IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOHN RAMSEY, PATSY RAMSEY and BURKE RAMSEY, a minor, by his next friends and natural parents, JOHN RAMSEY and PATSY RAMSEY, Plaintiffs,
vs.
FOX NEWS NETWORK, L.L.C., d/b/a Fox News Channel, Defendant.
CASE NO.: 1 03 CY-3976 (TWT)
DECLARATION OF DORI ANN HANSWIRTH IN FURTHER SUPPORT OF DEFENDANT'S MOTION TO DISMISS
I, DORI ANN HANSWIRTH, declare as follows:
1. I am a member of the law firm Hogan & Hartson L.L.P., counsel for defendant Fox News Network, LLC (the "Fox News Channel" or "Defendant") in this action. I have personal knowledge of the facts set forth in this Dec1aration and, if called as a witness, I could and would testify competently to such facts under oath. I submit this Declaration in further support of the Fox News Channel's motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for an order dismissing this action in its entirety for failure to state a valid claim for relief.
2. Attached hereto as Exhibit A is a copy of the September 15, 2000 Affidavit of John Ramsey filed in Otworth v. Ramsey et aI., Civil Action File No. 1-00-CV-2023-CAM, on file in the United States District Court for the Northern District of Georgia.
3. Attached hereto as Exhibit B is a copy of Defendants' Motion to Dismiss and Memorandum of Law in Support of Defendants' Motion to Dismiss filed in Otworth v. Ramsey et al., Civil Action File No. 1-00-CV-2023-CAM, on file in the United States District Court for the Northern District of Georgia.
I declare under penalty of perjury under the laws of the United States of America and the State of New York that the foregoing is true and correct and that this Declaration was executed on July 1, 2004 at New York, New York.
DORI ANN HANSWIRTH
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CLARENCE OTWORTH, Plaintiff,
vs.
JOHN BENNETT RAMSEY, PATRICIA ANN RAMSEY, BURKE HAMILTON RAMSEY and JONBENET RAMSEY CHILDREN'S FOUNDATION, Defendants.
CIVIL ACTION
FILE NO. 1-00-CV-2023-CAM
NOTICE OF FILING
COMES NOW John Bennett Ramsey, Patricia Ann Ramsey, Burke Hamilton Ramsey and JonBenet Ramsey Children/s Foundation, Defendants in the above-captioned action, and hereby notice the filing of the attached Affidavit of John Ramsey dated September 15, 2000.
This 15th day of September, 2000.
L. LIN WOOD, P.C.
L. Lin Wood
Ga. State Bar No. 774588
Suite 2140
The Equitable Building
100 Peachtree Street, NW
Atlanta, Georgia 30303
404/522-1713
Attorney for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CLARENCE OTWORTH, Plaintiff,
vs.
JOHN BENNETT RAMSEY, PATRICIA ANN RAMSEY, BURKE HAMILTON RAMSEY and JONBENET RAMSEY CHILDREN'S FOUNDATION, Defendants.
CIVIL ACTION
FILE NO. 1-00-CV-2023-CAM
AFFIDAVIT OF JOHN RAMSEY
STATE OF GEORGIA,
COUNTY OF FULTON.
Personally appeared before the undersigned officer duly authorized by law to administer oaths, JOHN RAMSEY, who being first duly sworn, deposes and says as follows:
1. My name is JOHN RAMSEY and I am a named Defendant in this action. I am over twenty-one (21) years of age and I am competent in all respects to testify as to the matters set forth in this Affidavit, and do so from personal knowledge.
2. As of the date of this Affidavit, no person has been arrested for the December 1996 murder of my daughter JonBenet Ramsey.
3. As of the date of this Affidavit, no person has been indicted for the December 1996 murder of my daughter JonBenet Ramsey.
4. As of the date of this Affidavit, no person has been convicted for the December 1996 murder of my daughter JonBenet Ramsey.
5. In 1998 and 1999, officials with the City of Boulder, Colorado Police Department publicly stated that my son, Burke Ramsey, now age 13, was a witness, not a suspect, in connection with the investigation into the murder of my daughter, JonBenet Ramsey.
6. On May 20, 1999, the Boulder County District Attorney issued an official, public statement that Burke was not a
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suspect in the death of his sister, JonBenet Ramsey, and was not being looked at as a possible suspect.
7. In its December 12, 1999 edition, the Harrisburg Patriot News published an article about Michael Kane, the grand jury prosecutor in the investigation into the murder of my daughter. Mr. Kane was quoted as follows:
"One of the more horrendous mistakes by the media," Kane said, "was the story by a supermarket tabloid, The Star, that branded, Burke, as the killer." Earlier this month, the Ramseys filed a $25 million libel suit against the paper. Kane recalled that when the story first came out last May, it troubled the prosecution. And when the story began getting picked up by other newspapers, they knew they had to do something.
"Alex Hunter and I decided there was no basis for that speculation and no evidence to support it, and we issued a press release to put it to rest," Kane said. "I think it's horrible that a 12-year-old kid would have a finger pointed at him with no evidence to support it and have to see his picture on the cover of tabloids every time he's in a supermarket saying that he killed his sister." [Emphasis supplied]
8. My son, Burke Ramsey, has been officially cleared of any
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involvement in connection with the death of his sister.
FURTHER AFFIANT SAYETH NOT.
This 15th of September, 2000.
Signed: John Ramsey
Sworn to and subscribed before me this 15th day of September, 2000.
Sharon Watters
Notary Public
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CLARENCE OTWORTH, Plaintiff,
vs.
JOHN BENNETT RAMSEY, PATRICIA ANN RAMSEY, BURKE HAMILTON RAMSEY and JONBENET RAMSEY CHILDREN'S FOUNDATION, Defendants.
CIVIL ACTION
FILE NO. 1-00-CV-2023-CAM
CERTIFICATE OF SERVICE
I hereby certify that I have this date served a copy of the within and foregoing NOTICE OF FILING upon all counsel by depositing same in the United States Mail, postage prepaid and addressed to:
CLARENCE OTWORTH, Pro se
P.O. Box 7035
Clearwater, Florida 33758
This 15th day of September, 2000.
L. Lin Wood
Attorney for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CLARENCE OTWORTH, Plaintiff,
vs.
JOHN BENNETT RAMSEY, PATRICIA ANN RAMSEY, BURKE HAMILTON RAMSEY and JONBENET RAMSEY CHILDREN'S FOUNDATION, Defendants.
CIVIL ACTION
FILE NO. 1-00-CV-2023-CAM
CERTIFICATE OF SERVICE
I hereby certify that I have this date served a copy of the within and foregoing MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS upon all counsel by depositing same in the United States Mail, postage prepaid and addressed to:
CLARENCE OTWORTH, Pro Se
P. O. Box 7035.
Clearwater, Florida 33758
This 15th day of September, 2000.
L. Lin Wood
Attorney for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORIA
ATLANTA DIVISION
CLARENCE OTWORTH, Plaintiff,
vs.
JOHN BENNETT RAMSEY, PATRICIA ANN RAMSEY, BURKE HAMILTON RAMSEY and JONBENET RAMSEY CHILDREN'S FOUNDATION, Defendants.
CIVIL ACTION
FILE NO. 1-00-CV-2023-CAM
DEFENDANTS' MOTION TO DISMISS
COME NOW John Bennett Ramsey, Patricia Ann Ramsey, Burke Hamilton Ramsey and JonBenet Ramsey Children's Foundation, Defendants in the above-captioned action, and pursuant to Fed. R. Civ. P. 12(b)(6), hereby respectfully move this Court for an order dismissing Plaintiff's Complaint for failure to state a claim upon which relief can be granted. In support of this motion, Defendants rely upon the following:
(a) All pleadings filed in this action; and
(b) The memorandum filed by Defendants pursuant to L.R.
7.1(A).
This 15th day of September, 2000.
L. LIN WOOD, P.C.
L. Lin Wood
Ga. State Bar No. 774588
Suite 2140
The Equitable Building
100 Peachtree Street, NW
Atlanta, Georgia 30303
404/522-1713
Attorney for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CLARENCE OTWORTH, Plaintiff,
vs.
JOHN BENNETT RAMSEY, PATRICIA ANN RAMSEY, BURKE HAMILTON RAMSEY and JONBENET RAMSEY CHILDREN'S FOUNDATION, Defendants.
CIVIL ACTION
FILE NO. 1-00-CV-2023-CAM
CERTIFICATE OF SERVICE
I hereby certify I that I have this date served a copy of the within and foregoing DEFENDANTS' MOTION TO DISMISS upon all counsel by depositing same in the United States Mail, postage prepaid and addressed to:
CLARENCE OTWORTH, Pro Se
P.O. Box 7035
Clearwater, Florida 33758
This 15th day of September, 2000.
L. Lin Wood
Attorney for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF THE GEORGIA
ATLANTA DIVISION
CLARENCE OTWORTH, Plaintiff, )
vs.
JOHN BENNETT RAMSEY, PATRICIA ANN RAMSEY, BURKE HAMILTON RAMSEY and JONBENET RAMSEY CHILDREN'S FOUNDATION, Defendants.
CIVIL ACTION
FILE NO. 1-00-CV-2023-CAM
MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS
Pursuant to Local Rule 7.1, Defendants John Bennett Ramsey, Patricia Ann Ramsey, Burke Hamilton Ramsey and JonBenet Ramsey Children's Foundation, file this Brief in Support of their Motion to Dismiss Plaintiff's Complaint.
I. INTRODUCTION AND BACKGROUND.
The filing of this Complaint, premised on false and unsupportable allegations that Defendant Burke Hamilton Ramsey (hereinafter "Defendant Burke Ramsey") raped and murdered his sister, JonBenet Ramsey, is an egregious abuse of this Court's processes and the Ramsey family. (Footnote 1.) While moving at this time for
-------------------------------
(Footnote 1.) Defendant Burke Ramsey has been officially cleared in the JonBenet Ramsey investigation. Paragraphs 5,6,7 and 8 of the September 15, 2000 Affidavit of John Ramsey.
-------------------------------
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a dismissal of the Complaint for failure to state a claim upon which relief can be granted, Defendants also urge this Court to sanction Plaintiff Clarence Otworth for his misconduct. (Footnote 2.)
Plaintiff has filed this action claiming that Defendants are liable to him for breach of contract for failing to pay him a reward offered by The JonBenet Ramsey Children's Foundation (hereinafter "the Foundation") one of the Defendants herein, in connection with the December 1996 murder of JonBenet Ramsey. Paragraphs 9,10 and 14 Plaintiff's Complaint for Breach of Unilateral Contract (hereinafter "Plaintiff's Complaint"). As background, Plaintiff initially describes the Foundation's offer as "a $100,000 reward for information leading to the arrest and conviction of the murderer of JonBenet." Paragraph 9 of Plaintiff's Complaint. However, Plaintiff's contending that the breach of contract arose out of a subsequent offer by the Foundation offering a "$100,000 Reward for information leading to the arrest and indictment of the murderer of JonBenet Ramsey." Paragraphs 10,14 and 15 of Plaintiff's Complaint and Exhibit A attached thereto.
-------------------------------
(Footnote 2.) This Court has the authority under Fed. R. Civ. P. 11(c)(1)(B) to enter an order on its own initiative directing Plaintiff to show cause why he has not violated the provisions of Fed. R. Civ. P. 11(b).
-------------------------------
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Plaintiff does not contend that Defendant John Bennett Ramsey (hereinafter "Defendant John Ramsey"), Defendant Patricia Ann Ramsey (hereinafter "Defendant Patsy Ramsey") or Defendant Burke Ramsey (Footnote 3) made any offer of a reward in connection with the murder of JonBenet Ramsey.
Plaintiff does not allege that anyone has been arrested, indicted or convicted for the murder of JonBenet Ramsey because in fact no such arrest, indictment or conviction has occurred. (Footnote 4.)
-------------------------------
(Footnote 3.) The only allegations of the Complaint that address Defendant Burke Ramsey are the vicious lies set forth in paragraphs 6 and 7 of the Complaint wherein Plaintiff asserts that Burke Ramsey, now 13, but age 9 at the time, raped and murdered his 6-year old sister.
(Footnote 4.) Paragraphs 2,3, and 4 of the September 15, 2000 Affidavit of John Ramsey. Further, due to the unprecedented media coverage of the investigation into the murder of JonBenet Ramsey, this Court can take judicial notice of the fact that no arrest, indictment or conviction has occurred in the case. A court may consider not only exhibits to the complaint, but also matters subject to judicial notice. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F. 2d 1542, 1555 n.19 (9th Cir. 1990); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1327, at 762-63 (2d ed. 1990) ("when [the] plaintiff fails to introduce a pertinent document as part of his pleading, [the] defendant may introduce the exhibit as part of his motion attacking the pleading"); Bryant, 187 F.3d at 1280-81 (discussing "incorporation by reference doctrine" and holding that "district court erred in striking certain documents that were attached to
Defendants' motion to dismiss"). Where the exhibits attached to the Complaint and any other documents appropriately considered by the Court contradict the allegations in the complaint and reveal that no cause of action lies, the exhibits and documents control and the claims must be dismissed. See Quiller, 727 F.2d at 1069.
-------------------------------
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Plaintiff's alleged efforts spent in investigating the crime and notification to Defendants that he had "solved the murder" (Footnote 5.) fail to state a claim for breach of contract as a matter of law.
II. ARGUMENT AND CITATION OF AUTHORITY.
As distasteful as it is in this case to do, the Court must accept Plaintiff's factual allegations as true and construe the complaint In the light most favorable to Plaintiff. Blumel v. Mylander, 919 F. Supp. 423, 426 (M.D. Fla. 1996). However, under Fed. R. Civ. P. 12(b)(6), a complaint must be dismissed where as here, assuming the truth of all material factual allegations, the pleadings or other documents properly before the court establish that Plaintiff can prove no set of facts in support of the claims in his complaint. See South Fla. Watr Management Dist. v. Mantalvo, 84 F.3d 402, 406 (llth Cir. 1996); Gross v. Medaphis Corp., 977 F. Supp. 1463, 1465 (N.D. Ga. 1997).
Plaintiff's Complaint is based entirely upon his claim that he has satisfied the terms of the following reward offer published in a Boulder, Colorado newspaper:
-------------------------------
(Footnote 5.) Paragraph 11 of Plaintiff's Complaint.
-------------------------------
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"$100,000 Reward
for information leading to the arrest
and indictment of the murderer of
JonBenet Ramsey.
On Christmas night, December 25-26, 1996, JonBenet Ramsey
was murdered in her home by an unknown person or persons.
Anyone with information concerning an adult male
approaching young children in Boulder in late 1996, please call.
The family urgently requests that if you have any Knowledge
Which can assist in solving this crime, please contact
303-443-3535. Reward offered by The JonBenet Ramsey Children's Foundation Boulder, Colorado." [Exhibit A to Plaintiff's Complaint].
Allegedly acting in response to this published reward offer, Plaintiff claims to have investigated the crime over a period of three years and asserts that he is entitled to the reward because he "solved the murder and notified Defendants that Defendant Burke Ramsey was the killer. (Footnote 6.)
A reward offer is governed by contract law. See Consolidated Freightways Corp. of Delaware v. Williams, 139 Ga. App. 302, 228 S.E.2d 230 (1976).
"It is familiar law that an offer of reward conveys no right beyond the specific terms of the offer; that it may be withdrawn at any time; and that, unless prior to the
-------------------------------
(Footnote 6.) Paragraph 11 of Plaintiff's Complaint.
-------------------------------
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withdrawal something has been done to complete a contract, or settle and establish a right under the offer, a claimant takes nothing by reason thereof ... Whoever claims under such an offer must bring himself within its terms."
United States v. Connor, 138 U.S. 61, 65, 11 S.Ct. 229, 239 (1891).
Here, the Complaint conclusively establishes that Plaintiff has not satisfied the terms of the Foundation's original or amended reward offer. Plaintiff has not alleged and cannot allege that he provided "information leading to the arrest and indictment of the murderer of JonBenet Ramsey" as specifically required by the terms of the reward offer. Merely stating that he "notified the Defendants" of the identity of the killer does not meet the plain and specific terms of the reward offer and Plaintiff's Complaint must be dismissed.
Plaintiff has an established history of frivolously abusing the judicial system in a pro se attempt to claim a reward in a highly publicized murder case. (Footnote 7.) In Otworth v. The Florida Bar, 71 F. Supp. 2d 1209 (M.D. Fla. 1999), Plaintiff's pro se breach of contract action to collect a $1,000,000
-------------------------------
(Footnote 7.) Plaintiff also has an established history of pursuing other frivolous claims pro se in a bad faith abuse of the judicial system. Otworth v. Southern Pacific Transportation Co., 166 Ca1. App. 3d 452, 212 Cal. Rptr. 743 (1985).
-------------------------------
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reward from publisher Larry Flynt for "information leading to the arrest and conviction of anyone involved in the planning and execution of President Kennedy's murder" was dismissed as a matter of law because, as here, Plaintiff did not satisfy the conditions of the reward offer. (Footnote 8.)
Defendant Flynt's original reward offer contains specific requirements which must be met before the individual claiming the reward will be granted the relief requested. Plaintiff has completely failed to allege satisfaction of the requirements contained within Defendqnt Flynt's original reward offer
...
Rewards are contractual in claim entitlement and to• the Plaintiff must, in the least, allege satisfaction of theterms of the reward offer.
Id at 1216, 1217.
III. CONCLUSION.
Plaintiff's Complaint contains no allegations to support a breach of contract claim against Defendant John Ramsey, Defendant Patsy Ramsey or Defendant Burke Ramsey. With respect to the Foundation, Plaintiff's Complaint fails to allege that the terms of the reward offer have been satisfied. For these
-------------------------------
(Footnote 8.) In the action against Larry Flynt, Plaintiff made an almost identical allegation as here in claiming a right to the reward for merely submitting information.
-------------------------------
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reasons, Defendants respectfully request that Plaintiff's Complaint be dismissed and that the Court order Plaintiff to show cause why he should not be sanctioned pursuant to Fed. R. Civ. P. 11.
This 15th day of September, 2000.
L. LIN WOOD, P.C.
L. Lin Wood
Ga. State Bar No. 774588
Suite 2140
The Equitable Building
100 Peachtree Street, NW
Atlanta, Georgia 30303
404/522-1713
Attorney for Defendants
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