Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 1 of 12 PageID #: 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION ELECTRONICALLY FILED IBJ BOOK PUBLISHING, LLC, and ) RICHARD E. ( DICK ) CADY ) ) Plaintiffs, ) ) v. ) CASE NO. ) NADER GEORGE SHUNNARAH and ) JOHN ANDREW WHITE ) ) Defendants. ) COMPLAINT Plaintiffs, IBJ Book Publishing, LLC ( IBJ Book Publishing ) and Richard E. ( Dick ) Cady, by counsel, for their complaint against the Defendants, Nader George Shunnarah and John Andrew White, allege and state that: PARTIES 1. IBJ Book Publishing is an Indiana limited liability company that is engaged in the business of book publishing with its principal place of business located at 41 East Washington Street, Suite 200, Indianapolis, Marion County, Indiana 46204. Its sole member is IBJ Corporation, an Indiana corporation, whose principal place of business is located at 41 East Washington Street, Suite 200, Indianapolis, Marion County, IN 46204. 2. Cady is a resident of Indianapolis, Marion County, Indiana, and is the coauthor of the book, Breaking Cardinal Rules: Basketball and the Escort Queen.
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 2 of 12 PageID #: 2 3. Shunnarah is a resident of Louisville, Jefferson County, Kentucky, with his principal place of business for the practice of law located at 239 South Fifth Street, Suite 1800, Louisville, Jefferson County, Kentucky 40202. 4. White is a resident of Louisville, Jefferson County, Kentucky, with his principal place of business for the practice of law located at 734 South First Street, Louisville, Jefferson County, Kentucky 40202. VENUE AND JURISDICTION 5. This Court has diversity subject matter jurisdiction over this lawsuit pursuant to 28 U.S.C. 1332(a)(1) because the amount in controversy is in excess of $75,000, exclusive of interest and costs, and is between Plaintiffs and Defendants, who are citizens of different states. 6. This Court has personal jurisdiction over the Defendants because they regularly conduct business in the Commonwealth of Kentucky, as both Shunnarah and White are licensed to practice law in the Commonwealth and have their principal places of business located in Louisville, Jefferson County, Kentucky. 7. Venue is proper in this Court because the parties activities which are material to this litigation are conducted in substantial part in Jefferson County, Kentucky, which is located in the Western District of Kentucky. FACTS 8. On October 22, 2015, Kyle Hornback, with the assistance, and based upon the advice and urging, of Shunnarah, filed a complaint (the Complaint ) against Katina Powell and IBJ Book Publishing in the Jefferson Circuit Court, Division Three 2
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 3 of 12 PageID #: 3 (3), in case number 15-CI-05391, before the Honorable Mitch Perry. A true and accurate copy of the Complaint is attached hereto as Exhibit A. 9. In the Complaint, Kyle Hornback, with the assistance, and based upon the advice and urging, of Shunnarah, asserted causes of action for injunctive relief, negligence per se, intentional interference with contract, intentional interference with economic relations, and civil conspiracy. Kyle Hornback purported to bring her claims as a class action. 10. In the Complaint, Kyle Hornback, with the assistance, and based upon the advice and urging, of Shunnarah, sought injunctive relief ordering IBJ [Book Publishing] to pay any and all monies contractually obligated to Defendant, Katina Powell,... directly to the Jefferson County Receiver s Office until further order of the court. (Complaint, 9.) Kyle Hornback also demanded judgment against the Defendants for compensatory and punitive damages. (Id., p.7.) 11. On the same day that the Complaint was filed, Shunnarah provided interviews to at least two different news outlets and invited any then currently enrolled University of Louisville students to join the lawsuit. 12. Two days later, on October 24, 2015, Shunnarah updated the cover photo and profile photo of his Facebook profile. The updated cover photo included Shunnarah s picture, his name, the words Accident & Injury Law, the phone number 502-587-7919, website address Shunnarahlaw.com, and the words This is an advertisement. Shunnarah also added a new reference on his profile to attending the University of Louisville School of Law. 3
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 4 of 12 PageID #: 4 13. Upon information and belief, Shunnarah changed his Facebook cover photo and profile photo in an effort to capitalize upon the media attention that the filing of the Complaint generated. 14. On November 9, 2015, Kyle Hornback, Jamie Smith, Dillion Hornback, Rebecca Sommer, Jemiah Nash, Marquease Richardson, Precious Burnley, Shinita Martin, and Dolly Bolden, with the assistance of Shunnarah and White, filed a first amended complaint (the First Amended Complaint ) against Katina Powell, IBJ Book Publishing, and Cady. A true and accurate copy of the First Amended Complaint is attached hereto as Exhibit B. 15. The First Amended Complaint included 24 separate counts, including 12 claims asserted by Kyle Hornback, Jamie Smith, Dillion Hornback, and Rebecca Sommer for negligence per se, intentional interference with contract, and intentional infliction of emotional distress/outrage. Kyle Hornback, Jamie Smith, Dillion Hornback, and Rebecca Sommer purported to bring their claims as a class action. (First Amended Complaint, 116.) 16. In the First Amended Complaint, Kyle Hornback, Jamie Smith, Dillion Hornback, and Rebecca Sommer, with the assistance and urging of Shunnarah and White, ratcheted up the request for injunctive relief, asking the Court to direct Powell, IBJ Book Publishing, and Cady to withdraw any and all sales of the book, Breaking Cardinal Rules: Basketball and the Escort Queen (the Book ) from all sales venues. (First Amended Complaint, 113.) 4
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 5 of 12 PageID #: 5 17. Furthermore, in the First Amended Complaint, Kyle Hornback, Jamie Smith, Dillion Hornback, and Rebecca Sommer, with the assistance and urging of Shunnarah and White, demanded judgment from the Defendants, jointly and severally, for compensatory and punitive damages. (First Amended Complaint, p. 28.) 18. On November 18, 2015, Kyle Hornback, Jamie Smith, Dillion Hornback, Rebecca Sommer, Olivia Carrico, Jemiah Nash, Marquease Richardson, Precious Burnley, Shinita Martin, Dolly Bolden, and Sade Simril, with the assistance, and based upon the advice and urging, of Shunnarah and White, filed a second amended complaint (the Second Amended Complaint ) against Katina Powell, IBJ Book Publishing, and Cady. A true and accurate copy of the Second Amended Complaint is attached hereto as Exhibit C. 19. The Second Amended Complaint included 35 separate counts, including 15 claims by Kyle Hornback, Jamie Smith, Dillion Hornback, Rebecca Sommer, and Olivia Carrico (collectively the Students ) for negligence per se, intentional interference with contract, and intentional infliction of emotional distress/outrage. Once again, the Students purported to bring their claims as a class action. (Second Amended Complaint, 136.) 20. In their Second Amended Complaint, the Students, inter alia, with the assistance, and based upon the advice and urging, of Shunnarah and White, again included a count for injunctive relief, asking the Court to direct Powell, IBJ Book Publishing, and Cady to withdraw any and all sales of the Book from all sales venues. (Second Amended Complaint, 133.) 5
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 6 of 12 PageID #: 6 21. In the Second Amended Complaint, the Students, with the assistance and urging of Shunnarah and White, again demanded judgment from the Defendants, jointly and severally, for compensatory and punitive damages. (Id., p. 32.) 22. On December 22, 2015, IBJ Book Publishing and Cady filed motions to dismiss the Students claims. In addition to challenging the Court s jurisdiction over IBJ Book Publishing and Cady, both motions definitively set forth why the Students did not have standing to assert their causes of action against IBJ Book Publishing and Cady. True and accurate copies of the motions to dismiss are attached hereto, respectively, as Exhibits D and E. 23. On February 3, 2016, the Students, through Shunnarah and White, filed their response in opposition to IBJ Book Publishing s and Cady s motions to dismiss. A true and accurate copy of the response in opposition is attached hereto as Exhibit F. 24. In the response in opposition, the Students, through Shunnarah and White, failed to identify any case law supporting their claim to relief against IBJ Book Publishing and Cady. 25. Also on February 3, 2016, officials from the University of Louisville announced that the University of Louisville was self-imposing a postseason ban on its men s basketball team for the 2015-2016 season. During the announcement, University of Louisville President James Ramsey stated that the University of Louisville determined that it was reasonable to conclude that violations had occurred in the men s basketball program in the past. Despite this admission, the Students did not retract their claims. 6
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 7 of 12 PageID #: 7 26. On February 19, 2016, IBJ Book Publishing and Cady filed a reply in support of their motions to dismiss, reaffirming the fact that the Students failed to plead any cognizable causes of action. A true and accurate copy of the reply in support of the motion to dismiss is attached hereto as Exhibit G. 27. On February 22, 2016, the Students, through Shunnarah and White, sought to double down on their baseless claims against IBJ Book Publishing and Cady by filing a motion for leave to file a third amended complaint (the Third Amended Complaint ). A true and accurate copy of the motion for leave to file a third amended complaint and accompanying third amended complaint is attached hereto, collectively, as Exhibit H. 28. The Third Amended Complaint increased the number of counts pleaded by the Students against IBJ Book Publishing and Cady from 15 counts to 20 counts, and added IBJ Corporation and Michael Maurer as defendants. Once again, the Students purported to bring their claims as a class action. (Third Amended Complaint, 199.) 29. In the Third Amended Complaint, the Students, and their counsel Shunnarah and White, ignored the fact that University of Louisville officials had acknowledged that its investigation had identified violations by its basketball program. Rather, the Students continued to allege that statements in the Book were false. (Id., 25, 26.) 30. As with the previous versions of its pleading, the Students, through the assistance, advice, and urging of Shunnarah and White, again sought injunctive relief directing IBJ Book Publishing and Cady to withdraw any and all sales of the Book from 7
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 8 of 12 PageID #: 8 all sales venues. (Id., 196.) The Students, with the assistance and urging of Shunnarah and White, also demanded judgment against the Defendants, jointly and severally, for compensatory and punitive damages. (Id., p.45.) 31. On February 29, 2016, the Students, through Shunnarah, filed their surreply in opposition to IBJ Book Publishing s and Cady s motions to dismiss. A true and accurate copy of the sur-reply in opposition to the motions to dismiss is attached hereto as Exhibit I. 32. In the sur-reply, the Students continued to assert that IBJ Book Publishing and Cady had committed tortious conduct against the Students. (Plaintiffs sur-reply in opposition to motions to dismiss, p.1.) 33. On March 3, 2016, IBJ Book Publishing and Cady filed their response to the motion for leave to amend, setting forth the abusive nature of the Third Amended Complaint and warning the Students and their counsel that they were misusing the judicial system. A true and accurate copy of the response to the motion for leave to file third amended complaint is attached hereto as Exhibit J. 34. Rather than withdrawing the Students meritless claims, the Students, Shunnarah, and White stood by them and did not voluntarily withdraw them. 35. On April 29, 2016, the trial court issued its opinion and order, dismissing the Students claims. The Jefferson Circuit Court recognized that the Students claims would drastically expand the avenues of civil liability and recovery in the Commonwealth of Kentucky and that their putative claim has heretofore not been 8
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 9 of 12 PageID #: 9 recognized by Kentucky courts. A true and accurate copy of the Jefferson Circuit Court s opinion and order is attached hereto as Exhibit K. COUNT I ABUSE OF PROCESS 36. IBJ Book Publishing and Cady incorporate by reference herein the allegations set forth in paragraphs 1 through 35 of this complaint. 37. The claims asserted by the Students, based upon the advice, assistance, and urging of Shunnarah and White, were motivated by an ulterior purpose, namely to unlawfully restrain the First Amendment rights of IBJ Book Publishing and Cady. 38. Upon information and belief, Shunnarah and White were also motivated by the desire to extort a monetary settlement and gain notoriety for their clients and themselves. 39. By filing various pleadings despite the lack of any cognizable basis for the Students claims, Shunnarah and White intended to use the burden and expense of judicial proceedings to pressure IBJ Book Publishing and Cady into taking action beyond what Shunnarah and White could legally obtain by a valid action. 40. By overstating the Students claims to assert non-cognizable causes of action against IBJ Book Publishing and Cady and by seeking injunctive relief and damages to which the Students had no right, Shunnarah and White participated in a willful act in the use of the process that was not proper in the regular conduct of the proceeding, as the aforementioned actions were intended to coerce IBJ Book Publishing and Cady to gain a collateral advantage for the Students, Shunnarah, and White. 9
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 10 of 12 PageID #: 10 41. The actions of Shunnarah and White amount to an abuse of process, for which IBJ Book Publishing and Cady have incurred damages, including but not limited to attorney s fees and costs in excess of One Hundred Fifty Thousand Dollars ($150,000.00) in their defense against the Students claims. 42. Shunnarah and White, in abusing the process of the Kentucky trial court, have acted toward IBJ Book Publishing and Cady with oppression or malice, or in a grossly negligent or reckless manner, thus entitling IBJ Book Publishing and Cady to recover punitive damages. COUNT II WRONGFUL USE OF CIVIL PROCEEDINGS 43. IBJ Book Publishing and Cady incorporate herein by reference the allegations set forth in paragraphs 1 through 42 of this complaint. 44. The Students, Shunnarah, and White initiated and pursued the Students claims in this action without probable cause. 45. The Students, Shunnarah, and White did not reasonably believe the facts they alleged in support of the Students claims. 46. Under the facts as alleged in their state court pleadings, the Students, Shunnarah, and White did not have a reasonable belief that the Students claims were valid under prevailing Kentucky law. 47. Shunnarah and White initiated and maintained the Students claims primarily for a purpose other than securing a proper adjudication of a valid claim. 48. The Jefferson Court Court dismissed the Students claims, thus resolving their claims in favor of IBJ Book Publishing and Cady. 10
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 11 of 12 PageID #: 11 49. In initiating and maintaining the Students claims without probable cause and for an improper purpose, the actions of Shunnarah and White amount to a wrongful use of civil proceedings, with regard to which IBJ Book Publishing and Cady have incurred damages, including but not limited to attorney s fees and costs in excess of One Hundred Fifty Thousand Dollars ($150,000.00) in their defense against the Students claims. 50. Shunnarah and White, in wrongfully using those civil proceedings, acted toward IBJ Book Publishing and Cady with oppression or malice, or in a grossly negligent or reckless manner, thus entitling IBJ Book Publishing and Cady to recover punitive damages. WHEREFORE, IBJ Book Publishing and Cady, by counsel, respectfully request that the Court enter judgment in their favor and against Shunnarah and White on their claims; that the Court enter a monetary judgment against Shunnarah and White for compensatory damages incurred by IBJ Book Publishing and Cady as a result of the Defendants abuse of process and wrongful use of civil proceedings; for an award of punitive damages; that the Court award IBJ Book Publishing and Cady their reasonable costs, including attorney s fees; and that the Court award all other appropriate relief. JURY DEMAND IBJ Book Publishing and Cady request a trial by jury on all claims so triable. 11
Case 3:16-cv-00664-CRS Document 1 Filed 10/19/16 Page 12 of 12 PageID #: 12 Respectfully submitted, /s/ Aaron J. Silletto Aaron J. Silletto, Esq. Goldberg Simpson, LLC Norton Commons 9301 Dayflower Street Prospect, Kentucky 40059 asilletto@goldbergsimpson.com PH: (502) 589-4440 / FAX: (502) 581-1344 Counsel for Plaintiffs 12