40 Fla. L. Weekly D1363b
Appellants participated in ‘a coordinated and systematic scheme . . . to intimidate, threaten, defame, and extort Mrs. Marjorie Knox and the other Plaintiffs . . .’ with the objective ‘to force Mrs. Knox and/or the . . . Trust . . . to sell highly valuable real estate holdings in . . [KEL] for far below market value. . . .’ ‘[This] coordinated scheme evolved in or around the year 2007 from a scheme of obfuscation, misinformation, and false accounting, to become a racketeering enterprise that began employing threats, harassment, and intimidation directed into the United States, all designed to forcibly divest Mrs. Knox and/or the Knox Trust of its interest in KEL . . . .’
· posting of anonymous threats and defamatory statements on a blog created and controlled by Kathleen here in Miami, Florida;
· delivering “false financial” records to Ms. Knox in Miami, Florida;
· giving perjured testimony in connection with “a civil court proceeding in Miami”; and
· tampering with “potential witnesses in Miami.”
A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself . . . to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:. . . .
2. Committing a tortious act within this state.
a. making defamatory and threatening posts on the daughter’s blog in violation of sections 836.05, 836.10, 895.02 of the Florida Statutes;
b. making false entries in the books of a corporation (KEL) in violation of sections 817.034, 817.15, and 895.02(2) of the Florida Statutes;
c. suborning perjury and obstructing justice in violation of sections 837.02 and 892.02(2) of the Florida Statutes;
d. tampering with, harassing, or retaliating against a witness, victim, or informant in violation of sections 914.22 and 895.02 of the Florida Statutes; and
e. cyberstalking and exploiting an elderly person in violation of sections 784.048 and 825.103 of the Florida Statutes.
More specifically, the Defendants have caused KEL to send (and continue to send) false and fraudulent accounting records to Marjorie Knox via Federal Express at her present address in Miami, Florida. For example:
a. In March 2010, KEL sent by FedEx false “Audited Financials” of KEL which included the following falsehoods, among others: that the financials had been properly audited by a duly appointed auditor; the financials omitted material information regarding and [sic] any reference to the indemnification; the financials failed to reflect transactions and pending agreements; and the financials failed to account for accruing amounts due.
The elements of the tort of [outrage] are:
(1) The wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result;
(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;
(3) the conduct caused emotion[al] distress; and
(4) the emotional distress was severe.
25. I have never posted any comment on any internet blog in Florida or anywhere in the world, at any time, including concerning any of the Plaintiffs or their family members or the ownership of KEL shares.
26. I have never endorsed, directed, instructed, conspired with or agreed with any agent, independent contractor, co-Defendant, or any other individual or entity to send any comment or blog, including any defamatory, threatening, violent, or otherwise inappropriate posting to any internet blog in Florida or anywhere in the world, at any time, including concerning any of the Plaintiffs or their family members or the ownership of KEL shares or otherwise.
27. I have no knowledge of whom the “John Does” named in the Complaint are, where they might be located, why they have posted comments on internet blogs, or from where these comments were posted.
28. I have never met with, made a phone call to, or sent a communication via regular or electronic mail to any individual or entity or John Doe in the State of Florida or anywhere else in the world, at any time, to engage in any plan, scheme, or action to defame or threaten Plaintiffs through websites, internet blogs, or the posting of comments on such websites or internet blogs or otherwise.
Section 895.03(3), Florida Statutes (2003), the substantive RICO charge . . . provides:
(3) It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.
Section 895.02, Florida Statutes (2003), defines the terms contained in section 895.03(3) and (4):
· “Racketeering activity” means “to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit” any crime chargeable by indictment or information under specifically enumerated criminal statutes.§ 895.02(1), Fla. Stat. (2003).
· An “enterprise” is defined, in relevant part, as “any . . . group of individuals associated in fact although not a legal entity.” § 895.02(3), Fla. Stat. (2003).
· A “pattern of racketeering activity” is defined as “engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.” § 895.02(4), Fla. Stat. (2003).
The statute implicated in [a] conspiracy to commit RICO charge . . . provides:
(4) It is unlawful for any person to conspire or endeavor to violate any of the provisions of . . . subsection (3).
§ 895.03(4), Fla. Stat. (2003).
[An] organized scheme to defraud charge . . . involves section 817.034(4)(a) 1., Florida Statutes (2003), which provides that “[a]ny person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud,” punishable as a first degree felony if the amount of property obtained has “an aggregate value of $50,000 or more.” The statute defines certain terms:
· “Scheme to defraud” is defined as “a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act.” § 817.034(3)(d), Fla. Stat. (2003).
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