In the latest development surrounding the ongoing tortious interference and defamation lawsuit filed by Jawbreakers creator Richard C. Meyer against comic book industry veteran Mark Waid , Waid’s legal team has filed a motion attempting to have the case dismissed based on a lack of jurisdiction.
On April 22nd, Waid’s legal team, consisting of Attorneys Beverly Reeves, Mark Zaid, and Ryan Pierce, filed a “Defendant’s Reply to Plantiff’s Response to Motion to Dismiss for Lack of Jurisdiction.” In this filing, Waid’s team argues that Meyer’s lawsuit should be dismissed due to various technicalities regarding Meyers’ location:
“Defendant Mark Waid (“Waid”) files this Reply to Plaintiff’s Response to the Motion to Dismiss for Lack of Personal Jurisdiction (Dkt.#23)(the “Response”). Jurisdictional discovery has only confirmed the Court lacks personal jurisdiction over Waid. Among other things, Plaintiff, who publicly advertised he was in New York, neither shows nor even pleads Waid knew that Plaintiff resided in Texas, thus conclusively defeating jurisdiction as to both claims. Additionally, even this limited discovery revealed the substantive emptiness of Plaintiff’s accusations.”
The motion’s main argument is that a Texas court holds no jurisdiction over Mark Waid, primarily due to the fact that Waid was allegedly unaware of both Meyers’ and Antarctic Press’ locations. To this end, Waid’s legal team put forth three lines of reasoning to support their claim. The first, was that Meyer had failed to establish personal jurisdiction:
“Plaintiff’s inability to show Waid knew Plaintiff resided in Texas by itself requires dismissal of his tortious-interference claim, whether or not Waid knew about AP’s location. Beyond that, however, Plaintiff has no evidence Waid knew AP’s location at the time of the calls. Furthermore, even if Waid knew either Plaintiff or AP were in Texas at the time of the calls (which he did not), the larger context—the publication of a book that has nothing to do with Texas and a larger political debate about diversity in comics, which has no specific aim at Texas—still shows jurisdiction is not proper.”
Though Waid claims to have had no knowledge that Antarctic Press is located in Texas, he admits to having called a number with a Texas-based area code (210). Waid’s team cites Michana Easy Livin’ as precedent ruling that telephone communications are not a strong indicator of a person’s location due to evolving technologies (such as mobile phones), but Antarctic Press publisher Joeming Dunn stated that the only office number Antarctic Press had at the time was a landline (which does not allow for roaming). It is also noted within the Michana Easy Livin ruling that:
“while the seller’s sole telephonic contact with Texas fell short of purposeful availment, the supreme court’s use of the modifier “necessarily” in its disapproval of “opinions holding that . . . specific jurisdiction is necessarily established by allegations or evidence that a nonresident committed a tort in a telephone call from a Texas number” suggests that telephonic contact may rise to the level of purposeful availment in different circumstances.
It is also curious to note that, Waid’s legal team apparently believes that because Jawbreakers does not feature Texas as a location, nor does the larger discussion regarding diversity in comics, there are no grounds for the lawsuit to be tried in Texas.
The second, is that Meyer is wholly unable to establish personal jurisdiction due to Meyer’s claims of defamation solely citing Waid’s social media conduct and not Waid’s statements at Houston’s Comicpalooza convention:
“Plaintiff entirely hangs his case for jurisdiction over the defamation claim on Waid’s statements at a convention in Houston occurring after AP’s decision to not publish JAWBREAKERS. See Response at 13-14. But Plaintiff’s own Complaint pleads that his defamation claim stems from statements allegedly made “[t]hrough [Waid’s] various social media accounts.” Compl. ¶ 24. It makes sense Plaintiff would not base any defamation claim on Waid’s statements in Houston, because those statements occurred after AP’s decision to not publish JAWBREAKERS.”
“As Plaintiff’s own pleading shows, Waid’s statements in Houston are not the basis of Plaintiff’s defamation claim—thus leaving only the alleged “social media” statements.
Furthermore, even if Waid’s statements in Houston were relevant (which they are not), it remains the case Waid did not know Plaintiff was located in Texas until this lawsuit was filed (see Dkt. #10-1, ¶ 9; Ex.11, Waid Depo. 77:13-16), which would still defeat jurisdiction.”
However, according to lawyer Nick Rekieta, host of the Rekieta Law YouTube Channel, a judge would not throw out a case on these grounds, but would instead ask for an amended complaint.
Rekieta explains:
“Here’s the thing. Texas is a notice-pleading state. We’ve got jurisdictional discovery to specifically determine jurisdiction. So, they’re going to go ahead and argue now, listen to what their argument is, alright? Their argument is ‘They plead this. We challenge jurisdiction. We both agreed to jurisdictional discovery, but now we don’t want to use the discovery to talk about the pleading.’ That’s it. At worst case, the judge will just simply allow them to amend their pleading. That’s how that goes. If anything, the judge just says “Okay, well, file an amended complaint. File an amended complaint which addresses the deficient jurisdictional issue of not pleading specifically about the defamatory statements made in Houston.”
In their final point, Waid’s legal team argues that the lawsuit is a “baseless publicity stunt” due to their claims that Antarctic Press dropped Jawbreakers independently from any influence from Waid:
“Plaintiff spends much of his Response mischaracterizing the facts in his attempt to pursue this lawsuit in Texas. Because Plaintiff’s jurisdictional arguments are intertwined with his various assertions about the merits, Waid feels compelled to correct the misleading picture Plaintiff tries to paint. For example, Plaintiff’s Response asserts that, “[a]t its base, this is a tortious interference case,” and then repeatedly suggests—tellingly without evidentiary support—that Waid caused AP to not publish Plaintiff’s book. Response at1, 12-13. Discovery not only highlighted the lack of jurisdiction, it further revealed this lawsuit to be a baseless publicity stunt.”
Not only is it clear Waid did not tortiously interfere or otherwise cause Plaintiff harm, Plaintiff’s lawsuitis baseless for other reasons. As noted above, Plaintiff never signed the proposed contract, and even if there were a contract, AP had the discretion to decide against publishing JAWBREAKERS—thus defeating any necessary breach.
To their end, Waid’s team provides evidence in support of their claim that Meyer was personally responsible for Jawbreakers being dropped by Antarctic Press. The evidence cited includes Meyer’s exposure of a private Facebook group conspiring to boycott Jawbreakers, and two statements provided by Dunn during his deposition (it should be noted that the deposition made publicly available is not Dunn’s full testimony, as pages have been omitted before publication). The first is Dunn’s admission that the decision to drop Jawbreakers was allegedly made before Waid contacted the publisher:
Q:And so, again, there were factors that led to Antarctic Press’s decision that had no relationship to Mark Waid; correct?
A:Yes.
Q:And those factors were concern that your staff and freelancers had expressed; correct?
A:Correct.
Q:And including Mr. Meyer’s own conduct; correct?
A:Correct.
Q:And those factors that led to AP’s decision are factors unrelated to Mark Waid; correct?
A:Correct.
[…]
Q:Did –you made the decision for Antarctic Press; correct?
A:Correct.
Q:And that was your decision; correct?
A:100 percent.
Q:And you made that decision voluntarily?
A: Correct.
Q:And Mark Waid, did he do anything to prevent AP from publishing Mr. Meyer’s book?
A:No.
The second is Dunn’s statement that Meyers never signed his contract with Antarctic Press, thus absolving Waid of any interference in the contract:
Q: Was – – was there an actual written contract between Antarctic Press and Mr. Meyer?
A: My recollection was I sent a copy of a contract to Brian [Denham] to send to Mr. Meyer, but I never got a written signed contract returned.
Again, according to Rekieta, Meyers’ behavior and the decisions made by Dunn may, unfortunately for Waid, ultimately be irrelevant to the actual lawsuit:
“It doesn’t matter if they had already decided to not publish the book, but hadn’t cancelled it yet. It doesn’t matter if they had the right to cancel the book under the contract, as long as they hadn’t cancelled it yet. All that matters is, regardless of what the breaching party says, was there an interfering person who made an action that a reasonable person would conclude interfered with the contract?”
Following the publication of these documents, Waid would provide his fans with a personal update regarding the lawsuit (the full statement of which can be read on his Facebook page) whilst simultaneously pointing to Dunn’s deposition as proof that any and all supporters of Meyer were ‘willfully lying’:
“The Publisher who I allegedly “threatened” and “coerced” was deposed last month and gave 𝙝𝙞𝙨 testimony, under oath. Here’s a link to our recent Court filing that allows you to read that testimony in greater context–I encourage you to–but let’s cut right to the heart of it. These, emphasis added, are the Publisher’s actual statements regarding the unendingly repeated allegation that I somehow “muscled” him, statements made under threat of perjury:
[Here, Waid shares the transcripts from Dunn previously noted in this article]
This, finally, publicly validates everything both I and the Publisher have said to anyone who would listen. Again, under oath, completely contradicting the Plaintiff’s claims, the Publisher swore to the Court that I did nothing to prevent him from publishing the Plaintiff’s book. There’s no “however” following his statement. There’s no “but…” Go read the actual deposition. It reveals the actual factors that contributed to his decision, none of which, as he has now attested, involve me. The actual factors include damning correspondence (from before my alleged “interference”) from AP’s own editor-in-chief–a “good friend, almost family”–telling the Publisher he did not want AP associated with Plaintiff because of the Plaintiff’s own conduct or else the EIC would want his name removed from all of AP’s books. Don’t have time to read the deposition? It’s all nicely summarized in my lawyers’ very enlightening reply to the Plaintiff’s most recent claims. Enjoy
[…]
As is abundantly clear from the Publisher’s own statements made under oath, from this point on, with the truth made clear as day, if any of the Plaintiff’s followers try to tell you that I did anything wrong that in any way justifies Plaintiff’s lawsuit, they are willfully lying to you.
They are willfully lying to you in order to paint themselves as victims.
They are willfully lying to you in order to keep you contributing to their crowdfunding efforts.
They are willfully lying to you in order to claim some sort of moral high ground that they believe makes it honorable to spew hateful, disgusting abuse that mocks and condemns women, people of color, LGBTQ+ people, and others.
Remember that. Remind others of it. If they try to lie to you, present the facts. If they try to gaslight you, hammer them with the facts. Throw the Publisher’s statement in their face. Keep doing it, because there is no better way to show the world that they willfully lie to you and others for their own gain.”
What do you make of Mark Waid’s motion to dismiss? What do you think about Mark Waid’s comments following the motion to dismiss?