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Old October 1st 09, 11:52 PM posted to rec.games.chess.politics,re.games.chess.misc,alt.chess
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Default Jim Berry's Motion for Summary Judgment

DEFENDANT JIM BERRY’S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

JIM BERRY, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY AS MEMBER OF
THE EXECUTIVE BOARD OF THE UNITED STATES OF AMERICA CHESS FEDERATION,
files this Motion for Summary Judgment, pursuant to FEDERAL RULE OF
CIVIL PROCEDURE 56, and requests this Court to enter an order as a
matter of law that Plaintiff take nothing. In compliance with Local Rule
56.3(b), the citations to the appendix required by Local Rule 56.3
(a)(3) are set forth in the Brief in Support of Defendant’s Motion for
Summary Judgment.

I. SUMMARY

1. Plaintiff has brought claims against Defendant Berry for defamation,
including slander, libel, and slander per se; business disparagement;
tortious interference with contracts and business relationships; civil
conspiracy; abuse of process; and malicious prosecution. Plaintiff seeks
to recover in excess of $10,000,000.00 plus her attorney’s fees and
exemplary damages.

2. Defendant Berry is entitled to judgment as a matter of law with
regard to all of the Plaintiff’s claims against him. Tens of thousands
of documents have been exchanged between the parties in discovery, and
the Plaintiff’s deposition has been taken. Yet, Plaintiff has failed to
provide any evidence to support any of her claims against Defendant
Berry. To the contrary, Plaintiff has admitted in her deposition that
Defendant Berry has not defamed or disparaged her or otherwise caused
her any harm. Therefore, summary judgment is proper on all of
Plaintiff’s claims against Defendant Berry.

3. Defendant Berry’s Individual Liability: Initially, Defendant would
show that Defendant Berry cannot be held liable to the Plaintiff in any
manner in his individual capacity. Plaintiff has sued Defendant Berry in
his individual capacity as well as his capacity as a board member of the
USCF. However, Plaintiff has admitted that every wrongful act allegedly
committed by Defendant Berry was performed in his capacity as a board
member and not in his individual capacity. Consequently, all of the
Plaintiff’s claims against Defendant Berry in his individual capacity
are without merit and should be dismissed on summary judgment.

4. Defamation Claims: To establish a defamation claim, a plaintiff must
demonstrate: (1) the defendant published a factual statement; (2) that
was capable of defamatory meaning; (3) concerning the plaintiff; (4)
while acting with either negligence, if the plaintiff is a private
individual, or actual malice, if the plaintiff is a public figure or
public official, concerning the truth of the statement. Defamation is a
general term that takes two forms: slander and libel. Slander is a
defamatory statement that is orally communicated or published to a third
person without a legal excuse. Libel is defamation expressed in written
form. To be considered slander per se, a defamatory statement must fall
into one of four categories: (1) imputation of the commission of a
crime; (2) imputation of the contraction of a loathsome disease; (3)
causation of injury to a person’s office, business, profession, or
calling; or (4) imputation of sexual misconduct.

In this case, Plaintiff has admitted in her deposition that Defendant
Berry authored no written statement and made no oral communication which
defamed her, and Defendant Berry confirms as much in his affidavit.
Furthermore, Plaintiff has produced no evidence otherwise in this
litigation to support her defamation claims against Defendant Berry.
Additionally, as a public figure, Plaintiff must show that Defendant
Berry acted with malice, which she cannot show, and which Defendant
Berry has affirmatively denied. Accordingly, Defendant is entitled to
judgment as a matter of law with regard to Plaintiff’s claims for
defamation, libel, slander, and slander per se.

5. Business Disparagement: The elements of a business disparagement
claim a
(1) publication of disparaging words by the defendant, (2) falsity, (3)
malice, (4) lack of privilege, and (5) special damages. Because
Plaintiff has admitted that Defendant Berry made no oral or written
statements which have disparaged her, and because she cannot demonstrate
malice, she cannot prove the necessary elements of a claim for business
disparagement. Furthermore, there is no evidence otherwise to support
any claim for business disparagement in this litigation. As a result,
Defendant Berry is entitled to judgment as a matter of law with regard
to Plaintiff’s claim for business disparagement.

6. Tortious Interference With Contracts and Business Relationships: The
elements of a cause of action for tortious interference with a contract
a (1) the existence of a contract subject to interference, (2) the
occurrence of an act of interference that was wilful and intentional,
(3) the act was a proximate cause of the plaintiff’s damage, and (4)
actual damage or loss occurred. The elements of a claim for tortious
interference with a prospective business relationship a (1) a
reasonable probability that the parties would have entered into a
business relationship; (2) an independently tortious or unlawful act by
the defendant that prevented the relationship from occurring; (3) the
defendant having acted with a conscious desire to prevent the
relationship from occurring or having known the interference was certain
or substantially certain to occur as a result of defendant’s conduct;
and (4) the plaintiff having suffered actual harm or damages as a result
of the defendant’s interference.

In this case, Plaintiff can produce no evidence to establish any of the
elements of either cause of action. Importantly, there is no evidence
that Defendant Berry committed any willfull or intentional act which
interfered with a contractual or potential business relationship of the
Plaintiff. Defendant Berry states in his affidavit that he is not aware
of any of the Plaintiff’s business dealings or potential contracts and
could not have interfered with them. Accordingly, Defendant Berry is
entitled to summary judgment with regard to these claims.

7. Civil Conspiracy: Texas law defines a civil conspiracy as “a
combination by two or more persons to accomplish an unlawful purpose or
to accomplish a lawful purpose by unlawful means.” Thus, the elements of
civil conspiracy a (1) two or more persons; (2) an object to be
accomplished; (3) a meeting of the minds on the object or course of
action; (4) one or more unlawful, overt acts; and (5) damages as the
proximate result.” Civil conspiracy requires specific intent. For a
civil conspiracy to arise, the parties must be aware of the harm or the
wrongful conduct at the beginning of the combination or agreement.

First, Plaintiff cannot establish the elements of her claim for civil
conspiracy because she cannot show that Defendant Berry participated in
any “meeting of the minds” to accomplish an unlawful act. There is no
evidence that anything Defendant Berry participated in, whether it be a
board vote or otherwise, was unlawful or was achieved by unlawful means.
Accordingly, Defendant Berry is entitled to judgment as a matter of law
with regard to the Plaintiff’s claim of civil conspiracy.

Second, Plaintiff’s civil conspiracy claim fails because of the
“intracorporation conspiracy” defense. Plaintiff has admitted in her
deposition that every alleged wrongful act committed by Defendant Berry
against her has been done in his capacity as a board member of the USCF,
not in his individual capacity. Because the USCF and its board members
constitute a single entity which cannot conspire with itself, and
because Defendant Berry is not liable for any wrongdoing in his
individual capacity, he cannot be held liable for civil conspiracy.
Consequently, Plaintiff’s claim for civil conspiracy must fail, and
Defendant Berry is entitled to judgment as a matter of law.

8. Abuse of Process: The elements of an abuse of process claim a (1)
an illegal,
improper, or perverted use of process, neither warranted nor authorized
by the process, (2) an ulterior motive or purpose in exercising such
use, and (3) damages as a result of the illegal act. Defendant Berry has
caused no process to be served upon the Plaintiff whatsoever, and
Plaintiff can produce no evidence to the contrary. Accordingly,
Plaintiff’s claim in this respect must fail, and Defendant Berry is
entitled to summary judgment.

9. Malicious Prosecution: A plaintiff in a malicious prosecution case
must prove that: (1) a criminal prosecution was commenced against her,
(2) the defendant procured the criminal prosecution, (3) the prosecution
terminated in the plaintiff’s favor, (4) the plaintiff was innocent, (5)
probable cause was lacking, (6) the defendant acted maliciously in
filing the charge, and (7) the plaintiff was damaged. To Defendant
Berry’s knowledge, no criminal prosecution has been commenced against
the Plaintiff, and there is no evidence of such in this case.
Furthermore, Defendant Berry has not attempted to procure any criminal
investigation or prosecution against the Plaintiff and has filed no
charges against her, either maliciously or otherwise. Any criminal
investigation or potential prosecution of the Plaintiff has been made by
law enforcement and not at the request or assistance of Defendant Berry.
Additionally, Defendant Berry has brought no civil action against the
Plaintiff. For these reasons, Defendant Berry is entitled to summary
judgment with regard to the Plaintiff’s claim for malicious prosecution.

10. Exemplary Damages: Exemplary damages may be recovered in a
defamation case where the defamed party establishes the existence of a
willful or wanton act sufficient to support a finding of malice. In this
case, Plaintiff is not entitled to recover any exemplary damages in this
case because she cannot make out the elements of her defamation claim,
or any of her other claims. Furthermore, Plaintiff can produce no
evidence that any wrongful act allegedly committed by Defendant Berry
was committed with malice. Therefore, Plaintiff’s claim for exemplary
damages should be dismissed on summary judgment.

11. Federal Volunteer Protection Act
The Federal Volunteer Protection Act, 42 U.S.C. § 14503, provides that
no volunteer of a nonprofit organization can be held liable for harm
caused by the volunteer if the volunteer was acting within the scope of
his responsibility in the organization and such harm was not caused by
willful or criminal misconduct, gross negligence, or recklessness. In
this case, by Plaintiff’s own admission, Defendant Berry has been sued
solely for his actions in his capacity as a board member of the USCF, a
nonprofit organization. Accordingly, Defendant Berry cannot be held
liable for his actions in voting or otherwise acting as a board member
and volunteer of the USCF, and the Plaintiff’s claims against him are
barred by federal statute.

II. RELIEF REQUESTED

For these reasons, Defendant JIM BERRY, INDIVIDUALLY AND IN HIS
REPRESENTATIVE CAPACITY AS MEMBER OF THE EXECUTIVE BOARD OF THE UNITED
STATES OF AMERICA CHESS
FEDERATION, respectfully requests the following relief:

a. that this Court grant Defendant’s motion in its entirety, entering
summary judgment that Plaintiff take nothing against this Defendant;

b. that this Court award Defendant his costs incurred;

c. that this Court award such other and further relief to which
Defendant may show himself to be justly entitled.
Respectfully submitted,
/s/ Jeffrey B. Jones
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