IN THE CIRCUIT COURT OF THE SIXTH rudicial CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA

Transcription

1 Filing# Case 8:17-cv VMC-MAP E-Filed 04/17/ :11:07 Document PM 6 Filed 07/27/17 Page 1 of 19 PageID 239 RUGGERO SANTILLI, Plaintiff, IN THE CIRCUIT COURT OF THE SIXTH rudicial CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA v. CASE NO.: CI PEPIJN VAN ERP, et al., Defendants. I DEFENDANT PEPIJN VAN ERP'S MOTION TO DISMISS AMENDED COMPLAINT AND IN CORPORA TED MEMORANDUM OF LAW Pursuant to Florida Rule of Civil Procedure 1.140(b ), Defendant Pepijn van Erp ("Van Erp") moves to dismiss Plaintiffs Amended Complaint. The Amended Complaint fails to state a cause of action and thus should be dismissed with prejudice. INTRODUCTION This is a defamation case brought by Plaintiff Ruggero Santilli ("Santilli"), who purports to be a scientist. Santilli' s defamation claim stems from his assertion of two patently absurd scientific "discoveries." First, he claims to have discovered a new type of atomic bond, the "magnecular" bond. Second, he claims that anti-matter produces anti-matter light, and that antimatter light can be focused using concave (as opposed to convex) lenses. Neither of these claims is accepted by the scientific community. Defendant Van Erp is a Dutch mathematician who has written articles on his own webpage, vvv.'w.pepijnvanerp.nl, criticizing various phony scientific claims. Exhibit A to the Amended Complaint is one of those articles. In Exhibit A, Van Erp describes the "extraordinary claims" that Santilli has made and explains that those claims are "eas[y] to debunk." See ***ELECTRONICALLY FILED 04/17/ :11:07 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***

2 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 2 of 19 PageID 240 Am. Comp., Exh. A, at 1. The statement that Santilli's theories are easy to debunk is critical to this case for two reasons. First, as Florida Rule of Civil Procedure 1. l 30(b) provides, "[a]ny exhibit attached to a pleading must be considered a part thereof for all purposes." This means that the unchallenged statements in Exhibit A that contradict or negate the allegations in the Amended Complaint are controlling and "must be considered in determining a motion to dismiss." Fladell v. Palm Beach County Canvassing Bd., 772 So. 2d 1240, 1242 (Fla. 2000). Second, Exhibit A is critical because it states that Santilli's alleged scientific discoveries are easily debunked, meaning they are nonsense. Because the Amended Complaint does not challenge this statement, the Amended Complaint effectively admits that the claims are nonsense and admits the truth of nearly every other important factual statement in Van Erp' s articles. Those statements completely undermine Santilli' s defamation claim. Moreover, most of the allegedly defamatory statements Santilli complains about are not statements of fact, but merely statements of Van Erp's opinions, based upon undisputed facts Van Erp has disclosed to his readers. As explained below, these facts doom Santilli's defamation claim. THE CLAIMS The Amended Complaint fails to identify with clarity which specific statements it asserts are defamatory. The Amended Complaint attaches as Exhibits three articles Van Erp published on his website: Exhibit A ("The Continuing Sh1pidity of Ruggero Santilli"), Exhibit B ("Finding N Kadeisvili - or Mailing with Ruggero M Santilli"), and Exhibit C ("More Santilli Shenanigans") (collectively, the "Articles"). But it does not specifically cite to or quote any of the Articles or lay out in detail the allegedly defamatory statements contained in them. 2

3 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 3 of 19 PageID 241 Instead, the Amended Complaint lumps the three Articles together, refers to them collectively as "The Subject Articles," and asserts in general and vague terms that The Subject Articles defame Santilli by containing the following allegedly false statements: Am. Comp. i!l Santilli is a "fringe scientist"; 2. Santilli is "a mad professor"; 3. Santilli is a "a cunning scam artist"; 4. Santilli publishes articles using "fake" journals; 5. Santilli fabricates, changes and/or wrongly instigates awards provided to him by third parties; 6. Santilli falsely poses as another individual for personal and business gain; and 7. Santilli pays for publication services. Santilli makes no effort to connect these allegedly defamatory statements to any specific sentence in any particular Article. Instead, he leaves the burden on this Court (and on Van Erp) to try to identify which statements in which Articles form the bases for his claim. Regardless of where (or whether) these statements can be found in the Articles, for a variety of reasons they cannot support Santilli's defamation claim. ARGUMENT Florida trial courts play a "prominent function" in defamation cases by determining as a matter of law if the challenged statements constitute protected opinion or rhetorical hyperbole. Byrd v. Hustler Magazine, Inc., 433 So. 2d 593, 595 (Fla. 4th DCA 1983) (citing Wolfson v. Kirk, 273 So. 2d 774, 778 (Fla. 4th DCA 1973 )). If so, the Court is justified in dismissing the action. Wolfson, 273 So. 2d at 778. Pretrial disposition is especially appropriate in defaniation 3

4 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 4 of 19 PageID 242 cases because of "the chilling effect" these cases have on First Amendment rights. Karp v. Miami Herald Publ'g Co., 359 So. 2d 580, 581 (Fla. 3d DCA 1978); Stewart v. Sun-Sentinel Co., 695 So. 2d 360, 363 (Fla. 4th DCA 1997). In this case, basic principles of libel law establish that the Amended Complaint is without merit and should be dismissed. I. Statement Nos. 1, 2, And 3 Fail To Support Santilli's Defamation Claim Because They Are Statements Of Opinion Or Rhetorical Hyperbole. The First Amendment to the U.S. Constitution prohibits a defamation claim that is based upon statements of opinion or rhetorical hyperbole. Statement Nos. 1, 2, and 3 (i.e., that Santilli is a "fringe scientist," a "mad professor," and a "cunning scam artist") are not false statements of fact, but rather matters of opinion and figurative language that simply are not actionable, particularly in the context of scientific debate. To state a claim for defamation, a plaintiff must plead and prove the following elements: (1) a false and defamatory statement of and concerning another; (2) an unprivileged publication to a third party; (3) fault on the part of the publisher; and (4) damages. Mile Marker, Inc. v. Petersen Publ'g, L.L.C., 811 So. 2d 841, 845 (Fla. 4th DCA 2002) (citing Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, (Fla. 1st DCA 1997)). Moreover, the false statement about the plaintiff must be a false statement offact. See Zorc v. Jordan, 765 So. 2d 768, 771 (Fla. 4th DCA 2000) ("A false statement of fact is absolutely necessary ifthere is to be recovery in a defamation action.") (internal quotation omitted); Byrd v. Hustler iv1ag., Inc., 433 So. 2d 593, 595 (Fla. 4the DCA 1983) ("A false statement of fact is the sine qua non for recovery in a defamation action."). In th]s case, the statements at issue are opinion and rhetorical hyperbole, not statements of fact. The statements at issue, therefore, are not actionable. 4

5 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 5 of 19 PageID 243 A. Statement Nos. 1, 2, and 3 are matters of opinion. The protection of opinion is well-established in Florida law. "Commentary or opinion based on facts that are set forth in the article or which are otherwise known or available to the reader or listener are not the stuff of libel." Rasmussen v. Collier County Pub. Co., 946 So. 2d 567, 571 (Fla. 2d DCA 2006). "The determination whether a statement is fact or opinion is a question oflaw for resolution by the court." Zambrano v. Devanesan, 484 So. 2d 603, 606 (Fla. 4th DCA 1986). "In assessing whether an allegedly libelous statement is opinion, the court must constrne the statement in its totality, examining not merely a particular phrase or sentence, but all of the words used in the publication." Rasmussen, 946 So. 2d at 571. Considering the Articles as a whole, it is clear that the phrases contained in Statement Nos. 1, 2, and 3 are pure opinion and, therefore, are not actionable. Statement Nos. 1, 2, and 3 appear in the Article attached to the Amended Complaint as Exhibit A. It is important to read the entire Article (set forth below, with the challenged words presented in bold), not merely the few words that Santilli challenges: Recently the following Y outube video of Thunder Energies Corporation, a company of fringe scientist Ruggero Santilli, has gotten quite some attention on the web, mainly on sites on the paranormal. [Embedded youtube video] So what does Santilli claim this time? That antimatter produces antimatter-light and that it can be focused using concave lenses. This in contrast to 'ordinary' light which you can focus with convex lenses. You can also read it in detail at the website of the company: Matter-Antimatter annihilation also requires that antimatter-light must have energy opposite that of matter-light, as predicted by P.A. M. Dirac in 1932 and verified by R. M. Santilli in his decades of research on antimatter (see the the theoretical confirmation and the experimental confirmation). This claim by Santilli might be the easiest to debunk of all the extraordinary claims he has made (like the existence of magnecules and his alternative explanation for why the sun colors red when it sets). The whole concept of antimatter-light is bullshit, because the anti-particle of a photon is simply a photon. So if you want to speak of antimatter-light 5

6 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 6 of 19 PageID 244 it's no different than 'normal' light. 'Antimatter-light' will therefore not focus with a concave lens. I will not even bother trying to give explanations for the grainy images he took with his Santilli-'out-of-focus' -telescope which he claims show Invisible Terrestrial Entities... Santilli writes that he has an article on this discovery of Invisible Terrestrial Entities in press with the American Journal ofafodern Physics. That's just one of those fake journals, which will probably print anything if you are willing to pay their fees (it's on Beall's list of predatory scholarly open-access publishers - 24/5/2016: see update below). It's not the first article on his silly Santilli telescope, some of affiliates wrote on it before in the same journal. And in 2014 Santilli wrote an article, together with some friends: "Preliminary confirmations of antimatter detection via Santilli's telescope with concave lenses". CHf'f.'OH.D A.NAL':i:'S!S, Ctlf'f'ORD AV."rn':BftAS A.Nn THfJ:m. AVPUCATlONS CACAA - d&:11;il)'><l>'i.~::mn \-\.<L ~- No. 1, :Pl" 21.::m, ('.:8P - Omibl'Mi:;;,, t'k: 1&S - Ffot>:fa., CSA,. 2UH- PilELil\lINAI{):" CONFilllVIATlf)N"S ()}"I ANTitvL.\TTER DETECTION VIA S.ANTILLrs TELESCOPE \VITII CONC.A'\TE LENSES l D<:~pan:.tn(:nt of :Pby"'k"', J\1. IL \V~:gad. Sk ki~( 1: Gom:g<:, tin;rer J.fJ.2H~>,, lnd.in '~ l!i:btlt:ute kit Hiii:ik H1:~Nlf(:h, WO E~ist'winds Ct, Pah~i I-forl:»:!r, FL ~:l :ifli<n, 1.J'SA. :=: Tfaiwfor Fi<::;km Gd p,!rn.l:i<m, itio H;:itn d.!k IhL 'faq:»:m Spdng"', FL ::l=wsti, U.S.A ~ N.ight. Fa,,x PnidlKtkiHs, P. O. Bf<.."<: '.f'j:2, Dimedfo, FL ~HJYYt,. USA. ''-. Dqiattm{:Ht. ;!f Applied Phy:!:';ks. ICD.K_ CoHq,;.:~ ~:if Enghin,ring, Nil.grim :j;.-tfl(l{n, Iw:fo~ (\,n <:: ~p>'->ndi:~ 1g A J.Uwr. E-muH: t>.~~<jf~n:h:@thtrn.d,;'l vfn~:kr::l(' oiu 'But wait, there is no Santilli mentioned as author!', you might think. That's right, but in another article on my website (from May 2013) you'll find my proof that 'J.V. Kadeisvili' is just an alias for Ruggero Santilli himself: 'Finding JV Kadeisvili - or Mailing with Ruggero M Santilli'. The website of this journal doesn't show any useful info at the moment, but from an announcement (2011) we pick up that the Editor in Chief is (or was) Svetlin Georgiev, who has written a five volume book series on the isomathematics of Santilli. I wonder how much Santilli paid for that service. Is Santilli just a mad professor? Or is he a cunning scam artist trying to sell his 'Santilli-ofocus-scopes' (or even better: stock in his businesses) to people who fall easily for sciency sounding nonsense? Maybe both... Am. Comp., Exh. A (bold type added). 6

7 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 7 of 19 PageID 245 The words the Amended Complaint challenges merely express an opinion based upon facts known to readers or disclosed in the unchallenged portions of the article. For example, the opinions are based, at least in part, upon the following unchallenged facts disclosed in the article: Santilli's youtube video about "antimatter-light" has received substantial attention on websites about the paranormal; Santilli's claim that "Matter-Antimatter annihilation also requires that antimatterlight must have energy opposite that of matter-light" and that "antimatter-light" can be focused using concave lenses might be the easiest of all his extraordinary claims to debunk; Santilli's concept of"antimatter-light" is false because the anti-particle of a photon (i.e., the fundamental particle of light) is also a photon, meaning that "antimatter-light" is simply light; The Amended Complaint does not contest the truth or accuracy of any of these statements. But the statement that Santilli is a "fringe scientist," and the questions about whether he is "a mad professor" or "a cunning scam artist," are based upon these uncontested facts. A scientist whose theories are easily debunked, who asserts the existence of something (anti-matter light) that does not exist, and who makes the obviously wrong claims that light can be focused with concave lenses, is not a mainstream scientist. As a result, the statements are statements of pure opinion and cannot support a defamation claim. See, e.g., Town of Sewall's Point v. Rhodes, 852 So. 2d 949, 951 (Fla. 4th DCA 2003) (description of plaintiffs' property as "Hillbilly Hellhole" was non-actionable opinion based upon facts apparent in accompanying photograph); Sullivan v. Barnett, 510 So. 2d 982, 984 (Fla. 4th DCA 1987) (defamation claim failed because facts supporting opinion critical of plaintiff were "substantially described" in letter); Hay v. Independent Newspapers, Inc., 450 So. 2d 293, (Fla. 2d DCA 1984) (statements referring to the plaintiff as a "crook" and a "criminal" were pure opinion protected by First Amendment); Demoya v. Walsh, 441 So. 2d 1120, (Fla. 3d DCA 1983) (characterization of co-worker as "raving maniac" and 7

8 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 8 of 19 PageID 246 "raving idiot" was pure opinion based on disclosed facts); Lampkin-Asam v. Miami Daily News, Inc., 408 So. 2d 666, 667 n. l (Fla. 3d DCA 1981) (because columnist's characterization of plaintiff as "almost paranoical" was "based on facts set forth in the column," it was pure opinion "entitled to absolute constih1tional protection"). The opinion doctrine, therefore, is fatal to Santilli's defamation claim in connection with Statement Nos. 1, 2, and 3. B. Statement Nos. l~ 2, and 3 are rhetorical hyperbole. Statement Nos. 1, 2, and 3 fail to support a defamation claim for a second reason: The challenged phrases are mere rhetorical hyperbole and, therefore, are not actionable. Florida law is clear that colorful language or hyperbole - even statements that are highly insulting- are not defaniatory because they are not statements of fact. See, e.g., Seropian v. Forman, 652 So. 2d 490, 496 (Fla. 4th DCA 1995) (describing plaintiff as "influence peddler" was non-actionable "rhetorical hyperbole, a vigorous epithet," used to convey defendants' view that plaintiffs arguments were "extremely unreasonable"); Pullum v. Johnson, 647 So. 2d 254, 257 (Fla. 1st DC A 1994) (calling plaintiff a "drug pusher" an1ounted to "exaggerated hyperbolic language" not reasonably interpreted as stating actual facts). See also Greenbelt Co-op. Pub. Ass'n v. Bresler, 398 U.S. 6, 14 (1970) (use of"blackmail" to describe a person's negotiating position was protected rhetorical hyperbole); Horsley v. Rivera, 292 F.3d 695, 702 (11th Cir. 2002) (accusation that plaintiff was "accomplice to murder" of abortion doctor not actionable because words were used conveyed speaker's view that plaintiff was "morally responsible" for death of doctor, not criminally liable); U.S. v. Tieco, Inc., 261 F.3d 1275, (11th Cir. 2001) (counsel's assertion that conduct of equipment vendor in filing ethics complaint was "the equivalent of Jeffrey Dahmer complaining his victims got blood on the carpet" not reasonably construed to equate the vendor to a convicted mass murderer). 8

9 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 9 of 19 PageID 247 Here, too, the statements alleged in the Amended Complaint convey the type of nonliteral social discourse the First Amendment protects. The immunity such speech enjoys is founded upon the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times v. Sullivan, 376 U.S. 254, 270 (1964). Public debate about Santilli's tmsupported scientific theories is precisely the type of debate the First Amendment not only protects, but encourages. To the extent it is based upon Statement Nos. 1, 2, and 3, Santilli's defamation claim should be dismissed. II. Statement No. 6 Is A Statement Of Opinion Based Upon Disclosed Facts. Statement No. 6 (Santilli falsely poses as another individual for personal and business gain) is a statement of protected opinion based upon disclosed facts. Statements of opinion cannot constitute actionable defaniation. Stembridge v. Mintz, 652 So. 2d 444 (Fla. 3d DCA 1995) (citation omitted). Protected opinions are based upon facts set forth in the article or othenvise known or available to the reader as a member of the public. Stembridge, 652 So. 2d at 446; From v. Tallahassee Democrat. Inc., 400 So. 2d 52, 57 (Fla. lstdca 1981); see also Miami Children's World. Inc. v. Sunbeam Television Corp., 669 So. 2d 336, (Fla. 3d DCA 1996); Della-Donna v. Yardley, 512 So 2d 294, 295 (Fla. 4th DCA 1987). Here, Van Erp disclosed the relevant facts that led him to conclude that Santilli uses the name ''J.V. Kadeisvili" as a false identity. Based upon those facts, no other rational conclusion can be drawn. In 2006, Santilli published an article in the International Journal of Hydrogen Energy titled "A new gaseous and combustible form of water." As Van Erp explains, In this article Santilli claims to have found a new gas, HHO, which he produces using a (patented) apparatus from distilled water. It's different from the stochiometric mixture of H 2 and 0 2, you would expect to get from the process which looks like electrolysis. Santilli substantiates his claims by presenting all kinds of measurements, which results cannot be explained by assuming it to be a well known gas (or mixture). His explanation is revolutionary: there must be another kind of atomic bond and his HHO-gas is in fact the first of a family of 9

10 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 10 of 19 PageID 248 new molecules, Magnecules. HHO, Santilli explains, should be written as (H x H) - 0, where ' -' is the conventional molecular bond, and 'x' is the new 'magnecular' bond. Am. Comp., Exh. B, at 1. In a subsequent issue of the International Journal of Hydrogen Energy, Professor J.M. Calo of Brown University completely discredited Santilli's thesis. As Van Erp describes Professor Calo's article: Almost no paragraph in Santilli's article is without error or complete misunderstanding of the measurements involved. Calo concludes: Am. Comp., Exh. B. at 1. The author provides absolutely no scientific evidence that supports the existence of a new form of matter called "HHO gas." From the data presented, the gaseous product from the electrolyzer behaves in the same manner as would be expected of a mixture of hydrogen, oxygen, and water vapor. In response to Professor Calo's article, someone going by the name ''J.V. Kadeisvili" published an article defending Santilli, titled "Rebuttal of J.M. Calo's comments on R. M. Santilli's HHO paper." Van Erp explains that this article is unusual because it "doesn't actually contain any scientific argument against Calo's comments," but instead attempts to reverse the standard scientific burden of proof. Typically, someone making an extraordinary claim (discovery of a new type of atomic bond) must provide extraordinary proof, but "Kadeisvili" argues that Professor Calo cannot be taken seriously unless he attempts to replicate the alleged results of Santilli's experiments. Van Erp then learned about a former colleague of Santilli's who suggested that several of Santilli's ostensible colleagues actually are aliases for Santilli. Van Erp had had the same suspicion about "Kadeisvili" because his writing sounded just like Santilli's and because Van Erp could not locate any biographical information on "Kadeisvili." Van Erp also looked into 10

11 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 11 of 19 PageID 249 Santilli's company, the Institute for Basic Research ("IBR"), and discovered that the Institute's office location was so small that it almost certainly could not be an actual research institute with labs and employees. Critically, the Amended Complaint does not challenge any of these facts. him: Highly doubtful that "Kadeisvili" was a real person, Van Erp set out to learn more about I send s to the addresses of the IBR and the Santilli Foundation in which I kindly asked for some background infom1ation on Kadeisvili, his curriculum vitae and possibly a photograph, mentioning that I was writing an article on different theories on HHO-gas. The first reaction of dr. George F. Weiss set the tone for the following communications: Am. Comp., Exh. B at 2-3. Subject: Re: request for information about Prof. Kadeisvili Dear "Mr." Pepijn van Erp, We would gladly cooperate not only by putting you in touch with Professor Kadeisvili (who is interested in direct exchanges with you), but also to provide you samples of similar gases (at no cost) for measurements before you throw any mumbo-jambo conceptual gyration, as well as copies of ongoing scientific and industrial developments in the field that are now receiving millions of$$$ invested from the industry (see attachment)!!! while the field is completely ignored in academia!!! to their evident peril!!! However, before doing so, we want to know who are you, perhaps by providing us your CV. We also request the ofl\llister Calo (mister because he wrote a note of criticism on Prof. Santilli HHO paper with zero technical knowledge in the field - something serious scholars certainly do not do!) so that he can receive copies of the correspondence since we do not do thin gs in the back. Additionally, we want to stress that your evident suppression of scientific democracy did hit me in the eye, by carefully calling Cale "Prof." while calling the discoverer of the new species, Prof. Santilli, as "Mr.", and reaching the much offensive absence of any title for Martin Clonan, a real Professor in Ireland. 11

12 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 12 of 19 PageID 250 In response to this incoherent and childish correspondence, Van Erp continued his efforts to obtain information about "Kadeisvili," and explained the results of those efforts with obvious sarcasm: I kept on asking for the cv of Kadeisvili or at least the names of the universities where he studied and got his PhD. And finally I got an from Kadeisvili himself! Subject: Erp's serious science or blabling?? Mr. Erp, you want to write an article on Prof Santilli' s new chemical species of magnecules?? Come on!! You do not have the knowledge. In the event you and mister Calo had a minimum of science in mind you would repeat the measurements first before blabbling. At any rate, I provide it below in the event you are not scamming. YT NKadesivbii Note that he doesn't seem to be able to spell his own name correctly. To make a long story short: the correspondence went on for several s, but no cv of Kadeisvili was ever provided. Am. Comp., Exh. Bat 3. Again, these facts are unchallenged in the Amended Complaint. The individuals associated with the IBR respond to inquiries about one of their researchers not in a professional or reasonable manner, but with ad hominem attacks filled with grammatical errors, misspellings, and multiple exclamation marks. They also refuse to provide even the most basic infom1ation about the so-called "Kadeisvili." And then an from "Kadeisvili" suddenly appears, again full of vitriol and written at a third-grade level, with "Kadeisvili" unable even to spell his own name correctly. Every one of these disclosed facts strongly supports Van Erp's opinion that "Kadeisvili" is nothing more than an alias for Santilli. Having reached this conclusion, Van Erp tells his correspondents at IBR that he believes Santilli and "Kadeisvili" are the same person. The response he receives is illuminating: 12

13 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 13 of 19 PageID 251 Things got more nasty after I stated that I had to assume that Kadeisvili does not exist, because they couldn't answer my simple questions. In the end I received an by Richard Cox, member International Committee on Scientific Ethics and Accountability. It starts as follows: Subject: The returned defecations Dirty man, Prof. Kadeisvili provide you quite nicely various scientific information and references on Prof. Santilli's magnecules and their industrial applications, and also invited you to be part of their forthcoming course on hadronic mechanics, and you answer with this filth below! You are a dirty filthy puking man in great need of some legal fixing for which our Committee has been set forth and fully funded, that's what we do, fixing human filth in science, and here is part of the action going on to fix you. Our specialized Investigative Agency on scientific filth that includes former CIA operatives has already "bugged" your computer and is now collecting info to identify your real name, affiliation and ethnic connotation. Wow! And this goes on for a while. Here I will only give the last sentence, which is a gem as well: As Professor Kadeisvili put it with gentle language very inappropriate for your filth "you are a threat to America and mankind." You can read the entire correspondence in Mailing with Ruggero Santilli - looking for Prof JV Kadeisvili- April-Mav 2012 (pdf-file ). Later I noticed that two of the 'people' mailing me (George Weiss and Richard Andersson), were using the same computer. The headers of the mails give: Received: from (HELO Ruggero- Santillis-Mac8ook -Pro. local) Am. Comp., Exh. Bat 3-4. These facts show, among other things, that the "individual" allegedly running the IBR are either extraordinarily childish for supposed scientists, or that they are nearly illiterate, or both. They also show that both "George Weiss" and "Richard Anderson" correspond using Santilli' s computer. Once again, none of these facts are challenged in the Amended Complaint. 13

14 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 14 of 19 PageID 252 After publishing his Article about Santilli and "Kadeisvili" being one and the same person, Van Erp continued to investigate "Kadeisvili" and to provide occasional updates. Two of the updates from early 2014 are worth noting and are nearly comical in their absurdity: Update On the website of the IBR something which is supposed to look like a cv of Kadeisvili (pdf) can now be found, dated December Unfortunately it's just a list of publications. Looking for the interesting information you'll only find: "(personal curriculum provided on request)". Someone should give it a try... Update The cv on the IBR website has been changed again, it now states that Kadeisvili lived from January 9th 1960 until January 16th So we are supposed to believe that dear old Jerdsay passed away the day before my previous update (pdf creation date Feb ). Am. Comp., Exh. B at 6. In light of this mass of incredible facts, it is entirely reasonable to form and express the opinion that Santilli and "Kadeisvili" are the same person. In fact, only an irrational person would conclude otherwise. Thus, Van Erp's opinion that Santilli and "Kadeisvili" are the same person is protected speech and cannot give rise to a defamation claim. Stembridge v. Mintz, 652 So. 2d 444, 446 (Fla. 3d DCA 1995) (citation omitted). III. Statement Nos. 4 And 7 Are Not False And Are Not Statements "Of And Concerning" Santilli. To the extent that the Articles actually make Statement Nos. 4 and 7 (i.e., Santilli publishes articles using "fake" journals and Santilli pays for publication services), those Statements are not about Santilli and are not false. Because the Amended Complaint does not quote the actual statements that Santilli is suing over, it is difficult to know precisely what statements he claims are defamatory. It appears, however, that Santilli is complaining about the following statement in the Article attached as Exhibit A: 14

15 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 15 of 19 PageID 253 Santilli writes that he has an article on this discovery on Invisible Terrestrial Entities in press with the American Journal of Modern Physics. That's just one of those fake journals, which will probably print anything if you are willing to pay their fees (it's on Beall's list of predatory scholarly open-access publishers). Am. Comp., Exh. A at 1. To survive a motion to dismiss directed toward a defamation claim, "the plaintiff must show that the defendant made a false statement of fact of or concerning the plaintiff" Baker v. McDonald's Corp., 686 F. Supp. 1474, 1484 (S.D. Fla. 1987), affd, 865 F.2d 1272 (I Ith Cir. 1988) (table). See also Mile Marker, Inc. v. Petersen Publ'g, L.L.C., 811 So. 2d 841, 845 (Fla. 4th DCA 2002). The statement that the American Journal of Modern Physics ("AJMP") is a "fake" journal which will print anything so long as a fee is paid is a statement of and concerning the AJMP, not Santilli. The AJMP's status as a predatory journal is not a statement about Santilli. Thus, it cannot provide the basis for his defamation claim. Moreover, Santilli does not challenge the fact that the AJMP is a predatory scholarly open-access publisher. Predatory open-access publishers are, by definition, publications that charge publication fees to authors without providing "the editorial and publishing services associated with legitimate journals." 1 By failing to challenge the fact that the AJMP is a predatory open-access publisher, Santilli acknowledges that AJMP is a fake journal to which authors pay fees for publication. Thus, he admits that Statement Nos. 4 and 7 are not false, meaning they cannot support his defamation claim. See, e.g., Zorc v. Jordan, 765 So. 2d 768, 771 (Fla. 4th DCA 2000) ("A false statement of fact is absolutely necessary if there is to be recovery in a defamation action.") (internal quotation omitted). See Wikipedia, Predatory Open Access Publishing, open access publishing (as of Apr. 7, 2017, 15: 15 EST). 15

16 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 16 of 19 PageID 254 IV. Statement No. 5 Is Not False. Statement No. 5 (Santilli fabricates, changes and/or wrongly instigates awards provided to Dr. Santilli by third parties) likewise is not false. It is not clear what Santilli means when he alleges that Van Erp said he "fabricates, changes and/or wrongly instigates awards,'' but presumably he means that Van Erp accused Santilli of making up awards for himself In the Article attached as Exhibit C, Van Erp made the following observations: In the comments on that 'Kadeisvili'-article, mr. S. was eager to inform me and the readers of the comments there that mr. S. had received another award. A piece of paper with his name on it and the words "Technical Achievement Award". The award certificate mentions several prominent institutions as co-sponsor of this award: ~: ; ~1:(~~~~i%l~Ji ;:;., : ~it>.rld Co>i.~ r:t.k,:>: l lth lnt#f'fl{,nit>f"i'(s/ c:{uffih'sftu.:':<."f (Hi Mathema~~~~;:;:;::::erhlg, Jr.: n.. -.C1\~>:~hi"JS':I t:1 Jxs.rtki:JX!...3i ;~~~ i:11 ~hr;: ::JHio:::-:~;;l~.m:~~ ~:.~h'i ~i~:;; m7ki ~rj t:lw: '>;'>..:}i~~:,1:.,hri t t-:,~;;:hr<1~::~~ o:(h~~~;i;t~h~11t ~. :.1: t::~c ~~(:!-:j -:.f ~=r~~:i::i~~frn ~ :ti:'{~~.:.:11:)i::~: 1~::1:.~ K:.i~::t~:<:.~ ::.':f::<~ f3"n: t::~1cl~r~?:.~~j 0:-~if;i!<i ~rn;.r:i'1i' The T1x':httical Achfowmcnt Award to '.Pr~~l?.?I(tJ.s~cro '-1~.Ji1n~1 j~:rnttzn f l.:uu}:.?r-:..,,f.?!.(i~:~) ;?~ (. ~-;r;.. \:~fd;..-;_w< (""~~;.;} ~.. ;i/.-!::i,.,-y;~. (, ~~i!.'if!'i!'?~'.!: :>:'.,i?~ ~-~.eh'.; ~ ~~~ /.~Yi;~~~:ii:.:::; _.\( ~~:.~: l).;t..:i' ~=-~ (;!': : ~ $'"~,:-~...:,..;y;;.. f.. ~'.-.-:;.:.~"i:{i',( :-:-'..< :-~ _,f:~ r ~':Co!-<" '")>: :.:.:.~ :-'":.-,::;--v..: (-:< -:of J...:~~o:-:M': x.r..-:-: :-}: =-,.. ~?i(,c-.x~v.. :X~<.~.~"'. X"<.'i<~.'!-,1,~\M1 :< (.'(Jt ).:... ;.; n: <::,r.{(.c.l&:>:x : "':... V'f.."3:...-:-.~;::~t :~..-~,< ~~a1 ;..::v ~~~,\.-t:::~~;,,:.;;-:.;. ~ ~) 1 {:"..:,.,..'i:.~.~;~ {~n,.).~; ~ f':]::'<, -... (:,J..,.-. -:-.'i:>:" r.. ~ "'~ (;~~..-;~. {'~>Y '?. '>'.:ii.::.-1..!:i.-c-:' *}"-'. ~ ««~~.<..:~'./ : i-<<(:-.;,~:-iv.:.~:-.:>)ys: X{;; :. ~ t) :'.-~-<.~~ ~fr >>">~ x-:.- N: ~.-.~~{ X<:<" "»:-.' '. :i'.:1,. ~~ ;>-'(, :...:. :. :~ >: : \.;):>. ~ 1"'f). ;. { ",,; ';-'(,';: f{ ~o.~:i. -.:! :<! :!'..w:~ f.:-/";;... ~:~.:.;.:,. One of those, the American Institute of Physics, I sent an for clarification. They answered me that more people had contacted them on this matter and that they were already taking action. The AIP was clearly not infom1ed about being mentioned as co-sponsor of this award. Their only involvement with the conference is that AIP Publishing would be publishing the conference proceedings. Exactly what AIP did, I don't know, but from the website of mr. S. we get the impression that they put some pressure on the organizers to remove all 16

17 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 17 of 19 PageID 255 mentions of AIP as co-sponsor, see the section '6. OrRanized scient?fic crimes pe1petrated by the Jewish control of the AIP' on this page [mirror]. To most people it will be clear that this award was instigated by mr. S. himself and that he just asked his co-worker Georgiev to organize the signatures. There is a clue that this piece of paper was doctored at the offices of mr. S.: the filename of the picture is 'TARPON_2.jpg', which points to the address of his business (1444 Rainville Road, Tarpon Springs, Florida) Am. Comp., Exh. C at 4. Once again, the Amended Complaint does not challenge any of the key facts disclosed by Van Erp - e.g., the name of the American Institute of Physics ("AIP") was placed on an award that the AIP did not sponsor, and the paper "award" itself was altered at the Tarpon Springs offices of Santilli. These facts plainly indicate that the "award" is not real. But the so-called award's incoherent wording makes it even more clear that it cannot possibly be real (and was either written by someone who does not speak fluent English or by someone who is illiterate): In recognition of the participation in the professional activities and to the outstanding technical contributions in the field of engineering, aerospace and sciences and the undersigned certified present The Technical Achievement Award to Prof. Ruggero Maria Santilli. Am. Comp., Exh. C, at 4. In other words, the "award" itself is the proof that the award is fake. Because the Amended Complaint admits the key facts discovered by Van Erp, and because the "award" itself evidences its own phony nature, Statement No. 5 is not false and cannot support Santilli' s defamation claim. V. Claims Based Upon the Article Attached as Exhibit Bare Barred by the Statute of Limitations. The statute of limitations for defamation claims in Florida is two (2) years. See Fla. Stat. 95.l 1(4)(g). The statute begins to run at the time of publication. See Fla. Stat ; Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan, 629 So. 2d

18 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 18 of 19 PageID 256 (Fla. 1993) (cause of action for defamation accrues on publication, rather than discovery, even where defaniation is private). Statements on the Internet are no different from other statements - the statute oflimitations begins to run upon initial publication. Holt v. Tampa Bay Television, Inc., Case No , 2006 WL , i! 20 (Fla. Cir. Ct. Mar. 17, 2006) (citations omitted), affirmed, 976 So. 2d 1106 (Fla. 2d DCA 2007). Here, Santilli filed his original Complaint on August 5, Thus, to the extent Santilli' s defamation claim is based upon any statements published before August 5, 2014, the claim is barred. Santilli bases his claim, at least in part, on the Article attached to the Amended Complaint as Exhibit B (although he does not point to any specific statements in the Article that he claims are false and defamatory). But as the Article itself indicates, it was "Published on May 30th 2013," see Am. Comp., Exh. Bat 5, meaning it was published more than two years before Santilli filed his original Complaint. Therefore, any claims based upon Exhibit B are barred by the statute of limitations. CONCLUSION WHEREFORE, Van Erp respectfully requests that the Court grant this Motion and dismiss the Amended Complaint with prejudice. 18

19 Case 8:17-cv VMC-MAP Document 6 Filed 07/27/17 Page 19 of 19 PageID 257 Respectfully submitted, THOMAS & LOCICERO PL Isl James B. Lake James J. McGuire Florida Bar No jmcguire@tlolawfim1.com James B. Lake Florida Bar No j lake@tlolawfirm.com 601 South Boulevard Tampa, Florida Telephone: (813) Facsimile: (813) CERTIFICATE OF SERVICE Attorneys for Defendant Van Erp I HEREBY CERTIFY that a trne and correct copy has been furnished via the Florida Courts E-Filing Portal on April 17, 2017, to: Joseph E. Parrish, Esq., The Parrish Law Finn, P.A., PO Box 1307, Brandon, FL Uparrish@theparrishfinn.com). Isl James B. Lake Attorney 19