Several motions have recently been filed in the Ergun Caner lawsuit where he is suing Jonathan Autry and the author of this website, Pastor Jason Smathers, for posting Caner’s lectures to the Marines online. The recent flurry of activity breaks months of silence. Caner filed his lawsuit on June 18, 2013; however, he never served the proper paperwork to get the court proceedings moving. Rather, Caner only provided a copy of the lawsuit to Viddler and YouTube so they would remove the videos from the internet. Nearly four months later, Caner filed an amended lawsuit on October 14, 2013 and quickly served Smathers and Autry with the paperwork to start the process. It is unknown if this delay has any relationship with Caner’s attorney needing to pass the bar exam. Dustin Gaines, who appears to be doing much of the work for Caner, is a recent Liberty University Law School graduate and had the job title “Social Media Editor” when the lawsuit was filed filed. In August of 2013, Gaines became an “Associate Attorney” at Gibbs Law Firm. Gibbs remains the counsel of record, however, communication thus far has come from Gaines.
A declaration by Autry sheds light on the motives behind Caner’s lawsuit. On Monday, along with a motion to dismiss and a motion to transfer the case out of Texas, Autry filed a declaration that among other things detailed his attempt to resolve this matter out of court. In his declaration, Autry explains he willingly removed all videos he had ever posted of Caner from the Internet. He further agreed to never post anything else and agreed to sign a non-disparagement agreement. Caner wouldn’t settle, wanting a little more after each discussion until Autry couldn’t afford the cost. Autry also explains that Caner is planning other lawsuits in an effort to bankrupt his detractors. Autry concludes that “Dr. Caner has continued with the lawsuit for apparently no reason other than to seek attorney fees that I cannot afford to pay.”
Autry and Smathers had never met, never worked together, live in different states, and are being accused of different things by Caner. Because of this, their defenses, while both being quite strong, are also quite different from oneanother. Kel McClanahan, counsel for Smathers, has submitted both a motion to sever the case into two and a motion to stay the case until the time that a motion to sever is considered. If a motion to sever is granted, it will affect the way the case is handed and therefore it would be proper to toll action on the case until the motion to sever is ruled on by the court. Meanwhile, motions were due and having not received a ruling from the court on the motion to sever or motion to stay, McClanahan and Joshua Autry, counsel for Jonathan Autry, went forward with several motions including three motions to dismiss.
One of the many reasons why Caner’s lawsuit is untenable is because the videos in question were released to Smathers by the United States Marines as part of a Freedom of Information Act request. Caner claims he has filed a copyright registration for these videos and that it is pending with the copyright office. However, Kel McClanahan writes in support of a motion to dismiss that:
It is a crime to falsely represent the truth on a copyright application. 17 USCS § 506(e). For Counts 1, 3, and 4, it is necessary for this Court to review the application to ensure that Dr. Caner explained that the USMC lectures were (1) “made for hire,” which as explained below prevents Dr. Caner from obtaining a copyright, (2) that the government-mandated contract language required Dr. Caner to assign any copyright to the U.S. Government, (3) that the USMC provided the video through the Freedom of Information Act, (4) that the USMC “authored” the video by recording it and producing it, and (5) how Dr. Caner can claim ownership of U.S. Government property (exempt from copyright as explained below) and property of his employer.
Further, McClanahan has requested copies of the copyright applications made by Caner recently so the court can become aware of any impropriety. Thus far, the copyright office has not issued a registration to Caner for these videos.
McClanahan has asked the court to dismiss the case because Caner failed to properly join the United States of America to the case. By accusing Smathers of wrongdoing, Caner is in fact accusing the United States Government of wrongdoing. The US Marines provided the videos to Smathers with no stipulation on use. McClanahan explains that a long held maxim in Freedom of Information Act law is that “a release to one, is a release to all.” In other words, releasing records to one person is the same as releasing the records to everyone, giving all people an equal right to government records. Further, McClanahan explains that DOD regulations in place at the time required that all contracts for this type of work must contain language giving the U.S. Government unlimited rights to duplicate and disseminate any new intellectual property created during the performance of the contract or existing intellectual property modified and used in performance of the contract. Thus, Caner granted the US Government unlimited rights to his presentation to the US Marines. Caner is trying to hold Autry and Smathers responsible for actions of the US Government. Therefore, McClanahan argues the case must be dismissed. Although Caner’s disagreement is with the US Government, Caner is unable to sue the US Government because the standard US Government contract that Caner would have signed includes:
The Contractor shall indemnify and save and hold harmless the Government, and its officers, agents and employees acting for the Government, against any liability, including costs and expenses, (1) for violation of proprietary rights, copyrights, or rights of privacy or publicity, arising out of the creation, delivery, use, modification, reproduction, release, performance, display, or disclosure of any works furnished under this contract . . . .
Autry and Smathers have a total of three motions to dismiss pending before the court. The other two are for lack of jurisdiction and failure to state a claim. The Texas court holds no jurisdiction over Smathers as he resides in Arizona and when posting the videos in question, Caner lived in Virginia. Caner’s relocation to Texas does not give that jurisdiction authority over Smathers. The Failure to state a claim motion was made on behalf of both Smathers and Autry. In short, this motion asserts that even if everything Caner’s lawsuit says is true, there is still no valid legal claim to make. Caner failed to make any claim where Smathers or Autry violated Caner’s rights.
Several inquiries have been made to Witnesses Unto Me wondering if Caner and his associates will be subject to depositions. The eagerness to see the results of questions made under oath by a serial liar is understandable. However, such depositions are not yet possible. They will however become possible if by some means the lawsuit proceeds past these initial motions and the case moves into the discovery phase.
Meanwhile, readers may be interested in seeing a presentation made by Dr. James White concerning the Caner controversy, hearing about Caner’s false criminal complaint against White, or reading about his attempt to find new work as president of a Southern Baptist college all while disregarding the Word of God, 1 Corinthians 6:1-8 in particular, not to mention the ninth commandment.
Feel free to read for yourself:
- Motion to sever case into two
- Motion to stay case pending motion to sever
- Motion to Dismiss for Improper Venue and Lack of Jurisdiction
- Brief in Support of Motion to Dismiss For Lack of Jurisdiction and Improper Venue
- Motion to Transfer Venue
- Brief in Support of Motion to Transfer Venue
- Motion to Dismiss for Failure to State a Claim, or in the Alternative, for Summary Judgment
- Brief in Support of Motion to Dismiss, Or, in the Alternative, for Summary Judgment
- Declaration of Jonathan Autry
- Defendant Jason Smathers’ Motion to Dismiss for Failure to Join All Necessary Parties and Motion for a More Definite Statement
A Personal Note: Thank you to everyone who has supported this case through kind words of encouragement, prayer, and even financial support sent to my attorney. Kel is working for very little and I am very blessed to have his great experience on this case. I have learned that attorneys with the very best reputations can be worthless if you cannot afford to pay for their every second they think about the case at outrageous hourly rates. On the other hand, Kel is both well known, particularly in this area of law, and actually cares more about doing the right thing than about money. We have enough funds to proceed unless more expenses arise. However, I do encourage tax-deductable donations to the non-profit National Security Counselors which enables Kel to do work such as this. Donations to NSC can be sent via US Mail or Paypal. Paypal: email@example.com US Mail: National Security Counselors; 1200 South Courthouse Road; Suite #124; Arlington, VA 22204.