VI R G I N I A: IN THE CIRCUIT COURT FOR THE CITY OF ALEXANDRIA Eric J. Bonetti, Plaintiff, v. Leslie E. Malm, Defendant.
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Case No. CL 2020-20001941
DEFENDANT’S RESPONSE TO PLAINTIFF’S OPPOSITION TO STATUTE OF LIMITATIONS PLEA COMES NOW Leslie Malm; Defendant, by its counsel, Cyron & Miller LLP, to Respond to Plaintiff’s Opposition to Defendant’s Statute of Limitations Plea, as Plaintiff’s motion incorrectly claims that his access to the courts was deprived by a then ongoing Protective Order. The Protective Order specifically stated, “If the parties are unable to resolve any dispute arising under this agreement, any claim must be brought in the Circuit Court for the City of Alexandria in Virginia.” Exhibit A. BACKGROUND This dispute arises out of a post on the discussion board Fairfax Underground on April 26, 2018, in which the Defendant replied to another post using the term “stalker”, allegedly in reference to the Plaintiff’s behavior. Plaintiff brought a defamation suit against the Defendant, alleging merely that the post was defamatory with no indication of actual harm. The Defendant’s stated defenses included failure to state a claim upon which relief could be granted, the defense of truth and qualified privilege, and that the claim is 1
barred by the Statute of Limitations under Va. Code § 8.01-247.1. The Plaintiff responded to the Statute of Limitations Plea, arguing that his claim falls under the exception of Va. Code § 8.01-229(D), which suspends tolling of the statute of limitations in circumstances where the defendant obstructs the plaintiff’s ability to file an action obstructed, “by a defendant's (i) filing a petition in bankruptcy… or (ii) using any other direct or indirect means to obstruct the filing of an action. ARGUMENT Plaintiff’s contention that he was barred from suit is not an accurate representation of law or fact because the relevant Protective Order specifically allocated court relief, Va. Code § 8.01-229(D) has been repeatedly interpreted to only apply to malicious representations or actions of a defendant, and his allegation that a court clerk said something to the contrary is unsubstantiated. First, The Protective Order issued in 2018 was in response to relentless harassment of the Malm family by the Plaintiff. Relevant here is the Order’s language, “If the parties are unable to resolve any dispute arising under this agreement, any claim must be brought in the Circuit Court for the City of Alexandria in Virginia.” Exhibit A. It is impossible for the Plaintiff to successfully argue that the Order deprived his access to the courts when the Order specifically allocates relief in this Court for disputes arising under the Order. There is no case law in Virginia of a situation where Va. Code § 8.01229(D) modified the tolling of a statute of limitations because a protective order disabled a plaintiff. Second, the cited exception cannot apply to a court issued document or a clerk of court because it has been repeatedly interpreted to only apply to defendant conduct.
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In Mackey v. McDannald, 842 S.E.2d 379, 385 (Va. 2020), the Supreme Court of Virginia quoted Grimes v. Suzukawa, 262 Va. 330, 332 (2001), “Although none of our cases have expressly held that an obstructive act prior to accrual can trigger Code § 8.01-229(D) tolling, that is largely because no cases have presented such facts. A plaintiff seeking to rely on this tolling provision “must establish that the defendant undertook an affirmative act designed or intended, directly or indirectly, to obstruct the plaintiff’s right to file [the] action.” This is just one example of case law that explicitly limit the application of Va. Code § 8.01-229(D) to actions or representations of the defendant, much less a clerk of court. Plaintiff’s argument that a court issued Protective Order restricts access to the courts is not only logically absurd, but also falls outside of the Supreme Court of Virginia’s interpretation of Va. Code § 8.01-229(D). Lastly is Plaintiff’s allegation that an unnamed clerk in the General District Court for the City of Alexandria informed him that the court would not hear his claim. If this unsubstantiated interaction actually happened then the clerk was assuredly telling the Plaintiff that the court would not hear his claim because the General District Court was not the appropriate venue, per the Protective Order. CONCLUSION WHEREFORE, The Defendant, LESLIE E. MALM, by counsel, asks this Honorable Court rule in favor of its Statute of Limitations Plea because Plaintiff’s response mischaracterizes the cited exception for the tolling of the statute of limitations based on an unsubstantiated and insufficient conversation with the wrong courthouse.
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MEMORANDUM OF LAW Va. Code ยง 8.01-229(D) Va. Code ยง 8.01-247.1 Mackey v. McDannald, 842 S.E.2d 379, 385 (Va. 2020) Grimes v. Suzukawa, 262 Va. 330, 332 (2001)
Respectfully Submitted, LESLIE E. MALM, By Counsel
__________________________ Wayne F. Cyron (V.S.B. #12220) CYRON & MILLER LLP 100 N. Pitt Street Suite 200 Alexandria, Virginia 22314-3134 (703) 299-0600 (703) 299-0603 (facsimile) E-mail: wcyron@cyronmiller.com Counsel for Defendants: LESLIE E. MALM
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 11 August, 2020, a true copy of the foregoing Motion to Compel was e-mailed and mailed first-class, postage prepaid, to:
Eric J. Bonetti 4129 Fountainside Lane #203 Fairfax, VA 22030 Ericbonetti@protonmail.com Plaintiff
__________________________ Wayne F. Cyron (V.S.B. #12220)
EXHIBIT A
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