日志
reply brief
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COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
NO. 2019-P-1546
(Low Court No. 1881cv03670)
_______________________________________________________
YONG LI
PLAINTIFF-APPELLANT
V.
YANLING (REBECCA) ZENG
DEFENDANT-APPELLEE
________________________________________________
ON APPEAL FROM A JUDGMENT
OF MIDDLESEX COUNTY SUPERIOR COURT
_________________________________________________________
Reply Brief of Appellant Yong Li
_________________________________________________________
The Plaintiff-Appellant
Yong Li (pro se)
TABLE OF CONTENTS
The superior court’s judgment quoted allegations which was set forth in the Amended Complaint. that is why the Brief of Appeal lists some statement of facts from the Smended Complaint. ……..2
The superior court believed that the plaintiff might be “delusional”. that is why the case was dismissed. the superior court adapted twisted fact. ……………………………………………………….3
The superior court abused discretion because a person suffers delusional should deserve equal protection under the law of defamation. ……………………………………………………….6
The superior court abused discretion because it will be up to jury to decide whether the “sex gossip about you ...” to convey a message akin to “mind your own business.”………………………………..7
The superior court abused discretion because the resembling of the “imaginative express” is arbitrary and capricious. ……………....8
All of the statements of facts questioned by the appellee are the subject of this appeal, because all of them were listed in the Opposition to defendant’s Motion for Judgment on the Pleadings, the reply to the defendant’s Answer to the Complaint, or the Memorandum of Decision and Order on defendant’s Motion for Judgment on the Pleadings. …………………………………….9
A Wechat id is a pen name. All of the statements alleged in this case are of or concerning the plaintiff Yong Li. ………………..13
Supplemental Information ……………………………………… 17
Yong Li’s Affidavit …………..………………………………… 18
Certificate of Service ………………………………………….. 19
TABLE OF CASES
Friedman v. Bloomberg L.P., 16-1335-cv (2d Cir. 09/12/2017). ….. 7
Natural Resources. v. U.S., 966 F.2d 1292, 97, (9th Cir.'92). …….. 8
Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass 2007) …………………………….. 14, 15
STATUES AND RULES
5 USC. 706(2)(A) (1988) ……………………………………….. 9
Fourteenth Amendment Equal Protection Clause ………………. 6
The Superior Court’s Judgment Quoted Allegations Which Was Set Forth in the Amended Complaint. That Is Why the Brief of Appeal Lists Some Statement of Facts from the Amended Complaint.
The Motion to Amend Complaint was dismissed by a different judge (Judge Maureen Hogan). But somehow, Judge Janice Howe quotes an allegation from the Amended Complaint (Appendix 020, §15):
Can you allow me to post your real name and let everyone see your history online? There were rumors spreading among the villagers [in the Sudbury area], but I’m not involved in your business. I don’t know why you are so hostile to me. I was forced to say these words tonight, even if someone asked me about you, I would never talk about someone like you! ”
into the Judgment (Appendix 058, §3) to allow the Defendant’s Motion for Judgment on the Pleadings. That is why the Appellant listed this statement into the Brief of Appeal (the Brief of Appeal, page 8).
In fact, the Plaintiff’s Reply to Defendant’s Answer to the Complaint stated : “ referred some facts from the proposed Amended Complaint for convenient. If necessary in the end, Plaintiff will provide another Fact Statement in the future.” (Appendix 037, paragraph 2). That might be why the Superior Court Judge adopted the facts from both the original Complaint and the Amended Complaint into her judgment.
Thus, the Dismiss to the Motion to Amend Complaint should be reversed. The Order to Allow the Motion for Judgment on the Pleadings should be reversed.
The Superior Court Believed that the Plaintiff Might be “Delusional”. That Is Why the Case Was Dismissed. The Superior Court Adapted Twisted Fact.
The Defendant-Appellee twisted the fact in her Motion for Judgment on the Pleadings (Appendix 044, p3), where Defendant took words out of the context regarding a statement of fact from the Complaint (Appendix 008, §10):
The Plaintiff does [did] not know of any rumors about her, including any sex gossip. However, the Plaintiff did feel that something was wrong. In the last two years, people in the local Sudbury WeChat group were sometimes rude to the Plaintiff for no apparent reason. The Plaintiff does [did] not know who those people are because they use WeChat ID. The Plaintiff believes that if any rumors had been spread, the only person who could be spreading them is Defendant Zeng because she is the only person who knows the Plaintiff [real name] and she is active in Sudbury. (Appendix 044, p3; Appendix 008, §10)
The Defendant twisted that meaning of “... the only person who could be spreading them is Defendant Zeng because she is the only person who knows the Plaintiff ...” The misleading is: how could the Defendant “was the only person who knows the Plaintiff,” as the Plaintiff came to Sudbury 20 years ago. Following this logic, the Plaintiff must be “delusional.”
In fact, the statement “she [the Defendant] is the only person who knows the Plaintiff” means that the Defendant was the only one, at that time, who knew that the real name for WeChat ID “zeber” is Yong Li.
To correct this misleading, the Plaintiff specifically explained in the Reply to Defendant’s Answer to the Complaint: “Defendant has a hobby to unveil Plaintiff’s WeChat ID, Defendant took advantage of her role as a real estate agent in visiting Plaintiff’s house to come to know who Plaintiff was and what the Plaintiff’s WeChat ID [is].” (Appendix 039, paragraph 4)
The Amended Complaint also made clear: “Plaintiff used WeChat ID “zeber” rather than her real name. Defendant Zeng attempted to unveil Plaintiff’s ID in order to show that she knew the Plaintiff personally.” (Appendix 018, §8)
Unfortunately, the Superior Court Judge Howe fully adapted the Defendant’s misleading, and she believes that the Plaintiff might be “delusional”. Even the twenty minutes of hearing could not help to correct such misleading.
Thus, the case was dismissed. The Superior Judge ignored the fact that it was the Defendant’s two years rumor-spreading caused the Plaintiff to ask the “personal character”. The Judge directly quoted “Li posted a comment in which she stated Zeng was a person ‘has no personal character’ ” to be the beginning of the facts in the Judgment (Appendix 058, line 1), and that made the case look like it was the Plaintiff caused the trouble from the beginning.
The Superior Court Abused Discretion Because A Person Suffers Delusional Should Have Equal Protection Under the Law of Defamation.
Based on the Fourteenth Amendment Equal Protection Clause, a person who suffers “delusional” symptom deserves to be protected under the law of Defamation. For the Plaintiff-Appellant, whether suffered “delusional” or not, nobody should fabricate sex scandle about her.
The Superior Court should not dismiss a case only because she believes the Plaintiff was “delusional”. She should focus on the fact that whether the text “those sex gossip about you ...” defamed the Plaintiff or not.
The Superior Court Abused Discretion Because It Will Be Up To Jury to Decide Whether the “Sex Gossip about You ...” to Convey a Message Akin to “Mind Your Own Business.”
It should be up to the jury to decide (1) whether readers understood the statement “those sex scadle [pink news] about you have nothing to do with me” - to convey a message akin to “mind your own business.” (2) whether the statement to be viewed as a use of “imaginative expression.” (3) whether it in fact defamed the Plaintiff.
See Friedman v. Bloomberg L.P., 16-1335-cv (2d Cir. 09/12/2017). “On remand, it will be up to the jury to decide both (1) whether readers understood Palladyne's statement-"repeatedly tried to extort"-to mean that Friedman engaged in criminal conduct and (2) whether that statement in fact defamed Friedman. See Sack on Defamation § 2:4.16 ("Once the judge has determined that the words complained of are capable of a defamatory meaning, that is, are not nondefamatory as a matter of law, it is for the jury to determine whether they were so understood and whether they in fact defamed the plaintiff.") (footnotes omitted)). We express no view as to how those issues should be decided by the fact finder.”
The Superior Court Abused Discretion Because the Resembling of the “Imaginative Express” Is Arbitrary and Capricious.
The Superior Court ruled:
The statement that imply the existence of ‘pink news [sex scandle]’ are also, in this court’s view, a protected use of ‘imaginative express,’ which when read in context convey a message akin to ‘mind your own businness.” (Appendix 062, p2)
This ruling is arbitrary, capricious, and it is absence of a rational connection between the “sex gossip” and the fact the Plaintiff has online story or “delusional”. Even suppose there were rumors about the Plaintiff in the local Sudbury, the rumors had nothing to do with sex.
Absence of a rational connection between the facts found and the choice made. Natural Resources. v. U.S., 966 F.2d 1292, 97, (9th Cir.'92). A clear error of judgment; an action not based upon consideration of relevant factors and so is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or if it was taken without observance of procedure required by law. 5 USC. 706(2)(A) (1988).
All of the Statements of Facts Questioned by the Appellee Are the Subject of this Appeal, because All of Them Were Listed in the Opposition to Defendant’s Motion for Judgment on the Pleadings, the Reply to the Defendant’s Answer to the Complaint, or the Memorandum of Decision and Order on Defendant’s Motion for Judgment on the Pleadings.
The Appellee questioned some statements of facts which were listed in the Appellant’s Brief , for these statements were not listed in the original Complaint. However, these statements were either listed in the Plaintiff’s Opposition to Defendant’s Motion for Judgment on the Pleadings, the Plaintiff’s Reply to the Defendant’s Answer to the Complaint, or the Superior Court Judge Janice W. Howe’s Memorandum of Decision and Order on Defendant’s Motion for Judgment on the Pleadings:
“get fire to burn your body” (Appellant’s Brief, page 4)
---- This statement was listed in the Plaintiff’s Opposition to Defendant’s Motion for Judgment on the Pleadings. (Appendix 047, footnote-1, “Even after the case was sent to the court, Defendant made a public threat by posting ‘get fire to burn your body’ to a chatroom with 219 members on December 31, 2019 ”) .
Li found that Zeng has a hobby to unveil Li’s WeChat-ID, “zeber”, in order to draw public attention, and that may help for Zeng’s real estate business. (Appellant’s Brief, page 5)
---- This statement of fact was listed in the Plaintiff’s Reply to Defendant’s Answer to the Complaint. (Appendix 039, paragraph 4: “Defendant has a hobby to unveil Plaintiff’s WeChat ID, Defendant took advantage of her role as a real estate agent in visiting Plaintiff’s house to come to know who Plaintiff was and what the Plaintiff’s WeChat ID.”) .
“Can you allow me to post your real name and let everyone see your history online? There were rumors spreading among the villagers [in the Sudbury area], but I’m not involved in your business. I don’t know why you are so hostile to me. I was forced to say these words tonight, even if someone asked me about you, I would never talk about someone like you! ” (Appellant’s Brief, page 8)
---- This statement was quoted in the Superior Court Judge Janice W. Howe’s Memorandum of Decision and Order on Defendant’s Motion for Judgment on the Pleadings (Appendix 058, §3) . Although this statement was originally listed in the proposed Amended Complaint (Appendix 020, §15), but somehow was adopted by Judge Howe.
Zeng also texted “Good, I’m going to see who will pay who compensation.” (Appellant’s Brief, page 10)
---- This statement was in the Plaintiff’s Reply to Defendant’s Answer to the Complaint. (Appendix 039, paragraph 3)
Zeng texted Li “you used me to estimate your house without payment.” By that time, Li realized that Zeng was upset because Li did not hire Zeng to sale the house. (Appellant’s Brief, page 10)
---- This statement came from the Plaintiff’s Reply to Defendant’s Answer to the Complaint. (Appendix 039, paragraph 1: “Defendant was angry with Plaintiff because Plaintiff did not hire her to sale the house.” )
Since all of the statement of facts listed above were set forth in the Plaintiff’s Reply to Defendant’s Answer, the Plaintiff’s Opposition to Defendant’s Motion for Judgment on the Pleadings, or the Superior Court Judge’s Memorandum to Allow Defendant’s Motion for Judgment on the Pleadings, it is legitimate to use these statement of facts in this Appeal to sustain a claim for defamation.
A WeChat ID Is a Pen Name. All of the Statements Alleged in This Case Are Of or Concerning the Plaintiff Yong Li
This question was not come up in the low court: whether those alleged statements were “of or concerning” the Plaintiff Yong Li.
The WeChat ID “zeber” is a kind of pen name. The Plaintiff has used this name for all the years. When the Defendant commented the Plaintiff as “delusional” in 2016, the local Sudbury Chinese community became to know that “zeber” is Yong Li’s ID.
The local Sudbury community had known Yong Li for 20 years, and they also had known Yong Li’s litigation against Raytheon 10 years ago. They understand that the comment of “delusional” refers to the fact that Raytheon’s psychiatrist labelled Yong Li “delusional.”
Because all of the alleged statements occurred between the Plaintiff and the Defendant (through their WeChat IDs), this case meets the standard for the second element of a defamation claim, “of and concerning” the plaintiff, both “zeber” and Yong Li.
In Massachusetts, the elements of a defamation claim are:
a false and defamatory communication
of and concerning the plaintiff which is
published or shown to a third party.
Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass 2007).
In two years, from 2016 to 2018, the Defendant could meet the local Sudbury people person to person and tell the story about Yong Li.
“In order to maintain an action for libel or slander, it must appear that the defamatory words refer to some ascertained or ascertainable person, and that person must be the plaintiff.'” Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643, 651 (1970) (quoting Nat’l Shutter Bar Co. v. C.F.S. Zimmerman & Co., 110 Md. 313 (1909)).
Back to the case in hand, although the Defendant had never been found when she publicly posted the name “Yong Li”, it does not stop that she could tell people privately. The WeChat tool provides a function to tell people privately. When the Defendant publicly posted “Can you allow me to post your real name and let everyone see your history online? …” as well as “those sex gossip about you ...”, the people in the WeChat group would ask the Defendant privately.
Further, in the US-wide WeChat group of 437, there were two members also living in the local Sudbury Chinese community. Yes, the two people are members of the local Sudbury WeChat group, and are also the members of the US-wide group of 437. Their names (WeChat Id) are: Biluoxiang (碧螺香), and Suixin (随心) . The two people knew that “zeber” is Yong Li. The two people also read the defamatory text “those sex gossip about you …” posted by the Defendant in the US-wide group of 437. So that the two people can be the third party to prove the third element: published or shown to a third party. Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass 2007)
As a result of the defamatory statements, the Plaintiff was removed from the WeChat group of 437 members, that means the WeChat ID “zeber” was removed from the group. And this affected the Plaintiff’s civil rights service in the WeChat society.
Respectfully submitted,
/s/_
Name: Yong Li
Address:
Date: April 8, 2020
SUPPLEMENTAL INFORMATION
This information was not submitted to the lower court due to the case hurriedly dismissed. However, the Plaintiff believes that this information is worth to provide:
In 2017, there was a Christmas party in the home of Christina Wu, who was the leader of Sudbury Chinese Association. There were about 25 people who joined the party. Almost everyone in the party said that the Yanling Rebecca Zeng (Defendant “Zeng”), has no character. Zeng’s story includes:
A Chinese woman, Ms. Yao Qin, who asked Zeng to look for a house once. Eventually, Ms. Qin bought a house in Sudbury through another real estate agent. Zeng was upset and spread bad words about Ms. Qin everywhere. Ms. Qin and Zeng became bad blood;
Ms. Beisong Sun, a Chinese woman who was hired by Zeng to cook dinners for Zeng’s kids. However, Zeng refused to pay Ms. Sun. Zeng claimed that because Ms. Sun had eaten dinners together with kids. It was until the December of 2018, when the Plaintiff, Yong Li, filed the Complaint to the Superior Court, then Zeng paid the fee back to Ms. Sun.
Ms. Feizhun Jin, a woman who provided daycare service in Sudbury, helped to take care of Zeng’s kid. Based on the contract, Zeng should pay the fee if the kid missed a daycare, that was because the service kept a position for the kid even if the kid was not there. However, Zeng never paid Ms. Jin if the kid missed a daycare. Zeng breached the contract in this way, and this way was followed by other kids’ parents. Those Chinese parents became not paying if their kids missed a daycare. That reduced Ms. Jin’s income. After two years, Ms. Jin closed the service, to which she had been running for more than ten (10) years in Sudbury.
In 2016, the Sudbury Chinese community started to support of Peter Liang, an exNYPD officer, who accidentally shot an innocent people. Zeng posted messages in WeChat to ask everyone to donate. Eventually, people could not find Zeng’s name on the donation list of Sudbury, that means Zeng did not donate by herself when she asked everyone else to donate.
Yong Li’s Affidavit in Support of Reply Brief
Under penalty of perjury, I, Yong Li, declare that all the facts listed in the Reply Brief, the footnote, and the supplemental information, are based on are true, correct, complete, and based my best knowledge.
Yong Li
/s/ Yong Li (Pro Se) April 8, 2020
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
______________________________
Yong Li, )
Plaintiff, )
v. ) CIVIL ACTION NO. 2019-P-1546
Yanling (Rebecca) Zeng, )
____________________Defendant. )
CERTIFICATE OF SERVICE
Plaintiff/Appellant, Yong Li, hereby certifies, under penalties of perjury, that I have made service, on this date April, _8_, 2020, of the Brief of Plaintiff-Appellant.
Service was made upon counsel for each other party by email, and this email will be sent to michellejblair@verizon.net by the eFile to court.
Due to the corona virus situation, Plaintiff will send a paper copy to Defendant Attorney Michelle Blair, 365 Boston Post Road, Ste 214, Sudbury MA 01776. Plaintiff will send paper copy to Defendant attorney after the state lockdown-order removed.
Respectfully submitted,
/s/_
Name: Yong Li (pro se)
Address:
