Joe Calvert, BPR 024259
Calvert & Associates
1137 GreeenLea Blvd, B29
Gallatin, Tennessee 37066
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
JAMES KENTON, ) Case No.: 3:21-cv-770
Plaintiff, ) Honorable Aleta Trauger
vs. ) DEFAMATION
WTVF Channel 5 and Jane Does one through )
ten inclusive being corporate or fictitious ) FALSE LIGHT INVASION OF PRIVACY
names or a parent company unknown to )
Plaintiff or an undisclosed division of Scripps ) TORTIOUS INTERFERENCE WITH
Media Inc. ) BUSINESS RELATIONSHIPS
Defendants. ) NEGLIGENT HIRING, SUPERVISION, OR
) RETENTION OF EMPLOYEE
) PRIMA FACIE TORT
) CIVIL CONSPIRACY
) GROSS FRAUD
) GROSS NEGLIGENCE
) INTENTIONAL INFLICTION OF
) EMOTIONAL DISTRESS
DEMAND FOR TRIAL BY JURY
- That Plaintiff submits his First Amended Complaint pursuant to Federal Rules of Civil Procedure Rule 15(a).
- “Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend a pleading 'once as a matter of course at any time before a responsive pleading is served.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). A motion to dismiss is not a responsive pleading under Rule 15(a). Centifanti v. Nix, 865 F.2d 1422, 1431 n.9 (3d Cir. 1989), citing Reuber v. United States, 750 F.2d 1039, 1062 n. 35 (D.C. Cir. 1984); McDonald v. Hall, 579 F.2d 120, 121 (1st Cir. 1978). See also 2 James Wm. Moore, et al., Moore's Federal Practice 12.34 (3d ed. 2000) (“Because a motion to dismiss for failure to state a claim is not a 'responsive pleading,' a plaintiff may amend the complaint once without leave, even during the pendency of a motion to dismiss, if the defendant has not yet served an answer.”)
- Defendant's pending motion to dismiss should be denied because the Rules of Civil Procedure “encourage an opportunity to amend before dismissal.” 2 James Wm. Moore, et al., Moore's Federal Practice 12.34 (3d ed. 2000). A dismissal for failure to state a claim is on the merits. See Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980). To dismiss plaintiffs' claims on the merits, without first permitting an opportunity to amend, would constitute a forfeiture resulting simply from noncompliance with the Rules of Civil Procedure.
- When moving to dismiss under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6), the general rule is that a court may not consider documents that are extrinsic to the complaint. Indeed, under FRCP 12(d), when extrinsic evidence is presented to, and not excluded by the court, the 12(b)(6) motion should normally be converted to a motion for summary judgment. The rationale behind FRCP 12(d) is that a plaintiff may lack notice of extrinsic documents at such an early stage in the litigation. That any exception requires documents to be current, unmodified, and contain accurate information and may not address issues outside of the four corners of the Complaint. A Motion for Summary Judgment prior to the completion of discovery also violates the rules and directive of this Honorable Court and should be denied.
- The Defendant has yet to interpose an Answer despite a generous extension of time granted by this Court.
- An Answer would not have prejudiced any motion.
- Defendant has not complied with mandatory entity disclosure pursuant to the Federal Rules of Civil Procedure 7.1 and Local Rule 7.02.
- The Defendant is default of pleading.
FIRST AMENDED COMPLAINT
Comes now James Kenton, an individual by and through his counsel Joe Calvert, Calvert & Associates for his First Amended Complaint states the following as fact except for those items designated as upon information and belief alleges the following:
- Plaintiff is an individual who resides the State of North Carolina.
- Defendant is a commercial broadcasting enterprise located at 474 James Robertson Parkway Nashville, Tennessee and may be an unknown form of independent business enterprise or an asset of an unknown business entity. Defendant has not complied with mandatory entity disclosure pursuant to the Federal Rules of Civil Procedure 7.1 and Local Rule 7.02.
II. JURISDICTION AND VENUE
- Federal jurisdiction is pursuant 28 U.S. Code § 1332 on the basis of diversity of citizenship.
- Supplemental jurisdiction is pursuant to 28 U.S.C. § 1367.
III. GENERAL FACTUAL ALLEGATIONS
- That Plaintiff is not a business entity.
- That Plaintiff was arrested on August 21, 2020 for Home Improvement Fraud >$1000 < $2500 pursuant to Tennessee Code § 39-14-154.
- That the charges were dismissed.
- That no additional criminal charges have been brought against the Plaintiff.
- That the charges were dismissed before the expiration of one year on August 12, 2021 and The State of Tennessee could have proceeded with its frivolous prosecution.
- That the charges were based upon a defective and fraudulent arrest warrant allegedly issued by William Decker Thorogood. Exhibit A.
- That Mr. Kenton was arrested without a signed or “sworn and subscribed” arrest warrant. Exhibit A.
- That the Mount Juliet Police arrested Mr. Kenton at his home without a properly executed warrant. Exhibit B.
- That The Mount Juliet reporting officer, Charles Boston, designated he picked up James Preston Kenton who is not James Patrick Kenton. Exhibit B.
- That the arrest warrant contained nine incidents of perjury by Detective William Decker Thorogood who designated himself as “Prosecutor”. Exhibit A.
- That there is no prosecutorial immunity in the State of Tennessee.
- That upon information and belief there was multiple failures to comply with Tennessee Rules of Criminal Procedure Rule 4 (ARREST WARRANT OR SUMMONS ON A COMPLAINT).
- That on July 14, 2020 weeks prior to the issuance of the alleged arrest warrant or the unexecuted arrest warrant Mr. Thorogood had received written notice from Calvert & Calvert with six attachments placing Mr. Thorogood on notice that the complainant Mr. Roger Stephens had an agreement with a corporate entity. Exhibit C.
- That there was a corporation named Tennessee Metal Roofing Inc. to which Plaintiff was an independent contractor.
- That a roofer is defined as a person who builds or repairs roofs.
- That Plaintiff is not a roofer.
- That Plaintiff was not the incorporator. Exhibit D.
- That Plaintiff was not a shareholder, officer, employee, or director of Tennessee Metal Roofing Inc.
- That Plaintiff as a matter of law did not have any personal liability for a third-party corporation.
- That Plaintiff could not be an “owner” of a corporation as a matter of law.
- That “Law professor Lynn Stout, now of Cornell University, says a corporation is considered by the law to be a person with rights -- and you can't own a person. UCLA law professor Stephen Bainbridge, meanwhile, says a corporation is merely a set of contracts among shareholders, directors, employees and others. “There simply is nothing there that can be owned,” he writes. Bainbridge also points out that if shareholders were truly “owners” of the corporation, they could freely use the corporation's assets. Try buying a share of United Airlines stock and then asking to use a plane.” Citation omitted.
- That on or about July 9, 2020 the law firm of Calvert & Calvert had sent a demand notice for payment to Roger Stephens on behalf of the corporate entity. Exhibit E.
- That upon information and belief Roger Stephens falsely filed a criminal complaint to avoid civil liability.
- That Plaintiff can only speculate as to whether Mr. Stephens provided Mr. Thorogood consideration for the false arrest of Mr. Kenton.
- That Mr. Thorogood ignored the notice and documentation delivered to him on July 14, 2020 provided by Calvert & Calvert and both contradicted and falsified the factual allegations in the arrest warrant affidavit. Exhibit A.
- That according to unexecuted arrest Affidavit, and the subsequently executed arrest warrant, the alleged charges were based upon an “estimate” provided by a “Tennessee Metal Roofing Company”. Exhibit
- That there is no “Tennessee Metal Roofing Company”. Exhibit F.
- That the affiant Mr. Thorogood wrote that the complainant Roger Stephens executed a contract for a metal roof with Tennessee Metal Roofing Company.
- That there is no “Tennessee Metal Roofing Company” with which Mr. Stephens could enter a contract. Exhibit E.
- That affiant Thorogood falsely claimed there was a down payment for $1,190.00
- That no down payment of $1,190.00 was made for a roof to the Plaintiff (“Mr. Kenton”) or any business organization
- That there is no Tennessee Metal Roofing Company to which Mr. Stephens could make a down payment.
- That the alleged victim has never met Mr. Kenton.
- That the alleged victim had never spoken with Mr. Kenton.
- That Mr. Kenton is not the signatory on, or a party to, any contract with Mr. Stephens.
- That the police report of Mr. Stephens did not designate Mr. Kenton as a suspect. Exhibit G.
- That affiant Thorogood claimed that Mr. Stephens was visited by some fantasy “unknown representative” of some non-existent organization. Exhibit A.
- That affiant Thorogood falsely stated that Mr. Stephens mailed “via certified mail” sent a letter to the alleged “company” on May 2, 2020.
- That no letter was sent to anyone or anything of and concerning Mr. Kenton on May 2, 2020.
- That affiant Thorogood, by telephone, stated that he asked Mr. Kenton if he deposited the victim's non-existent check for $1,190.00 which he knew was false because no such check exists.
- That affiant Thorogood falsely quoted Mr. Kenton saying “you're damn right I did and he is not getting his money back.” Exhibit A.
- That affiant Thorogood stated “a judicial subpoena was executed on a business account belonging to "Tennessee Metal Roofing Company” which in accordance with exhibits herein it would not be possible for the non-existent company to have any form of bank account. Exhibit A.
- That upon information and belief there was no judicial subpoena issued to a non-existent company. Exhibit H.
- That in the alternative, if there is a mysterious judicial subpoena it was obtained by fraudulent statements made by Mr. Thorogood.
- That assuming arguendo there was some judicial subpoena, there were no notices as required by law pursuant to Tennessee Code Titles 45-10-106, 45-10-107, and 45-10-11.
- That affiant Thorogood claimed the nonexistent account “was opened by James Kenton” which as a matter of law is impossible.
- That affiant claimed the “The records showed that Mr. Kenton deposited the check” that is not possible based upon the Exhibits attached hereto including the absence of the existence of Tennessee Metal Roofing Company.
- That Mr. Thorogood conveniently or purposefully omitted from the false Arrest Report an element of the statutory requirement to validate arrest or prosecution whereas; Tennessee Code § 39-14-154 (B) states that a violation of subdivision (b)(1)(A) is an offense only if: A copy of the written request for a refund was sent by the residential owner to the consumer protection division of the office of the attorney general. Tennessee Code § 39-14-154 (B) (iii). Exhibit A.
- That Mr. Stephens did not comply with Tennessee Code § 39-14-154 (B) (iii) whereas no copy of the written request for a refund was sent by the residential owner to the consumer protection division of the office of the Attorney General. Exhibit I.
- That Mr. Kenton was denied his right to refuse a pre-trial hearing and to bind the case over to the Grand Jury.
- That pursuant to freedom of information and records requests to the Nashville Metropolitan Police Department, Mr. Thorogood has a history with issues of self-control and that Mr. Thorogood has been disciplined for his inability to control the words he speaks.
- That Mr. Thorogood has an arrest record based upon the absence of self-control, impliedly from substance abuse.
- That Mr. Thorogood perjured a statement to a judge to prove there was probable cause for the arresting Mr. Kenton.
- That a subpoena was issued to Roger Stephens after Mr. Kenton's counsel made an oral request form the Court for permission to issue subpoenas.
- That subpoena requests were granted orally by the General Sessions Court Judge Dianne Turner when requested by Mr. Kenton's attorney.
- That on October 26, 2020 a subpoena was issued to Roger Stephens by the General Sessions Court in Davidson County regarding documents or more accurately non-existent documents of and concerning the charge against Mr. Kenton. Exhibit J.
- That Mr. Stephens did not comply with the subpoena.
- That upon information and belief, not having any documents in support of the allegations in the arrest warrant, the State of Tennessee, Mr. Stephens, and Detective Thorogood would have been subject to civil and criminal actions against each one of them as individuals and collectively as co-conspirators.
- That upon information and belief Mr. Thorogood recruited and conspired with the Defendant's employees to vitiate his crimes and literally create fake news.
- That on November 17, 2020, Defendant's employee Jennifer Krause created, wrote, and published falsified information in writing about the Plaintiff on the website of NewsChannel 5 WTVF a commercial broadcast enterprise.
That Defendant designates they “updated” the published information on March 10, 2021 that by definition means there was publication of new content without any citation to authority, proof, or source reference.
- The update means Defendant changed the story(s) (see footnote 3) and published a different story or different information. Exhibit K.
- That the text of the story reads:
“NASHVILLE, Tenn. (WTVF) - The owner of a Mt. Juliet roofing company who was arrested for fraud has now given up his state roofing license.
James Kenton, the owner of Tennessee Metal Roofing, is currently facing criminal charges for taking a customer's money but not doing the work.
Back in September, the state Contractors Board suspended his license during an emergency meeting after NewsChannel 5 Investigates exposed how Kenton had repeatedly lied on his license application.
The state was set to hold a formal hearing Tuesday afternoon to revoke the license, but Kenton agreed to surrender it ahead of time to avoid the hearing.
NewsChannel 5 Investigates talked with unhappy customers who complained about the company's work or lack of it.
The phone number for Tennessee Metal Roofing now appears to be disconnected.
Meanwhile, Kenton is set to go on trial in March on the criminal charges.
PREVIOUS STORIES ON TENNESSEE METAL ROOFING:
State suspends license of roofing company owner who's facing criminal charges in emergency meeting
Roofer accused of home improvement fraud has history of problems in other states
Did roofer facing fraud charges lie on his state license application? Regulators want to know.
Roofer accused of home improvement fraud has history of problems in other states" Exhibit K.
- That the first of several articles published by Ms. Krause beginning on November 17, 2020 and updated on March 10, 2021 in paragraph one reads: “the owner of a Mt. Juliet Roofing Company who was arrested for fraud has now given up his state roofing license” which is a statement that is false without any citation to authority, proof, or source reference.
- That as noticed in several paragraphs herein Mr. Kenton could not be, and was not, “the owner of a Mt. Juliet Roofing Company.”
- That Defendant ignored several documents, Tennessee case law, and notices that Mr. Kenton was not he owner of a non-existent Mt. Juliet Roofing Company.
- That on November 17, 2020 and updated on March 10, 2021 Defendant also published in the aforementioned forums that " James Kenton, the owner of Tennessee Metal Roofing, is currently facing criminal charges for taking a customer's money but not doing the work" whereas Plaintiff was not an owner, not a roofer doing the physical labor, and not capable of taking a customer's money when he personally did not have any customers.
- That Defendant proceeded to publish in the same story and update that “Back in September, the state Contractors Board suspended his license during an emergency meeting after NewsChannel 5 Investigates exposed how Kenton had repeatedly lied on his license application” and that “ The state was set to hold a formal hearing Tuesday afternoon to revoke the license, but Kenton agreed to surrender it ahead of time to avoid the hearing”
- That Defendant subsequently falsely published an addendum suggesting that there was fraud in Plaintiff's personal application for a Home Improvement License That the first of several articles published by Ms. Krause beginning on November 17, 2020 and updated on March 10, 2021 in paragraph one reads: “the owner of a Mt. Juliet Roofing Company who was arrested for fraud has now given up his state roofing license” which is a statement that is not accurate according to the Board's attorney.
- That Plaintiff applied for a license so that he could provide similar services to other companies similar to Tennessee Metal Roofing Inc. or start his own home improvement business when he was the owner of a home improvement license and his own unaffiliated business insurance.
- That in another updated March 10, 2021 article Defendant published without any source, citation, or authority. “What he didn't realize was that call would lead to the arrest of one of the company's principals. James Patrick Kenton of Mt. Juliet is now charged with home improvement fraud.”
- That Mr. Kenton was not a principal of any roofing company at the time of arrest and subjected him to extreme ridicule where he was ostracized and shunned by the community while simultaneously having his business character impugned in publications to thousands of people, people with whom he conducted business, neighbors, friends and family members as if he a done something shameful or wrong.
- That in the same new March 10, 2021 updated publication Defendant falsely wrote: “Stephens did however cancel the contract in writing by certified mail which is all the law requires” directly and falsely stating that the non-principle Mr. Kenton did something illegal.
- That the law pursuant to The Tennessee Consumer Protection Act, Tenn. Code Ann. § 62- 6-603, requires that a notice by certified mail is required to be mailed within the statutory three-day cancellation period, that Mr. Stephen's agreement page three that provided him a form containing the mandatory statutory language to cancel, and never sent anything compliant to the corporation (to which Mr. Kenton was an independent contractor) within the three-day period.
- That another provision of the law pursuant to Tennessee Code § 39-14-154 (B) states that a violation of subdivision (b)(1)(A) is an offense only if: A copy of the written request for a refund was sent by the residential owner to the consumer protection division of the office of the attorney general. Tennessee Code § 39-14-154 (B) (iii). Exhibit I.
- That when Defendant published: "Stephens did however cancel the contract in writing by certified mail which is all the law requires" it was a false statement that by implication and innuendo implied that the Defendant committed a criminal act.
- That Defendant's false publication “Stephens did however cancel the contract in writing by certified mail which is all the law requires” has no value to the public-at-large.
- That when Defendant published: “Stephens did however cancel the contract in writing by certified mail which is all the law requires” it misleading to the public as to the law and the requirements to cancel a contract.
- That Ms. Krause was hired with a sufficient education to report on issues of law, and there was no supervision by the Defendant, to stop her from making completely false statement that: “cancel[ing] the contract in writing by certified mail which is all the law requires”
- That Ms. Krause lacked the education, and supervision by the Defendant, to stop her from making completely false statement implying that Plaintiff somehow was engaging in illegal activity.
- That Defendant also falsely published that there was an “emergency meeting” by The Tennessee Board for Licensing Contractors to suspend his license that is only required in very few counties in Middle-Tennessee That the first of several articles published by Ms. Krause beginning on November 17, 2020 and updated on March 10, 2021 in paragraph one reads: “the owner of a Mt. Juliet Roofing Company who was arrested for fraud has now given up his state roofing license” which is a statement that is false without any citation to authority, proof, or source reference.
- That there was no emergency meeting, just an informal conference at a regularly scheduled meeting with Plaintiff's counsel and The Tennessee Board for Licensing Contractors.
- That there was never an “emergency meeting” by The Tennessee Board for Licensing Contractors at any time regarding Mr. Kenton.
- That the publication that there was an “emergency” of any type regarding Mr. Kenton was known to be false by Defendant or published recklessly not having attained the facts.
- That Plaintiff's counsel did speak with The Tennessee Board for Licensing Contractors informally at a regularly scheduled meeting.
- That a hearing was scheduled at the next regularly scheduled meeting approximately four weeks later.
- That prior to the regularly scheduled hearing on November 17, 2020, charges alleged by The Tennessee Board for Licensing Contractors were dismissed with no finding of fault by Mr. Kenton.
- That there is no such thing as a suspension of a Home Improvement License whereas Jesse Gentry attorney for The Tennessee Board for Licensing Contractors advised Plaintiff's counsel in writing that there is only an “inactive” status as opposed to a suspended or suspension status in their system. Exhibit L.
- That there were no findings of fact that Mr. Kenton had broken any law by The Tennessee Board for Licensing Contractors designated in the agreement with Mr. Kenton.
- That Defendant ignored the specific language of the license application and the correct answers by Plaintiff and published by implication or innuendo that the answers were false.
- That Defendant published an incomplete application for Mr. Kenton's personal license as if the content were false.
- That Mr. Kenton designated the application was for himself.
- That Mr. Kenton did not have the authority to apply for a license for Tennessee Metal Roofing Inc.
- That without citation, source, or authority Defendant by implication or innuendo published the information in Plaintiff's personal license application was false which is of no value to the public and having no legal protection.
- That Defendant's publication of fake news about a suspension held him up to extreme ridicule in the community, that upon information and belief that included comments on Defendant's Facebook page in addition to telephone calls from people with whom he did business damaging his business reputation, friends, non-local family members while concurrently being shunned by his neighbors.
- That Defendant's publication to multiple sources of a derogatory and false statement about an nonexistent emergency meeting by The Tennessee Board for Licensing Contractors held him up to extreme ridicule in the community as if there was some threat by Plaintiff personally to the community.
- 100.That Ms. Krause was fully cognizant of the aforementioned statements being false resulting from research and discussion with Plaintiff's counsel by her Executive Producer Kevin Wisniewski.
- 101.That despite a false publication by another news outlet Plaintiff's home improvement license was recorded as "inactive" because Plaintiff was no longer, or soon to be no longer a resident of The State of Tennessee, effectively serving no purpose to the Plaintiff.
- 102.That the November 17, 2020 and March 10, 2021 publication continued to read: “NewsChannel 5 Investigates talked with unhappy customers who complained about the company's work or lack of it” that by implication or innuendo Mr. Kenton was responsible for the actions of a third-party corporation while additional implying that Mr. Kenton did roofing work when Mr. Kenton is not a roofer and not providing Defendant's source materials or information about the alleged unhappy customers.
- 103.That prior to the actions of the local media including Defendant, Tennessee Metal Roofing Inc., a third-party entity, had an A+/- rating with the Better Business Bureau and had voluminous satisfied customers.
- 104.That the volumes of satisfied customers of Tennessee Metal Roofing, Inc. in Tennessee lost their roof warranties because Mr. Kenton could no longer provide them assistance to handle any potential problems with the installed roofs on their behalf having lost the ability to provide independent services on behalf of with Tennessee Metal Roofing Inc. resulting from the corporation's demise.
- 105.That additionally Defendant in the same publication and its update, falsely stated that: “Meanwhile, Kenton is set to go on trial in March on the criminal charges.”
- 106.That Mr. Kenton at no time had a "trial" scheduled in the General Sessions Court.
- 107.That a trial would only be possible after the facts being presented to a Grand Jury.
- 108.That Mr. Kenton had yet to even have a preliminary hearing to determine whether a trial would be warranted.
- 109.That the charges were dismissed without objection by, and at the option of, the District Attorney.
- That the charges were not dismissed on any procedural motion.
- That Defendant incorporated by reference and directly in four additional stories and the content therein whereas all four designate updates on March 10, 2021 which means a new or revised publication similar to new editions of a textbook or a new copyright for a derivative work. Exhibit K.
- That Plaintiff's counsel had prior communication that motivated Defendant to attack Plaintiff whereas with Ms. Krause and Mr. Wisniewski in September of 2020 where Plaintiff's counsel suggested that we should speak with a Judge (“discuss with a Judge”).
- That Mr. Wisniewski and Ms. Krause appeared to be hiding information or were just going on a tirade to destroy Plaintiff's job and work. That Defendant asked Plaintiff's counsel if they could do a live interview with Mr. Kenton.
- That Plaintiff's counsel would only agree if counsel could also interview Ms. Krause first so that viewers would understand what her perspective being analogous to the Preface of a book.
- That after this correspondence by electronic mail between Ms. Krause and Plaintiff's counsel, Mr. Wisniewski intervened whereas Plaintiff's counsel asked him if he was a lawyer and he said to wit: no but I know about these things. As such, he began actively acting as counsel for Channel 5 and Ms. Krause personally.
- Plaintiff's counsel advised Mr. Wisniewski that he would want to question Ms. Krause (believed formerly to be Jennifer Anne Thomas), for whom he still appeared to be acting as legal counsel, about her attendance and events concurrent with her time at Occidental College including her public representations about her education and background.
- That Mr. Wisniewski suggested that the interview request was a threat to Ms. Krause.
- That upon information and belief Ms. Krause had something to hide or that an interview would raise questions about her public image or qualifications as a news reporter.
- That Plaintiff's attorney repeatedly demanded that if any further legal issues were to be discussed that it would be with a licensed attorney and not Kevin Wisniewski.
- 120.That Mr. Wisniewski refused to stop acting as if he was licensed counsel for Ms. Krause and the Defendant.
- 121.That Plaintiff's counsel terminated any further correspondence with the Defendant.
- 122.That Plaintiff's counselor, as required by law, promptly notified Ms. Brooks at the Office of the Attorney General and Reporter about Mr. Wisniewski's unauthorized practice of law. Exhibit M.
- 123.That subsequently Ms. Krause and Mr. Wisniewski went on a rampage of publishing fake news about the Plaintiff as noted herein.
- 124.That Ms. Krause again falsely reported " owner of Mt. Juliet Company" arrested for home improvement fraud.
- 125.That Ms. Krause again falsely reported on multiple occasions including but not limited to November 17, 2020 and dates subsequent to November 17, 2020 that Mr. Kenton is a roofer.
- 126.That the designation of Mr. Kenton as a “roofer” in context of the publication by implication or innuendo suggests he personally builds or installs roofs, which is false.
- 127.The false statement was published on a tangible fixed medium of expression both in writing and on video and remains displayed on the internet and social media platforms.
- 128.The publication of the alleged allegations were displayed on television and fixed in print on Defendant's website and social media platforms including but not limited to Facebook.
- 129.That Defendant falsely published that the Plaintiff was the owner of “Tennessee Metal Roofing Company.”
- 130.That there is no Tennessee Metal Roofing Company, which Ms. Krause failed to verify before publishing her news reports. Exhibit F.
- 131.That there was a corporation named Tennessee Metal Roofing Inc. to which Plaintiff was an independent contractor.
- 132.That there is also MIDDLE TENNESSEE ROOFING CO, INC., TENNESSEE ROOFING COMPANY, INCORPORATED, and fourteen other roofing companies with a similar sounding names listed in the Tennessee Secretary of State database to which Plaintiff is not a principal, contractor, or employee.
- 133.That there approximately twenty-one companies beginning with “Tennessee Metal” for which Plaintiff is not a principal, contractor, or employee.
- 134.That publishing the incorrect name of the nonexistent company being associated with Mr. Kenton had no value to the public when there are greater than thirty companies with a similar sounding names.
- 135.That upon information and belief that the false publication of the name “Tennessee Metal Roofing Company” could confuse consumers and the general public about other companies.
- 136.That upon information and belief that the false publication of the name “Tennessee Metal Roofing Company” could damage other companies whose name sounded similar the false name repeatedly published by the Defendant.
- 137.That months earlier Defendant's employee Mr. Wisniewski was placed on notice that Mr. Kenton was an independent contractor during the time period when he was attempting to be an attorney.
- 138.That Plaintiff as a matter of law did not have any personal liability for a third- party corporation.
- 139.That the paragraph herein defining corporations and documents in support had previously been delivered by electronic mail to, and ignored by, Mr. Wisniewski and by Ms. Krause.
- 140.That prior to the publication on November 17, 2020 Mr. Wisniewski acknowledged in writing that Plaintiff was not the incorporator of Tennessee Metal Roofing Inc, yet Ms. Krause continued to publish that Plaintiff was the owner of the nonexistent “Tennessee Metal Roofing Company.”
- 141.That upon information and belief that Ms. Krause neither had sufficient education or background to be reporting on a story she could not comprehend.
- 142.That upon information and belief Defendant hired Ms. Krause fully aware of her absence of an appropriate education to report on legal matters.
- 143.That upon information and belief Defendant did not verify her application for employment for accuracy.
- 144.That Ms. Krause was not provided with sufficient supervision by Defendant to correctly publish accurate and truthful information about the Plaintiff.
- 145.That Ms. Krause proceeded accusing Plaintiff of establishing JKLT, LLC as a “shell” company.
- 146.That the innuendo and implication as published by Ms. Krause was that Plaintiff created a shell company that was engaging in illegal activities and that upon information and belief and being hired by Defendant without sufficient education Ms. Krause was without any knowledge as to what constitutes a shell company.
- 147.That upon information and belief Ms. Krause was instructed by, or discussed a manner to damage the Plaintiff with Mr. Wisniewski to raise the negative, yet incorrect public perception of a shell company to further damage Plaintiff's business reputation.
- 148.That a shell corporation is a company that serves as a vehicle for business transactions without having any significant assets or operations. Shell corporations are not illegal and they have legitimate business purposes. They are also known as international business corporations (IBCs), personal investment companies (PICs), front companies, or mailbox companies.
- 149.That an LLC is a vehicle for tax advantages and a low-level vehicle for asset protection.
- 150.That Defendant falsely published: “Now News Channel 5 investigates has found James Kenton of Tennessee Metal Roofing owes the IRS more than $1,000,000. Consumer investigator Jennifer Kraus is digging into how he recently bought an expensive boat with cash.”
- 151.That Mr. Kenton has never been the owner or registered owner of any boat in Tennessee.
- 152.That if the false statement that “ he recently bought an expensive boat with cash” were true the seller of this alleged boat purchase by Mr. Kenton would have to file a report with the Internal Revenue Service for deposits or a transactions that are in cash for $10,000 or greater.
- 153.That Defendant continued to falsely publish: “Check out this boat. It's a 36 foot Sea Ray docked at the Cedar Creek Marina in Mount Juliet. Records show James Kenton paid nearly $75,000 cash for it less than two months ago; the same James Kenton who was arrested by Metro police last month on home improvement fraud charges for allegedly ripping off a customer at his roofing company.”
- 154.That Defendant falsely published by implication or innuendo Mr. Kenton was engaging in illegal; activity despite his absence of ownership of, or the registering of, any boat.
- 155.That Defendant displayed a photograph and displayed video publication of the alleged boat described as: “It's a 36 foot Sea Ray docked at the Cedar Creek Marina in Mount Juliet.”
- 156.That the random and unidentifiable photograph and video published by Defendant is not of a 36 foot Sea Ray docked at the Cedar Creek Marina known to any person or organization related to Plaintiff. Exhibit N.
- 157.That the published photograph and video was a fabrication of false information used to discredit and harass the Plaintiff.
- 158.That Defendant has repeatedly published false visual images of blank or random pieces of paper that bears no relationship to Plaintiff as if they had documentary evidence of wrongdoing by Plaintiff.
- 159.That Defendant published by innuendo or implication that the "boat" was a way to hide assets despite his absence of ownership.
- 160.There was no seizure of any “boat” owned by the Plaintiff.
- 161.That assuming arguendo Plaintiff owned some random unidentified boat that was never seized, it would be of no more public concern than the color of Plaintiff's undergarments other than to create the false implication or innuendo that the Plaintiff had some form of wealth resulting from some unlawful or illegal source.
- 162.That Defendant made similar false statements about land allegedly purchased personal by Plaintiff.
- 163.That there was no land owned by the Plaintiff.
- 164.That assuming arguendo Plaintiff owned some random unidentified piece of land that could have been ten square feet of swamp land, it would be of no more public concern than the Plaintiff's food of choice for breakfast other than to create the false implication or innuendo that the Plaintiff had some form of wealth resulting from some unlawful or illegal source.
- 165.That the implication or innuendo by Defendant was that the boat and land were ill gotten gains published upon information and belief to sensationalize a false narrative and obscure the actions of Defendant's co-conspirator Mr. Thorogood.
- 166.That the service of an alleged Seizure Warrant on behalf of a limited liability company upon Plaintiff was improper.
- 167.That the Honorable Brody Kane of the Wilson County Circuit Court, State of Tennessee vacated the seizure and returned the real property to its owner that is a limited liability company.
- 168.That Plaintiff was not a party to the seizure action.
- 169.That Defendant's Ms. Krause published: “we found he owes a lot of money to the IRS. These tax documents show he owes back taxes for nearly every year going back to 2010. All told, when you add up the taxes that are due and all the fines and penalties, he owes the IRS more than $1,000,000.”
- 170.That had Defendant' s Ms. Krause had been hired with an appropriate education and supervised by her employer full knowledge by that by her admission in the statement “nearly every year going back to 2010” that the Statute of Limitations would have been expired to collect the alleged debt.
- 171.That if Defendant' s Ms. Krause had been hired with an appropriate education and supervised by her employer she would know that there were never civil lawsuits against Plaintiff by the Internal Revenue Service.
- 172.That if Defendant' s Ms. Krause had been hired with a proper content oriented education and supervised by her employer she would know that there were never any criminal charges against Plaintiff by the Internal Revenue Service.
- 173.That to wit Defendant was provided notice that they could contact Plaintiff's tax attorney in Danvers, Massachusetts and did not exercise the option.
- 174.That Defendant published information in a manner that was inconsistent with concurrent facts to damage Plaintiff.
- 175.The publication was false or with significantly inaccurate information to provide the public with an incorrect perception of Plaintiff and providing no public value.
- 176.That the aforementioned publications herein were to included thousands of television viewers in addition to his business community, his neighbors, friends, and non- local family members many who knew the Plaintiff, and did not have any public value.
- 177.The alleged tax liens were de facto corporate tax liens resulting from the embezzlement of funds by the Treasurer of Advanced Metal Corp. (that is not Carefree Metal Roofing as designated by Defendant) and Plaintiff's taxation attorney information and location was provided by Plaintiff's counsel for Defendant's verification.
- 178.That the alleged tax liens of Plaintiff were not resulting from any action of the Plaintiff yet it is implied that he personally broke the law designating them in a light that would offend the average person.
- 179.That any tax liens bear no relationship to Plaintiff's personal tax returns.
- 180.That it is implied by Defendant that Defendant had acquired Defendant's personal tax returns, which is a criminal act pursuant to: 26 U.S. Code § 7431 (Inspection or disclosure by a person who is not an employee of United States) and would subject Ms. Krause to potential fines and incarceration.
- 181.That Defendant repeatedly falsified or misrepresented the meaning of similar fabricated stories designated herein about the Plaintiff beginning on and subsequent to November 17, 2020 containing the same allegations of being the “owner” of a nonexistent roofing company when she was fully aware he was not an owner.
- 182.That Mr. Kenton was harassed and threatened with bodily harm after the publication of the fake news by Defendant.
- 183.That Plaintiff had to seek professional assistance and medication from a physician to cope with the targeted attack on him by the Defendant and Mr. Wisniewski.
- 184.That Plaintiff after being harassed, ridiculed, and shunned by local society, family, friends, and persons with whom he conducted business about his false business activities published by Defendant, ultimately had to leave the State of Tennessee.
- 185.That subsequent to Mr. Kenton's relocation to another State, both Mr. Wisniewski of WTVF and Mr. Thorogood contacted Lynn Thach who resides in Maine who was the exclusive shareholder of the no longer existent Tennessee Metal Roofing Inc. that was dissolved resulting from the actions designated herein.
- 186.That Mr. Wisniewski told Ms. Thach that he knew things about the law and lawyer she should contact who is attorney Robin Moore in Carthage Tennessee regarding her relationship with Mr. Kenton.
- 187.That upon information and belief Ms. Moore with direction from, or in conjunction with, Defendant's employees and Mr. Thorogood tried to convince Ms. Thach to commence a domestic lawsuit in Tennessee.
- 188.That there was no jurisdiction in Tennessee pursuant to the provisions of Tennessee Title 36.
- 189.That Ms. Moore, with full knowledge that Ms. Thach was the sole shareholder of Tennessee Metal Roofing Inc., with the aid of Mr. Thorogood who was still trying to shield his own misdeeds, attempted to convince Ms. Thach to commence a lawsuit with perjured statements by Ms. Thach to which Ms. Thach refused.
- 190.That Ms. Moore is currently under investigation by The Board of Professional Responsibility for conversion of thousands of dollars paid to her by Ms. Thach, whom by admission is the incorporator and sole shareholder of Tennessee Metal Roofing Inc.
- 191.That Mr. Wisniewski has or had a complaint lodged against him by an attorney against him for the unauthorized practice of law regarding his representation of Ms. Krause who is a reporter for WTVF that was airing information about Mr. Kenton.
- 192.That upon information and belief Ms. Krause sought to shelter her background Mr. Kenton's attorney asked if he could interview Ms. Krause on camera in exchange for a live interview with Mr. Kenton.
- 193.That Jennifer Krause, the on-air reporter for WTVF, made multiple broadcasts about Mr. Kenton and that upon information and belief based on Mr. Thorogood's on air statements she was being provided false information by Mr. Thorogood.
- 194.That upon information and belief, having been hired by Defendant, with an insufficient education to report on issues of law or supervision by the Defendant, reported lies and misinformation in a manner to confuse the public and shed a negative image on Plaintiff by knowingly, negligently, or recklessly reporting false information created by the Defendant and in conjunction with Mr. Thorogood.
- 195.That Ms. Thach was billed by Robin Moore for time with Ms. Krause, Mr. Wisniewski, and Mr. Thorogood regarding Mr. Kenton. Exhibit O.
IV. CAUSES OF ACTION
FIRST CAUSE OF ACTION: COUNT 1
- 196.That Plaintiff repeats the allegations contained in paragraphs one (1) through one-hundred-ninety-five (195) as though set forth verbatim herein as if re-alleged in this cause of action without limitation and with full force and effect.
- 197.That Plaintiff would show Defendant communicated multiple statements designated herein with knowledge that the statements were false and defaming to Plaintiff that referred to Plaintiff, on television, video, film, and in writing on November 17, 2021 and March 10, 2921 with reckless disregard for the truth of the statements or negligence in failing to ascertain the truth of the statement.
- 198.Plaintiff would show Defendant's statements were made to persons other than Plaintiff, on broadcast television to thousands of people including but not limited to people with which the Plaintiff conducted business, friends, neighbors, family members, and the public-at large and in written publication on the Defendant's website and social media platforms.
- 199.That the multiple defamatory statements made by Defendant of and concerning the Plaintiff occurred directly, or by implication, or by insinuation and the like when the Defendant twisted the truth by either omitting relevant facts and circumstances, or alluding to 'facts' and circumstances that do not exist.
- 200.That the Defendant's defamatory statements constituted a serious threat to the plaintiff's personal and business reputation.
- 201.That the Defendant's defamatory statements constituted a serious threat to the Plaintiff's safety whereas Plaintiff has been harassed and threatened to be subject to bodily injury resulting from the Defendant's actions.
- 202.That the Defendant's defamatory statements tended as so to harm the reputation of Plaintiff as to lowering him in the estimation of the community or to deter third persons from associating or dealing with him.
- 203.That Defendant's statements held the plaintiff up to public hatred, contempt or ridicule, and conveyed an element of disgrace.
- 204.That the result of Defendant's individual or multiple defamatory falsehoods include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.
- 205.That Defendant's statements and publications constituted a serious threat to the plaintiff's reputation including but not limited to the defamatory statements that tended to prejudice Plaintiff in his business, trade, or profession.
- 206.That Plaintiff would show that Defendant's statements and publications were so extensively defamatory Plaintiff has not been able to maintain his livelihood, provide services to hundreds of ho