FILED
MAR 25 l986
CA 1125-86

WILLIAM THOMAS Plaintiff Pro Se)
White House Antinuclear Vigil, )
Peace Park Antinuclear Vigil, )
Plaintiffs )

-versus-

WASHINGTON TIMES,
Bo Hi Pak, Arnaud de Borchgrave,)
Defendants.

OPPOSITION TO DEFINDANT'S MOTION TO DISMISS
AND TO QUASH SERVICE OF PROCESS

Counsel purports that service of process was not effected in accordance with Rule 4. See Defendant's Motion to Dismiss and to Quash Service of Process, filed March 12, 1986 ("DMD").

First, defendants note that plaintiff ("Thomas") has sued the Washington Times, Inc. ("TIMES") and that no such corporation exists, and notes that Thomas has identified Mr. Pak and Mr. de Dorchgrave as affiliate agents of the defendant TIMES. (DMD Memo p. 1.)

A. Sufficiency of Service of Process

Rule 4 (c) (ii) "Service": "By mailing a copy of the summons and Complaint to the persons to be served by registered or certified mail, return receipt requested." (Exhibit A,- 'this Memo.)

Rule 9(a)' "It is not necessary to aver the capacity of a party ... to be sued or the authority ... in a representative capacity or the legal existence of an organized association of persons that is made a party except to the extent required to show the jurisdiction of the Court."

Defendants note that the corporate entity which publishes the TIMES is News World Communications, Inc.,

Thomas hereby certifies that, pursuant to Rule 4(c)(ii), he has served upon that registered agent a copy of the Complaint, and a Summons, by certified mail.

Under the Opposition heading (DMD Memo at 3), counsel cites generally Rosen and Associates. Inc. v. Hurwitz, 465 A2d 1114 (DCApp 1983,

In that case the Court reversed not because "a receptionist ... is not necessarily authorized to accept service of process," as it might appear defendants suggest. Rather judgment in that matter revolved upon the principle that'

"Even if trial court was correct in striking defendants' Motions to Quash Service of Process ... trial court could not enter a default judgment against those defendants.... Entry of a judgment for damages ... without a hearing, was error...." (ibid. at 1115)

Apologia: Thomas, seeking to be an honest man, is therefore poor. Rightly he has been given leave by this Court to proceed in forma pauperis and cannot afford a process server. Additionally the U.S. Marshall's Service is under a heavy case load, and Thomas would submit Rule 4(c)(ii) provides a simple but efficient method of service, which to the best of Thomas' knowledge he has utilized to facilitate an expeditious litigation of this matter. See Haines v. Kerner, 404 US 519 (1972). Moreover, recent decisions in the Federal Appeals Court in this District have reaffirmed the jurisprudential tradition of any civilized democracy that "meaningful access to the courts" shall not be denied for reasons of indigency, or otherwise financially incapacitate individuals. See Sills v. Bureau of Prisons' USDC App (1984)

B. Plaintiff has stated a substantial claim

1. "extreme and outrageous" conduct on the part of defendants by means of their newspaper, the Washington TIMES,

(a) to "further the purpose or attempting to justify and aggrandize defendants' political opposition to plaintiffs' highprofile 24-hour year around antinuclear vigil ... in Lafayette Park under duly approved PERMIT of the US (National Park service)" (Complaint pare. 4):

(b) "Defendants' agent Steve Masty and several unknown individuals from a group calling itself Young Americans for Freedom (now YAF) had a meeting of the minds and decided to conduct a 'raid' on plaintiffs and their property," (ibid. pare. 5):

(c) "The Washington Times virtually 'cooked up' a story by sending Masty to report on and(/or) participate in an assault on the plaintiffs and their property as abovesaid, and to distribute to the public an intentional wrongful, malicious, libelous, and defamatory

representation of that morning's (July 4, 1985) events.

"Allegedly libelous matter is defamatory' not only if it brings a party into hatred, contempt, or ridicule by asserting some moral discredit on his part, but also if it tends to make him be shunned or avoided, or deprived of the friendly association of a considerable number of respectable members of the community, though it imputes no moral terpitude to him." Brown v. DuFrey, 134 NE 2d 469, 472-474: 1 NY2d 190.

d. Incorporating pare. a, b and c, plaintiff claims he was irreparably damaged in his right to expression through damage to his signs.

e. Incorporating d, plaintiffs claim their property was damaged.

f. Incorporating a, b, c, d and e plaintiff claims to have suffered intentional infliction of emotional injury.

2. This is not, by any means, the only occasion upon which the TIMES has acted "intentionally or recklessly" to distort the truth with respect to what they should have known to be activity considered essential to a democratic society, and protected by United States statute, and NPS permit.

(a) Defendants have falsely, maliciously, intentionally, and libelously represented Thomas and/or his legal activities as "childish willfulness," "delusions of the insane," "vague gibberish," and "the screwball left." In publishing this willful misrepresentation defendants have published a false image of Thomas as a "bum," causing him alienation from a substantial portion of the populace, and condoning and encouraging a "continuous menace to their lives and well-being in pursuit of their lawfully permitted activities" which has directly and proximately caused Thomas to suffer the infliction of emotional distress.

(b) Further, the TIMES has published other material with bearing on this case not attached to the Complaint

(c) Incorporating (a) and (b) supra, Thomas avers that the aforesaid has combined to disrupt, demean, and interfere with his chosen profession of communicating a message of broad public concern to Thomas' irreparable injury.

3. Citing Restatement (2d] of Torts (1965) Section 46 at 73 (DND at 5), counsel correctly states that defendants' liability rest upon whether conduct is "...utterly intolerable in a civilized society.

"The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in DeJonge v. Oregon, 299 US 165, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.... Accordingly a function of free speech under our system of government is to invite dispute. It may well serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudice and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech ... is ... protected ... unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.... There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by ... dominant political or community groups." Terminiello v. Chicago, 337 US 4, 5 (1948).

4. Counsel fails to note that Restatement (2d) of Torts Section 46 makes certain other representations, e.g.:

"The law is still in a stage of development, and the ultimate limits of this tort are not yet determined. (See also Magruder, Mental and Emotional Disturbance in the Law of Torts 47 Harvard Law Review 1033, 1053 (1938)."

5. Even assuming, arguendo, that defendants' public allegations with respect to plaintiffs' sanity were true, they would still be liable for malicious misrepresentations which resulted in plaintiffs' emotional distress'

"A, an eccentric and mentally deficient old maid, has the delusion that a pot of gold is buried in her back yard, and is always digging for it. Knowing this, buries a pot with other contents in her yard, and when A digs it up, causes her to be escorted in triumph to the City Hall, where the pot is opened under circumstances of public humiliation to A. A suffers severe emotional disturbance and resulting illness. B is subject to liability to A for both." (Restatement (2d) of Torts, Section 46 at 75.)

A knows that B, a Pennsylvania Dutch farmer, is extremely supersitious and believes in witchcraft, In order to force B to sell his farm A goes through the ritual of putting a "hex" on the farm, causing to believe it is bewitched so that crops will not grow on it. B suffers severe emotional distress and resulting illness. A is subject to liability to B for both." (Ibid. at 75, 76.) --

6. Counel cites Walden v. Covington (DMD Memo at 5): an action which had been dismissed against the widow of a decedent plaintiff who had sought to assume the litigation upon his demise. The Court dismissed upon the rationale that' "the deceased bore the pain and suffering and he is the only one who should be compensated. He can't take it with him." (Ibid. at 1075)

Notwithstanding, Walden v. Covington affirms the decisions in Wilkinson v. Downton, 2 QBD 57 (1897), Nickerson v. Hodges,

146 La. 735 84 So. 37 (1920), Bielitski v. Obadiak, 15 Sask. 153, 65 DLR 627 (1922), and Great Atlantic and Pacific Tea Co, v. Roch, 160 MD. 189, 153 A. 22 (1931), et al.

"The actor's lack of privilege of 'just cause or excuse' is another element that must be assessed in determining whether his acts are so outrageous that harmful intent can be presumed." Walden v. Covington 415 A. 2d 1077. See also Clark v. Retail Credit Men, 70 App D.C. 187-88, et al.

7. Erroneously counsel states "(p)laintiff made no effort to describe the actions which they claim constituted a 'raid.'" (DMD Memo at 4) While the article (DMD Memo exhibit A) speaks for itself, plaintiff alleges that it contains intentionally false, libelous, defamatory material, but mainly that the Washington TIMES "cooked up" or acted in furtherance of a "media event" to create a vehicle through which to push the very IDEA of Masty's story' namely that plaintiff was a "screwball" or "leftist."

"The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other which gives him actual or apparent authority over the other, or power to affect the interests." (Restatement (2 of Torts, Section 48 at 80.)

Defendants' ability to disseminate to a broad spectrum of the public an intentionally defamatory image of plaintiffs' activities would certainly seem a "power to affect his interests."

"A common carrier or other public utility is subject to liability ... inflicted by the utility's servants while otherwise acting within the scope of their employment." (Ibid. at 81.)

"The rule stated in this section goes further and makes such a defendant liable for conduct which falls short of extreme outrage." (Ibid.)

C. Plaintiffs state a succinct claim for civil conspiracy.

To support his claim, Thomas alleges seven underlying torts:

1. intentional infliction of emotional distress:

2. libel:

3. deprivation of association:

4. interference with chosen professional activities or religion / (politics?):

5. disruption and malicious defamation of plaintiffs' lawful activities with the intention to interrupt, interfere with, or terminate those activities:

6. damage to plaintiffs' property: and

7. incitement of public hatred, ridicule, and humiliation.

D. For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he,

1. does a tortious act in concert with the other or pursuant to a common design with him (Halberstam v. Welch, 705 F2d 477), or

2. "knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other as to conduct himself" (ibid.), or

3. "gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person" (ibid.):

4. "in sum, we expect that the relationships between the actors and the actions (e.g. the proximity in time and place of the acts, and the duration of the actors' joint activity) are relevant in inferring an agreement in a civil conspiracy action. There may well be other significant factors in individual cases." (Ibid. 481)

5. "Suggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority." (Ibid.)

The "seed" of Masty's article bears fruit after the fact, feeding the insanity of those who would seek to enforce their will on the innocent through force and violence.

PLAINTIFF STANDS READY TO AMEND HIS COMPLAINT UPON REQUEST.

Upon consideration on of the foregoing, any opposition thereto, and the Amended Complaint filed herewith, plaintiffs move this Court to moot defendants' "Motion to Dismiss and to Quash Service of Process."

Respectfully submitted,

/s/W.Thomas
William Thomas,
Plaintiff Pro Se
1440 N Street NW #410
Washington, DC 20005
(202) 462-3542

BY MAIL

I hereby certify that a true and correct copy of the foregoing was sent, certified mail, to the defendants at the following lowing addresses:

John P. Brown, Registered Agent,
News World Communications, Inc.
3600 New York Avenue NE
Washington PC 20002

Allen V. Farber and Luncinda J. Bach Schwalb, Donnenfeld, Bray & Silbert 1025 Thomas Jefferson St. NW Suite 300 East Washington, DC 20007 (Counsel for Defendants)

This 24^th day of March 1986

/s/ W. Thomas
William Thomas, Plaintiff Pro Se
1440 N treet NW #410
Washington DC 20005
(202) 462-3542

I hereby certify that all attachments to the Amended Complaint and Memorandum of Points and Authorities in Support of Plaintiffs' Amended Complaint are true and unaltered photocopies of originals in plaintiffs' possession.

/s/ W. Thomas
William am Thomas Paintiff Pro Se