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July 12, 2006: Anti-SLAPP motions

In mid-May 2006, Katzer and Russell filed several motions to dismiss parts of the complaint. In particular, Katzer filed a motion to dismiss the libel claims under the California anti-SLAPP law, and Russell filed motions to dismiss claims under the anti-SLAPP law and for the procedural reasons of lack of personal jurisdiction and failure to state a claim.

The California anti-SLAPP law is intended to protect people who make comments about issues of public interest, or as part of official government proceedings. It was not originally intended to protect corporate wrong-doers, though it's being used that way more and more. It's particularly dangerous for JMRI, because it automatically requires that, if a suit is struck down due to the anti-SLAPP law, the defendants (in this case Matt Katzer, KAM and/or Kevin Russell) get their legal costs reimbursed by the plaintiff (Bob Jacobsen).

In their motions and associated declarations, they make some pretty unbelievable claims. For example, Katzer in his declaration refers to the Department of Energy's "apparent sponsorship of the java model railroad interface (sic) (JMRI) project". He then argues that his "reasonable" belief was based on:

  • Two papers (which he misrepresents) where the National Science Foundation (not the Department of Energy or LBL) has provided money for a college to use model trains in teaching real-time programming and communications.
  • "Notice of the formation of JMRI on DOE or other official letterhead" that he said he "believed" he saw on the JMRIusers discussion group in January or February 2004. Setting aside that JMRI had existed for years before the date he here claimed it was "formed", both Yahoo and Internet Archive show no indication of such "notice" ever existed. The statement is a complete fabrication.
  • Bob Jacobsen's emails and posting which Katzer misrepresented as "documents promoting JMRI", "including a request for funding".
Katzer then claims that:
"It was not the purpose of the FOIA request to embarrass Jacobsen with his employer, as alleged in the complaint. At the time of sending the FOIA request, I had no knowledge of Jacobsen's employment status, either with the DOE or any other employer. At the time of sending the FOIA request, I assumed that Jacobsen worked for the University of California at Berkeley based on a representation Jacobsen made to a model train internet newsgroup in 2001."
Note that the third sentence contradicts the second in that paragraph. It's simply unbelievable that Katzer didn't think Bob worked for LBL, given that Katzer was already aware of Bob's use of an LBL email address. They had even had several direct email exchanges in the past.

Still, given the structure of the California anti-SLAPP law and that Katzer is willing to lie to the court, it's going to take a very large amount of effort to defeat these motions. We'll be submitting replies, which will be available from the documents page once they're in.

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