Laurent Lamothe Requests Preliminary Injunction Against Haiti-Observateur

Case 1:12-cv-23300-UU Document 6 Entered on FLSD Docket 10/02/2012 Page 1 of 15
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 12-cv-23300 UNGARO/TORRES PATRICE BAKER, an individual and LAURENT LAMOTHE, an individual, Plaintiffs, v. HAITI-OBSERVATEUR GROUP, et al., Defendants. ___________________________________/ MOTION FOR PRELIMINARY INJUNCTION AND INCORPORATED MEMORANDUM OF LAW Plaintiffs, Patrice Baker (Baker) and Laurent Lamothe (Lamothe), move under Rule 65(a), Federal Rules of Civil Procedure, for a preliminary injunction with notice as to Defendants Haiti-Observateur Group (HOG) and Leo Joseph (Joseph) (together, Defendants) and in support state: I. INTRODUCTION Baker, a respected Haitian businessman, and Lamothe, a respected businessman and Prime Minister of Haiti, have come to learn that HOG and Joseph published, inter alia, on its internet site www.haiti-observateur.net (the Website) on August 15, 2012, an intentionally false and defamatory article accusing Baker and Lamothe of illegally orchestrating and profiting from the sale of the telecommunications company, Haitel, by and through their affiliations with the Haitian government. Baker and Lamothe immediately demanded a retraction. Instead, on September 5, 2012, HOG and Joseph published further false and scandalous statements attacking the personal and professional reputations of the Plaintiffs. As a result, it was necessary for Baker and Lamothe to file the instant suit. HOG and Joseph have escalated the libel; making statements that are tantamount to accusing Baker and Lamothe of criminal acts. More specifically, on September 18, 2012, HOG and Joseph used the Website to publish false statements that Lamothe and
1 PERLMAN, BAJANDAS, YEVOLI & ALBRIGHT, P.L. 200 South Andrews Avenue, Suite 600, Fort Lauderdale, Florida 33301 (954) 566-7117 1000 Brickell Avenue, Suite 600, Miami, Florida 33131 (305) 377-0086
Bakers companies are under investigation by U.S. federal authorities in connection with tax evasion and money laundering. It is clear that unless stopped, HOG and Joseph will continue to hide behind their newspaper as a mechanism to spread unfettered, false and malicious lies about Baker and Lamothe. The Plaintiffs seek this preliminary injunction to prevent further harm to their professional reputations and to prevent further interference with their business relationships. Florida permits injunctive relief in certain acute instances of defamation. See Murtagh v. Hurley, 40 So. 3d 62 (Fla.2d DCA 2010).
II. FACTS SUPPORTING THIS MOTION 1. This motion draws upon the affidavit of Plaintiff Baker (hereinafter Aff. Of
Baker). The Affidavit is attached hereto as Exhibit 1. 2. Baker is a prominent businessman, who conducts business in the Southern District
of Florida. Baker is known and recognized in the community and maintains a stellar reputation in the business and local community. See id. at 3. 3. Lamothe currently serves as the Prime Minister of Haiti and enjoys a stellar
reputation in the political and local community in which he serves and resides. As a result of the large Haitian population that resides in this District, Lamothes reputation is subject to offense and damage within the Southern District of Florida. See id. at 4. 4. Defendants HOG and Joseph operate, manage and publish a website under the
domain name of www.haiti-observateur.net (the Website). See id. at 5. 5. As a publisher of the information, articles and material of their Website,
Defendants know that the Website is frequently viewed, read, and understood in the Southern District of Florida. In fact, Defendants utilize a third-party service that tracks web traffic: ClustrMaps. A link to a ClustrMaps report appears on the homepage of the Website. Clicking that link from the Website reveals a report that boasts that from July 13, 2012 to September 7, 2012 the site tracked 2,025 viewers from Florida more than any other state/market. In comparison, only 819 views came from Haiti during this same period. Defendants known, primary market is the State of Florida. See id. at 6.
6.
The Website is not the only means of publication and distribution. Defendants
present the publication in printed form, as well, offering subscriptions to the publication by mail. The periodical and Website furnish contact addresses for print-subscriptions for consumers in, inter alia, the United States, Haiti, and Canada. See id. at 7. 7. Defendants intend for their Website to be read in Florida as this geographical area
contains a large Haitian and Creole-speaking community. See id. at 8. 8. Defendants original article is replete with statements that are outrageous,
scandalous and reminiscent of a tabloid publication. See id. at 11. 9. The Defendants statements included: a. The false and defamatory statement that Plaintiffs Lamothe and Baker are
orchestrating or have already profited from the sale of the telecommunications company, Haitel, by and through their affiliations with the Haitian government; b. The false and defamatory statement that the sale of Haitel, a Haitian
telecommunications company, was somehow controlled by Plaintiff Lamothe acting both in his official capacity and as an individual; c. The false and defamatory statement that Lamothe transferred and/or used
the center of Haitels operations to the Haitian consulate in New York in order to influence the sale of the company; d. The false and defamatory statement that Lamothe and Baker have acted as
broker-dealers for the sale of Haitel; e. The false and defamatory statement that through his connections with the
Haitian president, Lamothe arranged and fixed the price for Haitel to be sold at $25,000,000; f. The false and defamatory statement that Lamothe utilized the electoral
victory of Haitian president Michel Martelly to compel the sale of Haitel; g. The false and defamatory statement that Lamothe fixed the price of the
sale of Haitel and will benefit in the form of receiving the lions share of the proceeds; h. The false and defamatory statement that in his dealings relating to Haitel,
Lamothe disregarded the safeguards of the Haitian state and government; i. The false and defamatory statement that Lamothe exerted pressure on
Nord Citadel Capital LLC to begin issuing payments for the purchase of Haitel; and
j.
The false and defamatory statement that Lamothe is a partner of the firm
SOWCI which is purportedly gaining 14 cents on each minute of international call. See id. at 12. A certified translation of the August 15, 2012 article is attached hereto as Exhibit 2. 10. Defendants statements made in the Website and through its article are entirely
false and conjured to destroy the reputations of Baker and Lamothe. See id. at 13. 11. Plaintiffs, by and through counsel, issued a demand for a retraction to Defendants.
Defendants did not comply with the demand. See id. at 14. 12. The Defendants have refused to retract the statements or remove the published
articles from their internet site. See id. at 16. 13. Rather than retract the original article, Defendants, not satisfied with the harm
their original defamatory statements caused to the Plaintiffs, re-published and repeatedly emphasized the defamatory statements once again in a new article on September 5, 2012, for the purpose of destroying the public, private, and professional reputations of the Plaintiffs. See id. at 17. A certified translation of the September 5, 2012 article is attached hereto as Exhibit 3. 14. Due to HOG and Josephs refusal to remove the defamatory articles from their
website or to retract the story, the Plaintiffs instituted this lawsuit against HOG and Joseph. See id. at 20. 15. In response, HOG and Joseph published another article on September 23, 2012,
which not only repeated the lies and malicious statements set forth above, but now took it to a more harmful and malicious level, stating that the Plaintiffs companies are the subject of U.S. federal investigations into money laundering and tax evasion. See id. at 21. A certified translation of the article is attached hereto as Exhibit 4. 16. Defendants false and defamatory statements were published in electronic format
over the internet. The statements remain on Defendants Website and are continuously available to all viewers of the Website. See id. at 22. 17. Such statements are completely baseless and without truth and were made with
actual malice for the purpose of harming the Plaintiffs reputations. See id. at 23. 18. The statements published by Defendant about Baker and Lamothe as set forth
above are false and have degraded and injured, and continue to degrade and injure, the Plaintiffs,
their good names, their reputations, and their standing in their respective political and personal communities. See id. at 24. 19. The defamatory statements made by the Defendants set forth above are actionable
per se because the statements are facially defamatory and impute upon Baker and Lamothe conduct of illegal business practices, racketeering, corruption and a conspiracy among all parties. 20. Alternatively, the defamatory statements made and published by Defendants are
actionable per quod as the statements, when taken in context and the innuendo suggested by the statements, imply conduct that degrades and injures Plaintiffs, their good names, their reputations, their standing in the community, both personally and professionally, and exposes Plaintiffs to distrust, hatred, contempt and obloquy.
III. LEGAL ARGUMENT Baker and Lamothe seek a preliminary injunction to maintain the status quo or otherwise prevent Defendants from causing further damage to their reputations and political and business relationships while this litigation ensues.
A.
The Plaintiffs are entitled to injunctive relief. A plaintiff is entitled to a preliminary injunction if the plaintiff demonstrates that (1)
substantial likelihood of success on the merits exists, (2) a substantial threat of irreparable injury exists if an injunction does not issue, (3) the threatened injury to the plaintiffs outweighs any harm that might result to the defendants, and (4) the injunction, if issued, will not be adverse to the public interest. Intl Cosmetics Exch., Inc. v. Gapardis Health & Beauty, Inc., 303 F.3d 1242, 1246 (11th Cir. 2002). Under the substantive law of Florida, however, courts are reticent to permit injunctive relief for a sole claim of defamation. See Murtagh v. Hurley, 40 So. 3d 62, 65 (injunctive relief is unavailable to enjoin a person from making allegedly defamatory statements unless there are independent grounds for invoking equitable jurisdiction). But the court in Murtagh recognized an exception to this general rule, finding that an injunction may be a proper remedy in cases alleging interference with a present or prospective business relationship. In the exceptional case cited in Murtagh, the claimant stated a separate count, it seems, for intentional interference
with prospective business relationships against the defendants. Id. at 66-67 (citing Zimmerman v. D.C.A. at Welleby, Inc., 505 So. 2d 1371, 1376 (Fla. 4th DCA 1987)). The Zimmerman court entered limited, injunctive relief that retrained intentional interference, but refrained from enjoining future picketing and demonstration. 505 So. 2d at 1375-76. Murtagh required the movant to demonstrate a deleterious effect on his business in order to gain injunctive relief. 40 So.3d at 67. Here, Plaintiffs do not, at this juncture, assert a separate count for tortious interference with a business relationship. Moreover, Plaintiffs are not at liberty to plead a separate, standalone cause of action for injunctive relief. Unlike Florida state courts, the federal courts sitting in Florida do not recognize a cognizable, separate cause of action for injunctive relief. See Lorentz v. Sunshine Health Prods., Case No. 09-61529-CIV-MORENO, 2010 U.S. Dist. LEXIS 100985 *5 (S.D. Fla. Sept. 23, 2010) ([T]he Court finds this claim for injunctive relief is not, by itself, a cognizable cause of action.); Mobile Shelter Sys. USA v. Grate Pallet Solutions, LLC, 845 F. Supp. 2d 1241, 1261 n. 7 (M.D. Fla. 2012)(In Florida, there is no separate cause of action for injunctive relief. It is a remedy, not an independent cause of action.). Compare Weekley v. Pace Assembly Ministries, 671 So. 2d 220 (Fla. 1st DCA 1996) (setting forth elements [t]o state a cause of action for injunctive relief and reversing dismissal of count for injunctive relief); Alorda v. Sutton Place Homeowners Ass'n, 82 So. 3d 1077, 1080 (Fla. Dist. Ct. App. 2d Dist. 2012). Consequently, under the exception discussed in Murtagh and Zimmerman, Plaintiffs must make a showing of a deleterious effect on their business in order to meet their burden. Plaintiffs acknowledge that this motion seeks to apply the exception of Murtagh and Zimmerman to a new scenario, i.e., where movants have alleged and averred tortious interference with advantageous business relationships, but not utilized those allegations and evidence to support a separate cause of action for same. Plaintiffs acknowledge the novel application of this exception sought. 1. a. Plaintiffs are likely to succeed on the merits of this case. Elements of Defamation as Libel Per Se
A cause of action for defamation in Florida requires four elements: (1) defendant published a false statement, (2) about the plaintiff, (3) to a third party, and (4) the falsity of the statement caused injury to the plaintiff. Del Fuoco v. ONeill, Case No. 8:09-CV-1262-T6 PERLMAN, BAJANDAS, YEVOLI & ALBRIGHT, P.L. 200 South Andrews Avenue, Suite 600, Fort Lauderdale, Florida 33301 (954) 566-7117 1000 Brickell Avenue, Suite 600, Miami, Florida 33131 (305) 377-0086
27MAP, 2011 U.S. Dist. LEXIS 14607, *17 (M.D. Fla. Feb. 11, 2011) (citing Bass v. Rivera, 826 So. 2d 534, 535 (Fla. 2d DCA 2002). A false publication is actionable per se if the publication is such that its natural and proximate consequences necessarily caused injury to the plaintiff in his social, official and business relations of life. Id. (citing Wolfson v. Kirk, 273 So. 2d 774, 777 (Fla. 4th DCA 1973), rev. denied, 279 So. 2d 32 (Fla. 1973)). The Defendants have repeatedly engaged in libel per se with their publication of claims of criminal acts by the Plaintiffs. These false statements are actionable per se, and further proven injurious to the Plaintiffs business, trade, and profession. The false statements create an immediate harm to the Plaintiffs professional and business reputations, and are presumed to be harmful as a matter of law as slander per se. See Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 592 (1906), (with defamation per se the law presumes malice in their utterance making it unnecessary to prove express malice.) See also Layne v. Tribune Co., 108 Fla. 177, 146 So. 234, 239 (1933), (the injurious character of defamation per se is a fact of such common notoriety established by the general consent of men, that the courts must of necessity take judicial notice of its harmful effect.). Moreover, with respect to the exception to injunctive relief in defamation cases, Plaintiffs acknowledge they are effectively moving this Court to also find a substantial likelihood of success with respect to conduct that is tantamount to tortious interference with a business relationship. The elements of tortious interference with a business relationship are (1) the existence of a business relationship; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship. Ethan Allen v. Georgetown Manor, 647 So. 2d 812, 814 (Fla. 1994).
b.
Floridas Pre-Suit Notice Requirement was met.
Section 770.01, Florida Statutes (2012) governs the pre-suit demand for defamation actions, including those filed in federal court. Nelson v. Associated Press, Inc., 667 F.Supp. 1468, 1474 (S.D. Fla. 1987). Specifically, section 7701.01 states: Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander,
the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory. 770.01, Fla. Stat. (Lexis 2012). Section 770.01 applies to defamation actions against media defendants; that is, those who are engaged in the dissemination of news or other information various forms of media. Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So.2d 1376, 1380 (Fla. 4th DCA 1997) (applying pre-suit notice to assistant state attorney who wrote allegedly defamatory newspaper column). Under Florida law, statements made on the Internet are considered made on an other medium for purposes of the statute. Alvi Armani Med., Inc. v. Hennessey, 629 F.Supp.2d 1302, 1308 (S.D.Fla. 2008) (citations omitted). As a result, defamation claims premised upon the dissemination of information through Internet publications require pre-suit notice under section 770.01. Id. Plaintiffs averments demonstrate their efforts to make pre-suit demand on Defendants; such efforts met amplification of the defamatory statements. In any event, Plaintiffs meet the notice requirement of section 770.01. c. Plaintiffs averments show a likelihood of success.
Statements that falsely impute a criminal offense to another are actionable per se. Bobenhausen v. Cassat Ave. Mobile Homes, Inc., 344 So. 2d 279, 281 (Fla. 1st DCA 1977) (citing Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); Tip Top Grocery Co. v. Wellner, 135 Fla. 518, 186 So. 219 (1938)). More specifically, to constitute libel per se, the statements must, when considered alone without innuendo ... contain ... charges that a person has committed an infamous crime.... Del Fuoco, 2011 U.S. Dist. LEXIS 14607, **17-18 (internal quotation marks omitted) (quoting Adams v. News-Journal Corp., 84 So. 2d 549, 551 (Fla. 1955)). See also Spencer v. Kemna, 523 U.S. 1, 25 (U.S. 1998) (Imputing criminal behavior to an individual is generally considered defamatory per se se, and actionable without proof of special damages) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50 (1974)). Defendants made actionable statements that constitute libel, per se. As averred in the pleadings here, which were attested in the Affidavit of Baker, HOG and Joseph made false
statements attacking the business and professional reputation of the Plaintiffs. In the initial defamatory article published on September 5, 2010, the Defendants stated that Lamothe and Baker used political connections and the electoral victory to improperly profit off the sale of Haitel. This attack targeted Baker and Lamothes business reputation and also clearly implicated Lamothes use of his position as Prime Minister to improperly influence the negotiations, sale, and payments from Haitel. As a result, Defendants attack is libel per se. In Miami Herald Publishing Company v. Ane, the court pointed out that Floridas concern for individual reputation is reflected in article I, section 4, of the Florida Constitution. 458 So.2d 239, 241 (Fla. 1984). And in singling out defamation in civil tort litigation, defamatory statements of such a nature are presumed harmful as a matter of law. See Montgomery v. Knox, 23 Fla. 595, 3 So. 211, 217 (1887), (statements defamatory per se are presumed harmful as a matter of law.) See also Miami Herald Publishing Company v. Brown, 66 So.2d 679, 680-81 (Fla.1953), wherein the court made clear that general damages for defamation per se are those which the law presumes must naturally, proximately, and necessarily result from the publication of the libelous matter. They arise by inference of law, and are not required to be proved by evidence and Bobenhausen v. Cassat Ave. Mobile Homes, 344 So.2d 279, 281 (Fla.1st DCA 1977), cert. discharged, 363 So.2d 1065 (Fla.1978) (malice is presumed as a matter of law from the publication of such words). Moreover, not satisfied with falsely attacking Lamothe and Bakers professional reputations with distorted and untruthful assertions in their August 15, 2012 and September 5, 2012 articles, HOG and Joseph chose to elevate the defamatory nature of the publication to unabashedly claim that the Plaintiffs companies were the subject of tax evasion and moneylaundering. Clearly such statements directed at a sitting public official and prominent businessman could have no effect other than to destroy their credibility and clout both politically and professionally. Such statements are defamatory per se. See Wolfson v. Kirk, 273 So.2d 774, 777 (Fla. 4th DCA 1973) (quoting Campbell v. Jacksonville Kennel Club, Inc., 66 So.2d 495, 497 (Fla.1953)), the court recognized that an oral communication is actionable per sethat is, without a showing of special damageif it imputes to another (a) a criminal offense amounting to a felony. The court explained that [t]he significance of the classification of a communication as actionable per se lies in the fact that its victim need not plead or prove malice (except where a
privilege is involved) or special damage because malice and the occurrence of damage are both presumed from the nature of the defamation. Wolfson, 273 So.2d at 777. Here, there is no question that claiming that the Plaintiffs are being investigated for tax evasion and money laundering imputes felony crimes against the Plaintiff, and thus constitutes defamation per se. d. Lamothes potential status as a public official does not negate his likelihood of success.
Whether this Court determines Lamothe is a public official for the purpose of levying the higher burden for demonstrating defamation, Lamothe nonetheless shows a substantial likelihood of success. Baker, on the other hand, is assuredly a private business person whose claim runs along the standard burden. The matter of whether Lamothe is a public official is a matter of law for this Court to determine. See Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966); Egiazaryan v. Zalmayev, Case No. 11 Civ. 2670 (PKC), 2011 U.S. Dist. LEXIS 140851 *13 (S.D.N.Y. Dec. 6, 2011). Florida defamation claims are guided by First Amendment jurisprudence particularly with regard to defamation claims by public officials. 1 More specifically, Florida follows what is commonly referred to as the The New York Times rule from the U.S. Supreme Court decision New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Holter v. WLCY T.V., 366 So. 2d 445, 450-451 (Fla. 2d DCA 1978), cert. denied, 373 So.2d 462 (Fla. 1979). The New York Times rule is as follows: The constitutional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malicethat is, with knowledge that it was false or with reckless disregard of whether it was false or not. [Emphasis supplied.] Id. (quoting 376 U.S. at 279-80, 84 S. Ct. at 726, 11 L. Ed. 2d at 706). There are, however, well defined limits upon the free press. Id. at **21. In other terms, [T]he knowingly false statement
1
Miami Herald Pub. Co. v. Ane, 423 So. 2d 376, 384-385 (Fla. 3d DCA 1982) (It is a fundamental principle of federal constitutional law that no state court is authorized to interpret any provision of the United States Constitution, including the First Amendment, in a manner which is contrary to United States Supreme Court decisions interpreting the same provision of the United States Constitution.).
and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection. Id. (quoting In Garrison v. Louisiana, 379 U.S. 64, 75, 85 S. Ct. 209, 216, 13 L. Ed. 2d 125, 133 (1964)). Yet two considerations should move this Court to view Lamothe as a private claimant here, and not a public official. First, the subject of the defamatory statements focuses on Lamothes alleged acts as a private business person. Second, even if Lamothe is a public official, he is an official in Haiti, a foreign state. While Lamothe is a public official in Haiti, being a public official of a foreign state should not subject one to the same standard as a local, public official. [S]hielding government officials from public protest is incompatible with our democratic structure, which relies on public criticism as a means of promoting responsive government. Foreign ambassadors, in contrast, have no similar obligation to be accessible to public attack, and our polity does not have the same interest in ensuring that they are. Finzer v. Barry, 798 F.2d 1450, 1462 (D.C. Cir. 1986). Finzer was not a defamation or libel case. Rather, the opinion regarded the constitutionality of a municipal ordinance constraining public protest against a foreign embassy. Nonetheless, it addresses the notion that this countrys First Amendment Rights are not an international safe haven for discontents to launch defamatory salvos. More to the point, perhaps, is Lopez v. Univision Communs. Inc., where the district court commented: But while uninhibited debate about many prominent foreign officials will be relevant to such matters as making informed judgments about U.S. foreign policy and international relations, this Court is not prepared to say that the holding of any foreign public office is alone sufficient to require application of the Times standard, at least to [1] a publication that does not identify the plaintiff as a public official and [2] that does not directly concern the plaintiff's performance of official duties. 45 F. Supp. 2d 348, 361 (S.D.N.Y. 1999) (emphasis added). The courts comments, albeit dicta for this Courts consideration, suggested that where the thrust of the comments concerned the plaintiffs medical practice not acts in his capacity as a member of the Colombian Senate the New York Times rule might not apply. Id. Nonetheless, ones status as a foreign senator was not irrelevant and other cases have held foreign officials to the New York Times rule. See id. (surveying some decisions, footnotes and citations omitted). Here, while some of the statements
might be deemed to regard Lamothes influence as a foreign, public official, there is no official aspect of the false claims that Lamothe has violated criminal laws, such as money-laundering and tax-evasion. Even if this Court deems Lamothe a public official, he nonetheless shows a likelihood of success where malice should be presumed as a matter of law on these facts. Where statements constitute libel per se, [m]alice is presumed as a matter of law in such cases. Johnson v. Finance Acceptance Co., 118 Fla. 397, 401 (Fla. 1935). See also Ordonez v. Icon Sky Holdings LLC, Case No. 10-60156-CIV-SEITZ/SIMONTON, 2011 U.S. Dist. LEXIS 96939, **21-22 (S.D. Fla. Aug. 30, 2011) (citing Johnson for the proposition that in a libel per se action, special damages need not be shown to sustain the action because malice is presented as a matter of law in such cases.). A publication constitutes libel per se under Florida law if, when considered alone without innuendo, it (a) charges that a person has committed an infamous crime or (b) tends to injure one in his trade or profession. Ordonez, 2011 U.S. Dist. LEXIS 96939, *22 (citing Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953)). Such is the case here. Defendants statements charge that Plaintiffs have committed infamous crimes, e.g., tax evasion and moneylaundering. Moreover, the statements meet the second prong, as the statements tend to injure both Lamothe and Baker in their trade and professions. 2. Baker and Lamothe face irreparable injury.
Defamation cases readily evoke the imagery of a djinni escaped from the lamp even retraction of statement often cannot serve to restore the status quo. Once allegations of a criminal nature and underhanded business dealings are lodged against a top politician and his business associates, the matter becomes a perverse issue of guilty until proven innocent. For the gravity of such wrong-doing for the practical irreversible damages associated such defamation the law permits punitive damages for defamation per se. See Jones v. Greeley, 6 So. 448 (Fla. 1889) (The singular protection afforded by Florida law to personal reputation in actions for defamations per se is further seen by the fact that punitive damages may be the primary relief in a cause of action for defamation per se.) See also Nodar v. Galbreath, 462 So.2d 803 (Fla. 1984) (express malice for punitive damages under Florida law is present where the evidence shows that an intention to injure the plaintiff was the primary motive for statements defamatory
per se.) However, even with an award of punitive damages after trial, the harm that the Plaintiffs have and will continue to suffer is irreparable. Even such an award cannot repair the lost confidence or professional ties that follow men of such high political and professional stature. Here, the defamatory statements published by HOG and Joseph impose a substantial threat of irreparable injury. The longer the three defamatory articles persist, they can be replicated, linked, serialized, or otherwise distributed across the internet. 3. The injury to Baker and Lamothe outweighs the potential harm to Defendants.
With knowledge of their falsity or reckless disregard for the truth, the Defendants assert allegations of criminal and nefarious business acts by the Plaintiffs through their internet website. This site provides no basis to refute the allegations except in Court. On the other hand, absent an injunction, the Defendants have unfettered ability to continue to publish unsubstantiated lies about the Defendants, while the damage to the reputations and professional and political reputations of the Plaintiffs suffer irreparably. Should the Defendants be made to remove outdated, stale articles from the Website, they will suffer no appreciable harm. Unfortunately for Plaintiffs, the print editions of the three articles are out, and not retrievable. Defendants might claim that an injunction will infringe upon their freedom of speech; however, such a freedom does not permit unbridled defamation per se. See Chaplinsky v. New Hampshire, 315 U.S. 568, (1942). The Court famously stated: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the ... the libelous ... those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Id. Plaintiffs do not seek a preliminary injunction that would constitute a prior restraint upon Defendants, their Website, or newspaper. While Plaintiffs wish for Defendants to cease and desist in their concerted campaign of defamation, Plaintiffs understand the limits of the injunctive relief available at this juncture. Consequently, Plaintiffs prayer for relief focuses on retraction and removal of the three, subject articles.
4.
Enjoining the Defendants from publishing further defamatory statement and retracting past statement against Plaintiffs would not be adverse to the public interest.
Not only would the retraction of libelous statements by the Defendants against Lamothe and Baker not be adverse public interest, it would be in the best interest of serving the public. Lamothe, as the Prime Minister of Haiti, serves an important public service for the people of his country as well as those Haitian citizens residing in the Southern District of Florida. Allowing him to serve the interest of the public, without being derailed in his efforts and goals by intentional falsities, or statements made with reckless disregard for the truth, would be far from adverse to the public interest. Instead, it would be in the best interest of the public to enjoin the Defendants from preventing Lamothe to carry out his important public services by virtue of the false and malicious lies being published on the Defendants website. Moreover, it is difficult to discern what public interest defamatory per se statements would have upon assisting Lamothe in serving the public. Likewise, while not a public figure, Baker, as a private citizen enjoys the freedom from having his personal and professional business interests interfered with by the lies and falsehood being broadcast by the Defendants. It is difficult to acknowledge how enjoining the Defendants from publishing lies against Baker and Lamothe would serve anything but a benefit to the public interest. WHEREFORE, Baker and Lamothe respectfully move this Court for a preliminary injunction hearing with notice to Defendants, wherein Plaintiffs may present further evidence, and for an order entering a preliminary injunction that (a) directs Defendants to retract the August 15, 2012, September 5, 2012, and the September 18 2012 articles published on the Defendants website; (b) directs Defendants to remove the three subject articles from the Website and any other means of distribution and publication, and to refrain from any form of re-print or re-publication of any of the defamatory statements against the Plaintiffs published in the August 15, 2012, September 5, 2012, and the September 18, 2012 articles; (c) and for such other and further relief as the Court deems just and proper.
CERTIFICATE OF SERVICE The foregoing motion shall be personally served with process. Alternatively, if movant has presented this motion out of time for the process server, undersigned counsel shall advise this Court with a notice of service by mail, if personal service of process has been effected prior to inclusion of this motion to materials to be served by process server. Respectfully submitted,
/s/ J. Ronald Denman_____________ J. Ronald Denman (863475) jrdenman@pbyalaw.com Miguel Armenteros (0014929) miguel@pbyalaw.com PERLMAN, BAJANDAS, YEVOLI & ALBRIGHT, P.L. 1000 Brickell Avenue, Suite 600 Miami, FL 33131 Telephone: (305) 377-0086 Facsimile: (305) 377-0781 Attorneys for Plaintiffs
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Laurent Lamothe Requests Preliminary Injunction Against Haiti-Observateur

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Floridas Pre-Suit Notice Requirement was met.

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