proceeding entered on 10/31/2008].

On November 13, 2008, the Defendants filed the present motion ostensibly for
“costs,” but in substance seeking recovery of $110,000 of claimed expenses which are clearly not recoverable as costs. Half of the claimed amount is for attorneys fees; $20,000 is for an undisclosed expert whose services were never used in any court filing; and $30,000 is for Defendant Pickle’s “cost of time.” None of the items claimed would qualify as costs under 28 U.S.C. § 1920.

Not only are the claimed expenses not recoverable because they are not necessary to avert legal prejudice to the Defendants arising from the dismissal and are not “costs,” there is insufficient justification provided to determine whether the amounts claimed are justified – that is, whether the expenses were reasonable and necessary. The entire claim must be rejected for these reasons.