IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

ELLENBETH WACHS,

Plaintiff,

v. Case No.: 11-CA-015545

Division: I

ED GOLLOBITH, et al.

Defendants.

_____________________________________/

ATHEISTS OF FLORIDA, INC., Consolidated with

Plaintiff, Case No.: 11-CA-015707

Division: L

v.

ELLENBETH WACHS, et al.

Defendants,

_____________________________________/

JOHN W. MCKNIGHT, Consolidated with

Plaintiff, Case No.: 2012-CA-002073

v.

ATHEISTS OF FLORIDA, INC., et al.

Defendants

_____________________________________/

JOHN KIEFFER, Consolidated with

Plaintiff Case No.: 14-CA-002665

Division G

v.

ATHEISTS OF FLORIDA, INC., et al.

Defendants.

_____________________________________/

PLAINTIFF ELLENBETH WACHS ANSWER IN OPPOSITION TO COOPERS MOTION FOR SUMMARY JUDGMENT

AND NOW comes the Plaintiff, EllenBeth Wachs, and hereby files this response to the Motion for

Partial Summary Judgment filed by the ESTATE OF MATT COOPER, (hereinafter Defendant

Cooper), as follows:

SUMMARY OF ARGUMENT

The gravamen of Defendants motion is that because 1) Plaintiff is a public

figure actual malice must be proven to successfully sue for defamation; 2) the defamatory

statements are opinion and therefore not actionable and 3) Defendant Coopers defamatory

statements enjoy privilege due to his role as a board member.

Plaintiff is not a 1) limited purpose public figure but even if she were Defendant acted

with both actual malice and reckless disregard; 2) the defamatory statements are not opinion but

classic defamation per se; and 3) Defendant Coopers statements are not privileged because a)

this issue is Res Judicata as it was ruled that board members do not have qualified immunity to

defame officers and b) Defendant Cooper admitted he wasnt even a Board Member when the

statements were made.

LEGAL STANDARD

It has been clearly established in Florida that a summary judgment should not be entered

when there are outstanding issues of material fact. Johnson v. Boca Raton Community Hosp.,

Inc., 985 So.2d 141, Murphy v. Young Mens Christian Association of Lake Wales, Inc., 974

So.2d 565. A material fact, for summary judgment purposes, is a fact that is essential to the

resolution of the legal questions raised in the case, Continental Concrete, Inc. v. Lakes at La Paz

III Ltd. Partnership, 758 So.2d 1214.

Under the Florida state court procedure, the existence of any competent evidence

creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry

and precludes summary judgment, so long as the slightest doubt is raised Wests Florida

Practice Series, 4 Fla. Prac., Civil Procedure R. 1.510(2008-2009 ed.). Dreggors v. Wausau Ins.

Co., 995 So.2d 547, held that on a motion for summary judgment, unless and until material facts

at issue presented to the trial court are so crystallized, conclusive, and compelling as to leave

nothing for the courts determination but questions of law, those facts, as well as any defenses,

must be submitted to the jury for resolution.

On a motion for summary judgment, if there is any doubt about the possibility of material

issues of fact, the doubt should be resolved in favor of the non-moving party. If the record

reflects even the possibility of a material issue of fact, or if different inferences can be drawn

reasonably from the facts, the doubt must be resolved against the moving party and summary

judgment must be denied,

"The party moving for summary judgment bears the heavy burden of proving a negative

the nonexistence of a genuine issue of material fact." RNR Invs. Ltd. P'ship. v. Peoples First

Cmty. Bank, 812 So.2d 561, 564 (Fla. 1st DCA 2002). If the evidence raises any issue of

material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to

prove the issues, it should be submitted to the jury as a question of fact to be determined by

it. Williams v. Lake City, 62 So.2d 732 (Fla. 1953); Crovella v. Cochrane, 102 So.2d 307 (Fla.

1st DCA 1958).

The Florida Supreme Court in Holl v. Talcott (191 So.2d 40 Fla 1966) stated that when

ruling on a motion for summary judgment, it is not the courts job to resolve conflicting issues of

fact, but rather simply to determine whether any genuine issues of material fact exist. If any facts

are in dispute, the court must deny the motion. Until it is determined that the movant has

successfully met this burden, the opposing party is under no obligation to show that issues do

remain to be tried. Citing Humphrys v. Jarrell, (104 So.2d 404 2nd

DCA 1958); Matarese v.

Leesburg Elks Club, (171 So.2d 606 Fla 2nd

DCA 1965) and Harvey Building, Inc. v. Haley, (175

So.2d 780 Fla1965).

This means that before it becomes necessary to determine the legal sufficiency of the

affidavits or other evidence submitted by the party moved against, it must first be determined

that the movant has successfully met his burden of proving a negative, i.e., the non-existence of a

genuine issue of material fact. Matarese v. Leesburg Elks Club, supra. He must prove this

negative conclusively. The proof must be such as to overcome all reasonable inferences which

may be drawn in favor of the opposing party. Harvey Building, Inc. v. Haley, supra.

Furthermore, where discovery is not complete, the facts have not emerged sufficiently to

enable the trial court to determine whether genuine issues of material facts exist. See Singer v.

Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987). Thus, where discovery is still pending, as is the

case especially here, the entry of Summary Judgment is premature. See Smith v. Smith, 734 So.

2d 1142, 1144 (Fla. 5th DCA 1999)("Parties to a lawsuit are entitled to discovery as provided in

the Florida Rules of Civil Procedure including the taking of depositions, and it is reversible error

to enter summary judgment when discovery is in progress and the deposition of a party is

pending."); Henderson v. Reyes, 702 So. 2d 616, 616 (Fla. 3d DCA 1997)(reversing the entry of

Summary Judgment where depositions had not been completed and a request for the production

of documents was outstanding.); Collazo v. Hupert, 693 So. 2d 631, 631 (Fla. 3d DCA 1997)

(holding that a trial court should not entertain a motion for summary judgment while discovery is

still pending).

PUBLIC FIGURE

Defendant claims that Plaintiff is a public figure for purposes of the defamation because

she faced scrutiny by local law enforcement officials after being asked to be a Plaintiff in a

lawsuit the organization was bringing against the City of Lakeland to give it standing. The sole

press conference the Plaintiff participated in was given at the request of the organization.

Contrary to the Defendants assertion, the Plaintiff did not seek out any publicity.

An individual does not become a public figure due to the fact that she is investigated in

connection with a crime, and then states publicly that she was not involved in the crime for

which she was investigated. See Pendleton v. City of Haverhill, 156 F.3d 57, 68 (1st Cir. 1998)

(describing as a canard the argument that an individual becomes a public figure merely by

defending oneself publicly against accusations, and finding that an individuals involvement in

a criminal proceedingeven one that attracts substantial notorietyis not enough, in itself, to

ingeminate public figure status); see also Time, Inc. v. Firestone, 424 U.S. 448, 455 (1976)

(Nor do we think the fact that respondent may have held a few press conferences during the

divorce proceedings in an attempt to satisfy inquiring reporters converts her into a public

figure.); Levine v. CMP Publications, Inc., 738 F.2d 660, 672 (5th Cir. 1984) (applying Texas

law and quoting with approval Firestones conclusion that holding press conferences during the

... proceedings in an attempt to satisfy inquiring reporters did not convert one into a public

figure); accord Conroy v. Fall River Herald News Co., 306 Mass. 488, 28 N.E.2d 729, 730

(1940) (One attacked by a slander or libel has a right to defend himself). This is precisely

what the Defendant is arguing: because the Plaintiff sought out people that would help support

and defend her from the spurious and false charges brought against her she transformed herself

into a public figure. Additionally, Defendant Cooper is arguing that because the Plaintiff was

effective at her job as vice-president and was able to raise the profile of the organization that

somehow magically transformed her into a public figure.

This is a type of bad luck theory of defamation and would be a return to the doctrine

advanced by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52 (1971),

which held that private persons who were involved in a public or general concern, were required

to prove that the defendant published a defamatory falsehood with reckless disregard for whether

or not it was false. The United States Supreme Court has repeatedly repudiated such a standard.

See, e.g., Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157, 167 (1979); Time, Inc. v.

Firestone, 424 U.S. 448, 452 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974).

Even if it was assumed that the Plaintiff was a public figure (she is not), the allegations

set forth in the Complaint still permit the Court to draw the reasonable inference that the

Defendants are liable for the alleged misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Because direct evidence of actual malice is rare, it may be proved through inference,

and circumstantial evidence. Levesque v. Doocy, 560 F.3d 82, 90-91 (1st Cir. 2009) (internal

citations omitted); Fox Entm't Grp., Inc. v. Abdel-Hafiz, 240 S.W.3d 524, 533 (Tex. App. 2007)

(Actual malice can [be] prove[d] through objective evidence about the publications

circumstances and the defendants conduct at the time of publication.); Wormwood v. Lee, 226

Mass. 339, 341, 115 N.E. 494 (1917) ([i]n an action for slander, upon proof that words in

themselves actionable have been spoken, there is a presumption of malice as an inference of

law).

The United States Supreme Court set forth the standards for determining whether an

individual is a public or a private figure in Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).

In Gertz, the Court distinguished between two classes of public figures: those people deemed

public figures for all purposes and those who become public figures "for a limited range of

issues." Id. at 351. Defendant Cooper does not claim that the Plaintiff is an all-purpose public

figure but, instead, considers her to be a limited purpose public figure. To be considered a

limited purpose public figure an individual must have voluntarily injected himself into a

particular public controversy in an attempt to influence its outcome. Gertz, supra at 351-352.

Determining whether these conditions exist necessitates "looking to the nature and extent of an

individual's participation in the particular controversy giving rise to the defamation." Id. at 352.

At no point in his motion does Defendant Cooper identify a specific particular public

controversy that Plaintiff is alleged to have voluntarily injected herself into in an attempt to

influence its outcome. Instead, Defendant Cooper alleges that the Plaintiff received publicity as

a result of the civil litigation and criminal charges and defenses. The legal analysis must

necessarily start with determining the particular controversy. For limited-purpose public figures,

the actual malice standard extends only as far as defamatory statements involving matters related

to the topics about which they are considered public figures. If Defendant Cooper had made

defamatory statements regarding the Plaintiff and her ability to talk about church/state separation

and its relationship to atheism and atheist activism, the actual malice standard might apply.

Defendant Cooper however called the Plaintiff a thief. This had absolutely no relationship to the

Atheists of Florida lawsuit in which the Plaintiff may be seen to have voluntarily injected herself

into a public controversy. Instead, Defendant Cooper creates a Catch-22 situation for the

Plaintiff in which he (and others) created the particular public controversy that is the subject of

the defamation i.e. the expulsion due to his false allegation of criminal behavior on the Plaintiffs

part. One cannot create the public controversy that thrusts the Plaintiff into the spotlight and

then use that same controversy as a defense to claim the Plaintiff is a limited public figure for

purposes of the defamation therefore she cannot be defamed. Individuals who are considered to

be limited-purpose public figures only remain so as long as the public has an "independent"

interest in the underlying controversy. Unlike all-purpose public figures, it is relatively easy for a

limited-purpose public figure to lose his status if the controversy in which he is involved has

been largely forgotten. Even assuming for the moment that the public had an interest in the

Plaintiffs illegal expulsion from a tiny non-profit organization, the public has no interest in the

Plaintiffs defamation suit due to the fraudulent reason behind it and most of the atheist

community certainly doesnt even know this issue is still ongoing.

Even assuming the Plaintiff is deemed to be a limited purpose public figure, the

statements were made with actual malice and/or with reckless disregard of the truth. Defendant

Cooper claims that statements must be made with actual malice and that malice is not to be

confused with the concept of ill will or spite but then proceeds to attempt to prove how much

Defendant Cooper liked the Plaintiff in an apparent attempt to disprove the same by referring to

Coopers deposition testimony wherein he testified to liking the Plaintiff.

Defendant Coopers current counsel was not the Defendants attorney of record during

Defendant Coopers deposition and would not know that when Plaintiff first arrived at his former

counsels office for his deposition the first words out of Counsel Porters mouth to the Plaintiff

were, My client hates your guts. Dont go in there. Counsel Porter was referring to the

deposition conference room. (See Kieffer Affidavit; Wachs Affidavit). Additionally, Defendant

Cooper testified that he schemed for almost a year to get the Plaintiff out of the organization

after his billboard design was rejected in favor of the Plaintiffs (See Cooper Depo pages19-20).

He complained to the President of the organization that the only reason the Plaintiffs billboard

design was chosen over his was because she (referring to the Plaintiff) was sleeping with him.

(See Kieffer Affidavit)

Defendant Cooper claims in his Motion for Summary Judgment that the organization

formed an investigatory committee deemed the Financial Oversight Committee to monitor and

examine the way the organization was handling its funding. (See Defendant Coopers Motion

p.11) This is a patently false statement. The Financial Oversight Committee (FOC) was never

formed for this purpose. The FOC was merely formed to approve or disapprove expenditures

over a certain limit. It was never an investigatory committee and certainly never had the goals

stated by Cooper to ensure that the donations were protected, had transparency and oversight.

The wording of the motion to pass the creation of the formation of this committee is as follows:

The first motion is being submitted because some of the board members have

questioned the financial judiciousness of the most recent lawsuit filed against Sheriff Judd.

While these members have every concern for the safety and protections of EllenBeth,

nonetheless these members have raised concerns that the legal fees anticipated to address the two

lawsuits and the two criminal defenses we are currently engaged in will be far in excess of our

available funds and our potential ability to raise additional funds sufficient to satisfy these

obligations. Some board members are also concerned about their possible personal liabilities to

satisfy the legal expenses that could accrue. Consequently, these members, and possibly other

members of the board, feel that the suit filed against Sheriff Judd should have been engaged in

only upon approval of a majority vote of the board of directors. (See Wachs Affidavit Exhibit 1)

What this reasoning failed to take into account was that the Plaintiff did not need the approval of

the AoF board to file a personal civil rights lawsuit against the sheriff. She had every right to file

the lawsuit whether the organization and its board offered financial and/or moral support. In any

event, the motion specifically excluded fundraising events carried out by the Plaintiff. In this

email to the board explaining the formation of the FOC, Defendant Edward Gollobith explicitly

noted that this FOC did not apply when dealing with money that the Plaintiff had raised for her

legal defense fund. He stated, This would not pertain to fund-raising events promoted by John

or EllenBeth soliciting funds for their personal defenses. (See previous) He went on to confirm

this position in his deposition.

Q And who was to form the committee, the president, the chairman? Who? Who?

A I don't know at that particular time what the drafters of this amendment were

thinking, but what got approved by the board was that the committee would be made up of two

officers predetermined and three board members elected by the board.

Q So the version that I'm showing you in Exhibit 16, which starts out "the chairman

shall appoint," that's not the final version; correct?

A Correct. That's not how it was adopted by the board.

Q And on the bottom of the first page, there's a discussion about the funds raised, and

I think you say, "And absolutely this would not pertain to fund-raising events held by you or

EllenBeth soliciting funds for your personal defenses." Do you see that, sir?

A How many lines is that?

Q Right at the very bottom, last sentence of the first page.

A I see that.

Q So personal defenses, this would be Polk County vs. EllenBeth Wachs; Polk County

vs. John Kieffer? That's what you're talking about there?

A I think so.

Q So people are donating money for them to or they're soliciting funds for their

personal defenses? We're talking here about these criminal charges off this chart on the back of

Exhibit 12.

MR. PORTER: Object to the form.

THE WITNESS: What the sentence implies is that if funds are raised specifically for

their legal defenses, they will be used to pay for those particular legal defenses. It appears we're

suggesting that it doesn't even need to go through the organization's treasury if it's collected for

that particular specific need.

BY MR. BUESING:

Q Okay. I understand. And just so we've got this clear on the record, looking at this

chart, the Atheists of Florida vs. The City of Lakeland case, which I gather involves prayers in

public meetings, because of the basic --

A Invocations.

Q Invocations. Okay. But that is an AOF lawsuit? They were a party to that lawsuit;

right?

A Well, that depends on who would have won or lost it. If the case had been won, it

would have been EllenBeth's personal lawsuit. Since it was lost, now it's our lawsuit, and she's

an innocent bystander. But the fact is, Atheists of Florida filed the suit.

Q Right. And Atheists of Florida paid Eric Husby?

A That's right.

Q Okay. So I'm talking about the -- there's two criminal charges: one against John

Kieffer and one against EllenBeth Wachs. And those would be what you're referring to here

about personal defenses; right?

A I think so.

Q Okay. And did you view the malicious prosecution suit against Sheriff Grady Judd

as part of a strategy to deal with the criminal charges; in other words, cause them to drop the

criminal charges?

A Since I didn't file that suit and we were not appraised of before it was filed, we were

left to speculate on our own as to specifically why that had been filed.

Q But just so it's 100 percent clear on the record, the record shows that the board

unanimously voted to approve the budget with a $25,000 retainer for Larry Walters for that

lawsuit; right?

A Right, but we didn't understand that that suit was going to be used as a bargaining

chip against the criminal charges, if that's what you were asking me.

Q Was there a discussion somewhere in July 2011 about personal liability of the

directors?

A I recall some discussion about that at board meetings, and it could have been that

particular board meeting.

MR. BUESING: Let's mark this, please.

BY MR. BUESING:

Q First, can you identify Exhibit 17 as your email to Steve Brown?

A It appears to be my response to some issues that he addressed about the motions.

Q On what basis -- "My concern is that after we exhaust all the funds we have on hand

and are unable to raise sufficient funds from outside the organization, we may be faced with the

situation of having to fund the suits ourselves or see them dropped for lack of funding." You're

talking here about the Lakeland suit and the Grady Judd suit?

A I don't know if it was both suits. It probably was both suits, because we were led to

believe that the suit against Grady Judd would be prosecuted to a conclusion that would be in our

favor and we would see all of our legal expenses recovered from the county.

Q It's an injunction suit, sir, not a damages suit. What do you mean "in our favor"?

MR. PORTER: Objection. Argumentative.

THE WITNESS: It means at the end of this lawsuit, it asks for damages and legal

expenses, so I, not being an attorney, interpreted that to mean that if we win the suit, we will

recover the cost of prosecuting it.

BY MR. BUESING:

Q Well, are we now clear that directors have no personal liability here for an ongoing

lawsuit of a corporation like Atheists of Florida, Inc.?

MR. PORTER: Objection. Calls for a legal conclusion.

BY MR. BUESING:

Q I think you just said, "I could have worded that better." You weren't saying the

directors were going to be personally liable; you're just saying the suit would have to be dropped

if we ran out of money?

A That's what it looks like I was implying in this email, that if the organization ran out

of money, then we either need to fund it from our own personal assets or drop it for lack of funds

or donated funds to continue it.

Q By the way, does AOF have directors' and officers' insurance?

A We looked into that several years ago and discovered it would cost the equivalent of

the entire income of the organization per year so we were never able to purchase it.

Q Have you turned this litigation over or tendered it to your personal insurance

company?

A No.

BY MR. BUESING:

Q Have you ever seen this email before?

A I don't remember it.

Q You see in the middle of Christos's email, he says that any donations to EllenBeth's

legal fund are not tax-exempt?

A I see that, yes.

Q And are you aware of whether John Kieffer in fact changed the website to make that

clear, that such donations would not be tax-exempt?

A I'm not aware of whether or not that was so specified on the website.

Q Is this consistent with what you've said in Exhibit 16, that naturally this would not

pertain to fund-raising events held by you or EllenBeth soliciting funds for your personal

defenses? Is that the same basic concept here?

A Let's see. This is written by Christos, and Christos is a merchant mariner who

immigrated here from Greece. And I think he has some confused perceptions of United States tax

laws so I wouldn't put much credibility in any opinion he expresses about tax law.

Q Let me show you 19, an email from you, July 25th, titled, "Oops." In addition to

being a Greek merchant marine immigrant, did he also not realize that your little group was not

supposed to share these statements with everybody else on the board or the officers?

A That's correct.

Q Because your group wanted to collaborate and keep it confidential from EllenBeth

Wachs and John Kieffer; right? (Gollobith depo pages 181-188)

BY MR. BUESING:

Q And I think all the versions of motions I've seen talk about in excess of a thousand

dollars --

A That's what I recall.

Q -- being the trigger point. And this is really relating to the money that was in the

bank account of AOF, using AOF's funds?

A That's right, the account, the CD, donated funds through PayPal or whatever.

Q Is there a way for a citizen -- at that time was there a way for a citizen to donate

through PayPal to the EllenBeth Legal Defense Fund?

A You're getting out of my realm here, because I know very little about PayPal, how it

works. I never had any involvement with it. All I knew was that a PayPal account was set up and

could receive donations. I can't tell you when that happened. I don't know how it works. So, I

could only testify that I was aware that there was a PayPal account.

Q Well, I'm back to this last line on the first page of Exhibit 16 that "naturally this

would not pertain to fund-raising events held by you or EllenBeth soliciting funds for your

personal defenses. Is there any reason that the financial oversight committee needs to even meet

with respect to funds that had been raised for her personal defenses?

MR. PORTER: Objection. It calls for a legal conclusion.

BY MR. BUESING:

Q You can answer.

A I think we would have considered that an action already underway that the board

would have agreed to fund. So if donations came in for that, they could be used for those

expenses. Again, the oversight committee was being formed to control future expenses of the

organization and endeavors that get us into very expensive litigation.

Q Well, I'm reading the motion which says "would cause the expenditure of funds by

AOF in excess of a thousand dollars," and I gather from your answer a minute ago, that means

AOF's funds?

A That's right.

Q So if somebody were to donate and say, here, make sure it gets to the EllenBeth

Legal Defense Fund, that would not be an AOF fund; right?

MR. PORTER: Objection. Argumentative.

THE WITNESS: If it was being donated to pay for an action that was already in process,

then it could be used to pay for legal fees that were incurred by that activity. It seemed a little

disingenuous that somebody would donate money to a fund for a lawsuit that had not yet been

filed. So it would pertain to actions that the organization were already involved in.

BY MR. BUESING:

Q You are basically going back to these four litigation matters that are on this chart, in

the July 6th document?

A That's right.

Q Just out of curiosity, has the financial oversight committee met to approve your use

of the funds at AOF for this lawsuit that we're sitting in here today in?

MR. PORTER: Objection to relevance.

THE WITNESS: Not yet.

MR. BUESING: I didn't think so.

BY MR. BUESING:

Q So that would be unauthorized; true?

A Not if the funds are repaid to the organization. Funds would come right back in.

Q So you are doing it as a loan that the organization is making to you personally?

MR. PORTER: Objection. It calls for legal conclusion.

THE WITNESS: No, I don't.

BY MR. BUESING:

Q Is there a promissory note, an interest rate, monthly payments, anything like that?

A No, sir.

Q Because the motion talks about approving the implementation of any lawsuit, legal

action, or expenditure taken on behalf of Atheists of Florida that would be anticipated to cause

the expenditure of funds by AOF in excess of $1,000; right? That's the way you worded it?

A That's right.

Q And this -- I think we have here in this case a lawsuit filed by AOF? We have

counterclaims by AOF?

A That's right.

Q Are you still on the financial oversight committee?

A I think I am.

Q Who else is on it?

A The treasurer and secretary are always on it. And I'd have to look it up. I think we

did allege some different members to it.

Q Has it met in the last, say, two years?

A No, sir.

Q So is this another one of those things that, you know, just applied to EllenBeth

Wachs and John Kieffer, but once they are gone, you don't really need it anymore?

A No. We continue to use it.

Q But you haven't met in two years?

A That's what I testified to.

Q You mentioned that there was a $5,000 check from a donor out in California?

A I did.

Q And what's the name of that donor?

A Eddie Tabish.

Q And you understand that that check was for the specific purpose of assisting Ms.

Wachs in her legal expenses?

MR. PORTER: Objection. Argumentative and pure speculation.

BY MR. BUESING:

Q If you don't know, say you don't know.

MR. PORTER: Why don't you show him the check? Let's talk about it.

BY MR. BUESING:

Q Either you know or you don't know.

A I understand that he donated those funds to our organization for the purpose of

paying her legal fees.

Q We started out today, this morning, talking about the restricted bequests -- excuse

me the unrestricted bequests of some generous folks who donated money to this organization.

Did you understand what that means, when funds are restricted or unrestricted?

MR. PORTER: Objection. Calls for legal a conclusion.

THE WITNESS: I think I do.

BY MR. BUESING:

Q So if a donor says it's $5,000 restricted for the purpose of funding EllenBeth Wachs'

legal expenses, then you, as an organization, must comply with that restriction; correct?

MR. PORTER: Objection. Calls for a legal conclusion.

THE WITNESS: I think that's true.

BY MR. BUESING:

Q And it would be -- if not illegal, it would at least be very bad form to take the

money from a donor that's restricted and apply it somewhere else; right?

MR. PORTER: Objection. It calls for speculation. There's no foundation that they took

the money.

THE WITNESS: So you're saying, like, if the money was donated for legal fees and

given to an individual to use to go to the mall and make a car payment or take a vacation to

Vegas, that that would be inappropriate? I would agree with that, yes.

BY MR. BUESING:

Q No. I'm saying if AOF has restricted funds that are for a particular person's legal

expenses and AOF doesn't turn the money over, that would be both illegal and bad form, would

it not?

MR. PORTER: Actually, I object. It calls for a legal conclusion. The Florida statutes and

IRS regulations are very specific about these issues.

THE WITNESS: Which is exactly what my response would be. If the money is donated

to the organization, then state statutes required that it goes into the organization's accounts.

BY MR. BUESING:

Q Right. But if it's a restricted donation, sir.

MR. PORTER: Objection. Argumentative.

BY MR. BUESING:

Q If it's a restricted donation, the organization must comply with the restriction;

correct?

MR. PORTER: Objection. Argumentative. Asked and answered and calls for a legal

conclusion.

THE WITNESS: I think so.

(Gollobith dep pages191-196 )

On July 14, 2011, Defendant Edward Gollobith emailed a draft version of these motions

to his co-conspirators Defendant Matthew Cooper, Defendant Gloria Julius and Defendant Steve

Brown. In response, Defendant Julius asked, Will the second motion eliminate EB's requests for

donations to her lawsuits? Will any monies received in her personal fund raisers be turned over

to the A of F?(See Wachs Affidavit Exhibit 3). In response to Defendant Julius, Defendant

Cooper answered, No and no ?(See Wachs Affidavit Exhibit 4). Defendant Cooper knew

the Plaintiff was raising funds personally and knew that AoF was not entitled to these monies yet

accused her of stealing this very same money. That is the definition of acting with malice.

Furthermore, Defendant Cooper knew the statements made in the November 6 email to

the members that the Plaintiff had misappropriated funds was a lie as he had participated in the

September 11, 2011 FOC meeting that approved the disbursement of the funds. (See Kieffer

Affidavit). At the very least, there is documented evidence that he most certainly exhibited

serious doubt as to whether the statement was true or false. On November 4, 2011, two days

prior to the defamatory writing, Defendant Edward Gollobith emailed Rob Curry and stated, Hi,

Rob, I've worked up a chart that may assist you in composing a clearer picture of the legal

expenses we have run up and attached same for your review. See you Sunday. Golly (See

Wachs Affidavit Exhibit 2). Attached to this email was a spreadsheet created by Defendant

Cooper which referenced the $18,000 in question. Defendant Cooper refers to this money as

legal fees and has question marks in the boxes. He certainly does not designate this money as

misappropriated or stolen funds. For example, in the box designated Type of Action Defendant

Cooper placed a question mark. In the box designated name to refer to the case name,

Defendant Cooper placed a question mark. In the box designated charge Defendant Cooper

placed a question mark. In the box designated attorney Defendant Cooper placed John

McKnights name.

31 October, 2011

TYPE OF ACTION

NAME CHARGE CURRENT STATUS

ATTORNEY

AMOUNT PAID DATE (SOURCE OF CHK)

NOTES (ALL CHECKS FROM A OF F SIGNED BY KIEFFER)

DESIRED OUTCOME

Lawsuit Atheists of Florida v City of Lakeland

Invocation violates separation of state and church

Discovery completed?

Eric Husby $20,299.27 June 2011 (A of F)

Husby is a member of A of F. His fees are not in contention. Prior approval obtained by board to file.

Court order to remove prayer

Lawsuit EllenBeth Wachs v Polk County Sheriff Judd

Malicious prosecution

Dropped approximately Oct. 2011

Larry Walters

$25,000 retainer June 2011 (est) (A of F)

Suit filed without prior approval of A of F board. Board apprvd expense at 6/26/2011 board mtg

Prevent Judd from making frivolous arrests of Wachs.

Charge Polk County v John Kieffer

Disruption of Polk County School Board Meeting, disruption of religious ceremony, and resisting arrest

Trial expected to begin Jan 5 2012

Nick Ficarotta

Private Investigator

$3,500 June 2011 Kieffer

$7,000 July 2011 (A of F)

$2,000 Sept 2011 (A of F)

Kieffer reimbursed $3,500 by A of F Ck No. 3081 6/30/11

Kieffer changed attorney seeks refund of $7,000 from Ficarotta.

Kieffer has paid $10,000 to new attorney and wants A of F to reimburse him. Financial Oversight Committee agreed pending production of documentation of legal expenses due 10-26. Documents still not produced by Wachs.

Acquittal

Interview attendees at meeting for evidence

Charge Polk County v EllenBeth Wachs

Misrepresentation, misdemeanor marijuana, felony sex charge

Dismissed (Adjudication withheld) 2 yr probation plus fees for invstgtn and court costs

John Liguori $10,000 Mar 11 (A of F) $ 7,500 Jun 11 (A of F)

$5,000 Jun 11 Kiefferpersonal

Kieffer reimbursed $5,000 by A of F Ck No. 3081 6/30/11

?

?

?

?

John McKnight $18,040.92 (A of F)

$18,040.92 Oct 18, 2011 (A of F)

A of F check designated EB Wachs Legal Fund

?

(See Wachs Affidavit Exhibit 2a)

Additionally, in an email to Defendant Peterson on November 2, 2011, Defendant

Cooper includes a smoking gun document, one that arguably concedes this case on the

Defendants behalf. Defendant Cooper included a list of questions about how the

Defendant could get the Plaintiff and John Kieffer out of the organization. He was

incredibly worried that the Plaintiff would simply get re-elected during the upcoming

elections due to her fame. Most notable in this list was the fact that Defendant Cooper

barely mentioned possible financial irregularities as an aside. It is clear that the

overwhelming concern by Defendant Cooper is his perception that a coup is taking place

despite the fact that the Plaintiff was the presiding officer of the organization and it was

he that was perpetrating the coup:

Lawyer-Client Privileged

The non-profit organization Atheists of Florida is experiencing an illicit

power grab by the Acting President and the President, which has been largely

completed. As the environment has shifted over the past year towards

dictatorship, management by accusation and parliamentary confrontation and

obstruction, it is now necessary for the task of determining strategy for restoring

democracy to shift from the ex-Election Coordinator to an experienced legal team.

It is necessary for this legal team to provide the Chairman with complete direction

and support for this project to succeed.

Legal Team Background Questions

1. What experience do you have in non-profit organizations issues

regarding bylaw violations, election improprieties and possible financial

irregularities?

2. Will you provide an honest appraisal of the most likely outcome, the

probability of success, and a range of costs?

Legal and Strategy Questions

1. Can the election now underway be stopped? How?

2. Can EllenBeth Wachs be removed as Acting President and Vice

President? How?

3. Can John Keiffer be removed as President? How?

4. Can they be removed from the Board? How?

5. Can EllenBeth Wachs be removed from the organization? How?

6. Can you guide Ed (the Chairman) every step of the way?

7. How will you counter and overcome parliamentary obstructions and

debate?

8. What if they refuse to comply?

9. The Board vote to reject the election Committee nominees is complete.

What should be done with the results and when?

10. Who interprets the Bylaws, ultimately? How is this interpretation

enforced?

11. What if President and acting President bring their own lawyer to the

board meeting?

12. If election is rerun fairly and Wachs and Keiffer are reelected to the

new board due to their fame, isnt the organization back where we are now?

13. What bearing do control of finances, web site, membership list and

local groups have on strategy and procedures to undo the power grab now

underway.

14. A breakdown of board member loyalties is attached. What is benefit or

risk to sharing the election chronology document with any of them (none really

know the whole story)? Allies? Unknowns? Is there a legal risk to sharing this

document with others?

15. Do possible psychiatric issues on the part of Wachs have a bearing on

the case?

16. Does the personal relationship between Wachs and Keiffer have a

bearing on the case?

17. How should claims that this is undermining the criminal defense of

Keiffer be addressed (he goes on trial in 2 weeks or so)?

18. How can a lawyer be authorized to be present and make rulings in a

board meeting?

19. Acting President will continue to make often vitriolic or sarcastic

claims and counterclaims via broadcast mail, Twitter, Facebook, newsletter, etc.

What response, if any, is appropriate in each case?

20. Do the bylaws authorize the President to dictate the actions of Chapter

directors? Of board appointees? If so, what is the proper response if these dictates

are contrary to the bylaws or motions of the Board?

21. If President and acting President are declared removed, what is the

best way to transfer all power, including passwords, keys, signing authority and

notification of membership?

22. What is the proper response of the Tampa Chapter Director to being

removed from the meetup.com group, but not notified of being removed as

Chapter Director? He was not sent, and has not read, an accusatory email sent to

all other board members (and possibly chapter members). Is a reinstatement fight

useful or costly at the board meeting?

23. At what point can the ex-Election Coordinator/Chapter Director

remove himself from the organization without penalizing efforts to restore

democracy?

Important upcoming dates:

Nov 1: Voting opens

Nov 6 10 am: Board meeting

Nov 23?: Voting closes

Dec 1: New board announced

Jan or Feb: New board elects new Pres, VP, Chair

(See Wachs Affidavit Cooper Dep Exhibit 11).

It is patently clear that Defendant Cooper is entertaining serious doubt about the

statements truth. It is the epitome of reckless disregard (and therefore malice) to make

the public statement that the Plaintiff misappropriated the organizations funds thereby

accusing the Plaintiff of a crime while at the same time holding the private opinion that

there are only possible financial irregularities, while being obviously more concerned

about the control of the organization.

OPINION & HYPBERBOLE

The right to speak freely and openly is most certainly guaranteed by the First Amendment

to the Constitution. This includes the right to voice nasty opinions, harshly criticize others, and

comment on matters of public interest. It also protects the use of hyperbole and outrageous

declarations when it is patently clear that these are being used as rhetorical tactics. Therefore,

one can safely state that others are morons, old drunk lechers who prey on young pretty women,

jerks, failures, etc. even though these statements might hurt the subject's feelings or diminish

their reputations. Such terms represent what are called "pure opinions" because they can't be

proven true or false. In the case cited by Defendant Cooper, Hay v. Independent Newspapers,

Inc.450 So. 2d 293 (Fla. 2nd

DCA 1984), the Defendant explains how the case is similar to the

Plaintiffs in that a private individual brought suit against a newspaper because a letter to the

editor was published referring to the individual as a crook and a criminal. The Second

District Court of Appeals held the references were expressions of opinion after looking at the

totality of the circumstances. The Hay case is distinguishable from the instant case because the

appellate court stated, the letter was directed not toward the appellant, but toward the judicial

system. Id. In his argument, the Defendant then makes a new defamatory statement that a

criminal investigation existed as to the financial issues that were the basis of the defamation.

This is patently false. At the time the defamatory statement was published, no criminal

investigation existed. Defendant Cooper then further states that the context of the email was an

opinion that the organizations funds should not be used to finance Wachs lawsuit. This is

hardly the case when the defamatory email simply states that the Plaintiff has been removed

from the organization for misappropriating the organizations funds It is absurd to think that

accusing someone of being a thief in connection with their non-profit board membership is

merely opinion or hyperbole. Stating outright that a person has misappropriated funds is

clearly a statement of fact as opposed to a pure opinion, but even opinions can be defamatory if

they imply some false underlying facts.

Whether a statement is one of fact or one of opinion is a question of law. From v.

Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981) petition for review denied 412

So.2d 465 (Fla. 1982). False statements of fact of or concerning a private person are not

protected by the Constitution, but expressions of opinion are. Gertz v. Robert Welch, Inc., 418

U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

There is a distinction between pure expression of opinion and mixed expression of facts

and opinion. Pure opinion is based upon facts that the communicator sets forth in a publication,

or that are otherwise known or available to the reader or the listener as a member of the public.

Mixed opinion is based upon facts regarding a person or his conduct that are neither stated in the

publication nor assumed to exist by a party exposed to the communication. From. Rather, the

communicator implies that a concealed or undisclosed set of defamatory facts would confirm his

opinion. Kotlikoff v. The Community News, 444 A.2d 1086 (N.J. 1982). Pure opinion is protected

under the First Amendment, but mixed opinion is not. See From. As with the case in the

defamatory email, Defendant Coopers message the Plaintiff misappropriated funds implies

that he holds secret and/or undisclosed information that would confirm to the readers that the

Plaintiff is, indeed, a thief, if they only knew what he knew.

Defendant Cooper alleges that Cooper made it clear in his deposition that he like[d]

EllenBeth Wachs right now and liked her [during the investigation], he indicated serious

concerns about the way in which Wachs was handling the money. (Citing to Cooper Dep at 29,

44). However, the deposition transcript actually says no such thing because there was no

investigation and Plaintiff Wachs never handled any money. The testimony had nothing

whatsoever to do with money. What Defendant Cooper actually testified to was:

Q. On June 26, 2011, you did not like EllenBeth Wachs?

A. I like EllenBeth Wachs right now. I liked her then.

Q. Really?

A. The --

Q. We'll get to that.

A. Okay.

Q. And you spent the next several months trying to convince other board members to

turn against her?

A Conversations that I had about the work that I saw -- no. Short answer is no.

There is no

Q. Do you know why you would have told people that you spent ...

THE WITNESS: You want that? Do you want to hold on to that, or --

MR. PORTER: Just set it right there.

BY MR. BUESING:

Q. Do you know why you would have told other people how difficult it was to

convince other members of board, including Ed Golly, how serious matters had become?

A. Something along those lines, yeah. That's -- that would be what I could have said,

Uh-huh.

Q. Right. So you were the one who was busy trying to convince other members of

the board how serious matters had become with respect to EllenBeth; correct?

A. With respects to what EllenBeth seemed to be working on, I was definitely

concerned.

Q. Right. And this meeting with Ed Golly,Goll -- Gollobith -- on June 26th after the

board meeting, was an opportunity for you to express your concern. And to your amazement, he

was completely, solidly behind EllenBeth Wachs.

MR. PORTER: Object to the form.

A. I don't remember if he was or not. But if he had asked my opinion, I -- I think I

would have given something close to what you -- what you just summarized: That -- or what I

just summarized. And these are -- these were things that concerned me about how things were

being run and organized.

BY MR. BUESING:

Q. Do you have a problem with brash, outspoken women? Wouldn't you agree with

me she's a brash, outspoken woman, sometimes sarcastic?

A. I -- I don't see why -- why I would. It's a poor use of your -- of, you know,

disagree poor use of your energy. No.

Q. But you were suspicious of her -- have we finally got that all straightened out --

because of what happened on the billboard issue? In fact, didn't you even want, at one point, to

resign over this -- this flag issue? Didn't you tell John Kieffer that --

A. I would have been -- if I had resigned over the issue, it, again, wouldn't have been

over the flag issue itself. It would have been over their handling of the flag issue. (Cooper depo

pages 29-31).

Indeed, at no point during the referenced portion of the Cooper deposition does

Defendant Cooper make any statements indicating serious concerns about the way in which

Wachs was handling the money. If he had done so, it would have been perjury as Defendant

Cooper was well aware that Plaintiff Wachs did not have access to any of the AoF bank

accounts. Cooper was upset over their handling of the flag issue. He accused the President of

the organization of choosing the Plaintiffs billboard design over his inferior one because he (the

President) was sleeping with her and from that moment forward held a grudge. (See Kieffer

Affidavit)

As a final argument, Defendant Cooper states the language used in the defamation was

the verbatim language from the AoF bylaws. Defendant Cooper cannot make the claim that this

is protected opinion while at the same time arguing that he simply utilized boilerplate language

from the organizations bylaws. Either way, it still constitutes reckless disregard to utilize

boilerplate language to defame an officer in an illegal removal.

It is patently clear that Defendants counsel is unfamiliar with the facts of the case or

simply chooses to misrepresent them as they continue to put forth the nonsense allegation that

Plaintiff first conspired with Grady Judd to get herself arrested complete with a SWAT team and

evidence van arriving at her house pointing guns at her and her employees. She then apparently

conspired again with Grady to arrest her a second time and accuse her of the heinous crime of

being lewd and lascivious within the confines of her own bedroom. Somehow, she and Grady

decided together it would be a terrific idea to put her into solitary confinement without her

medicine. The fact that Defendant Coopers counsel is repeating this ludicrous proposition in

their motion despite having been challenged about this in deposition is appalling.

Q. Well, do you recall staying after staying behind after the board meeting to discuss

lawsuits with Ed Gollobith?

A. Our purpose would not have been to discuss the lawsuits or the outcome of us being

there a lot of time. The outcome would have been for us to touch on the lawsuits.

Q. And did --

A. And --

Q. you --

A. it's my feeling that if -- if we're going to subject ourselves to arrest and then we

should be as we should plan it as as best we personally can.

Q. How is it, sir, that somebody is supposed to plan that a SWAT team will descend

on your house and charge you with harassing charges?

MR. PORTER: Object to the form. Argumentive.

MR. BUESING: Okay.

A. The yeah, I think it may be kind of doing it in a in a different chronchial (sic)

order chronological order than I would have expected: This you're you're you're asking about the

EllenBeth arrests and I was saying that the events that led to the EllenBeth arrests should be as

well planned as possible. In other words, if we're if we're putting us ourselves up in a very

volatile situation, we should be ready to expect that there can be press there and should be ready

to do things like document what's happening as it's happening and-- and so on. I think what that's

what he's referring to when we're talking about the yeah. This one one thing to look at here is is

you saying at the SWAT team at her house and this is referring to John's arrest for his his

activities.

Q. Well, sir, it refers to all of them, doesn't it? John and EllenBeth did not interrupt

the school board meeting since it had not yet been called to order. EllenBeth was not engaged in

any legal representation of any individual or the Atheists of Florida. The fact that the sheriff sent

a SWAT team to invade her home over the false allegation that she was engaged in the

unlicensed practice of law indicates that the sheriff was absolutely engaged in harassment of her

simply because she had challenged his right to give county property to religious organizations in

violation of the state constitution. Do you see that, sir?

MR. PORTER: Object --

A. Yeah --

MR. PORTER: -- to the --

A. I'm --

MR. PORTER: form.

A. reading along with you. I'm -- I'm reading along with you.

BY MR. BUESING:

Q. I mean, in this discussion, Ed Gollobith was the chairman of her fan club,

defending her every step of the way in your discussion with him.

MR. PORTER: Object to the form.

BY MR. BUESING:

Q. You were --

A. Can --

Q. -- the one --

A. Can --

Q. -- who was suspicious. Ed was defending her; right?

A. I don't see that 11 months of -- of being suspicious. Is -- is that part of the question

we're asking here or not? Is --

Q. No.

A. Okay.

Q. I'm just -- I'm positing, sir -- this is cross-examination. I am --

A. Yeah.

Q. -- positing that you arrived at this board in a suspicious frame of mind because you

had some to-do over a billboard. And you stayed after the board meeting and you discussed the

lawsuits. And of all people, Ed Gollobith defends EllenBeth through every single one of these

items.

A. And what -- sorry. I --

Q. I'll -- I'll rephrase it --

A. Yeah.

Q. -- sir.

A. Yeah. As much as you can tell me about what -- what you're asking in the -- in the

simplest way possible would be a help.

Q. You arrive at the board. You bring with you a suspicion of EllenBeth. You find the

board having a love fest for Ellen -- EllenBeth. They're crazy about her. You spend the next few

months trying to convince the board members to turn against her, and you ultimately succeed.

You do get the board members to turn against her. You, sir, are the one who put in motion what

we're suing about in this case.

MR. PORTER: Object to the form.

A. . I objected to the activity not being well planned, and I think it could have been

done better from that perspective.

BY MR. BUESING:

Q. And how, sir, can you plan to be put in solitary confinement for a week? How does

that work? Do you call the sheriff and say, "Gee, I'm busy that week. Would you come the next

week?"

A. I don't remember having her -- wanting her to be in jail. What I wanted for AOF in

the future is to think of these as projects as to -- as to be dangerous projects that can be done, and

we take them on because they are covering an -- an important point. And there was no reason not

to -- no reason to -- to -- blank -- blankly say that will take care of itself if it's not well -- well

executed. (See Cooper dep. pages 24-29):

The dangerous project that the Plaintiff undertook that Defendant Cooper refers to was

a simple public records request made on behalf of the organization at the behest of the

organization. This is the context of Coopers deposition testimony. It has absolutely no

relevance to the defamatory statement emailed to the members on November 6, 2011. To then

try to claim that the statement, EllenBeth Wachs ha[s] been expelled formisappropriating

the organizations funds1 merely was intended to convey an opinion that organization funds

should not be used to finance the Plaintiffs lawsuit is simply absurd. No tortured reading of this

statement can render that conclusion without having any further inside information.

Misappropriate is defined as dishonestly or unfairly take (something, especially money,

belonging to another) for one's own use. (Merriam Webster) To accuse another of being guilty of

this is classic defamation per se. The Supreme Court of Florida has held that a person commits

libel per se when he charges that another is a crook, unless the communication is privileged.

Hay at 296 citing Commander v. Pedersen, 116 Fla. 148, 156 So. 337 (Fla S. Ct 1934).

PRIVILEGE

This issue is Res Judicata. On August 19, 2014, the Honorable Judge Stephens heard

arguments as to the issue of whether the board members had qualified immunity for statements

made by a director regarding organizational management or policy. He outright rejected it and

denied the Motion for Partial Summary Judgment. (See Exhibit 5)

Furthermore, on October 25, 2011, Defendant Cooper was removed as Tampa Chapter

Director. Removing Defendant Cooper as Chapter Director stripped him of his seat on the AoF

Board. He was included in the email to the board notifying him of this and he was well aware of

this. (See Wachs Affidavit Exhibit 6) Indeed, he pondered whether a reinstatement fight was

worth having at the upcoming November 6 board meeting. (See Wachs Affidavit Cooper Dep

Exhibit 11). For Defendant Coopers counsel to allege that Defendant Cooper was not interested

1 The full defamatory email read This message is to inform you that the Board of Directors of the

Atheists of Florida met earlier today. As a result of recent developments, the Board voted to remove EllenBeth

Wachs as Vice President, and to remove John Kieffer as President of the Organization. Please be aware that they no

longer speak for the Atheists of Florida, and are not authorized to use Atheists of Florida mailing lists. Additionally,

both have been expelled from the membership for seriously obstructing the organizations business, misappropriating the organizations name, misappropriating the organizations funds, and acting in a way that discredits the organization

in having power or authority is completely disingenuous and a misrepresentation of the facts

regardless of the state of his health. Defendant Cooper had every intention of continuing on in

some leadership capacity in the organization. He submitted his resignation only after learning

that the Plaintiff was going to sue him for defaming her. (See Wachs Affidavit)

Defendant Cooper had no board position or board authority on November 6, 2011, a fact

which he acknowledged in an email sent by his wife, Dawn Cooper, in February 2012.

Ed, I am replying on behalf of my husband, Matt Cooper. I have read the email below and relayed the information to Matt, we are sorry that this situation continues to persist but pleased that it appears that you and the rest of the gang seem to be making progress. Unfortunately, Matthew's health has taken a bit of a turn for the worse... he will begin chemo therapy as of Tuesday and will continue to do so for the next 6 months. Because of this he will not be able to contribute. Matt mentioned to me and Jim, and I quote... that he would suggest that future chapter director membership on the board be limited to properly elected chapter directors whose inclusion is also voted by the board and who continue to follow all board directives including ceding all copyrights, trademarks, log in IDs, passwords, contact and membership information related to their duties to the corporation as represented by the board. He also recommended that draft bylaws must be vetted by legal counsel and the entire set of bylaws should be rebuilt from scratch using commonly accepted boilerplate with built in defenses against the type of attacks we have experienced. He also pointed out that the president as well as the board now has and has always had the power to remove any chapter director at any time, especially one that has been appointed and or one that refuses to turn over passwords as required by an earlier board motion. We both wish you the best of luck and continued progress! Dawn (See Wachs Affidavit Exhibit 7)

Defendant Cooper was appointed Chapter Director by President John Kieffer. Therefore,

he was subject to removal by the president which happened on October 25, 2011. (See Wachs

Affidavit Exhibit 6) Therefore, according to Defendant Cooper, he wasnt even a board

member on November 6, 2011. Accordingly, he is not entitled to qualified immunity even

assuming appropriate circumstances.

Where the circumstances and content of allegedly defamatory statements are clearly

disputed by the parties, the jury should determine, under proper instructions from the court,

whether or not the communication was privileged. Abraham v. Baldwin, 42 So. 591 (Fla. 1906).

Where evidence is disputed as to the existence or nonexistence of a privilege, there is a mixed

question of law and fact and the fact issue is to be determined by the jury. Hartley & Parker, Inc.

v. Copeland, 51 So.2d 789 (Fla. 1951); see also Glickman v. Potamkin, 454 So.2d 612 (Fla. 3d

DCA 1984) (in a defamation action, the affirmative defenses of truth, good motive, and qualified

privilege present factual questions for resolution by the jury), review denied, 461 So.2d 115 (Fla.

1985). Here it is certainly disputed whether or not Defendant Cooper was even a board member

on November 6, 2011 therefore, it is certainly disputed whether any privilege should attach.

Assuming for the moment that Defendant Cooper was a board member, the statement

accusing Plaintiff of being of thief was still made maliciously as Plaintiff did not have any

check-writing powers and Defendant Cooper and the other FOC members knew this. Plaintiff

Wachs never wrote a single check prior to the defamatory statement being sent. Indeed, in her

deposition Tracy Thomas, an FOC member, testified that she KNEW the money was donated for

the Plaintiffs legal defense fund and did NO investigation because she had made up her mind

without even bothering to contact the Plaintiff or do any investigation contrary to Coopers

assertions that such investigations occurred as described his motion.

Q Okay. So it could be possible that three FOC members could have met with me, and

you would not have been a part of that, would that be correct?

A That is correct.

Q Okay. So could it be -- so could it be possible that somebody stole the checkbook and

wrote an $18,000 check?

A Anything is possible.

Q Okay. So the question is, why not get on the phone -- you have my phone number --

and say, "Hey, John, what is this all about, about this $18,000". Why didn't you do that?

A I think I answered that already

Q Because you made up your mind that it was just unapproved?

A Unapproved.

Q Unapproved?

A Correct.

Q You just made up your mind about that?

A That is correct.

Q Did you contact Ms. Wachs about this $18,000 check?

A I did not.

Q Why not?

A Same reason.

Q She didn't write the check?

A It was unapproved.

Q She did not write the check?

A (No response).

Q She did not write the check?

A Yes.

Q Why did you not contact Ms. Wachs about the $18,000 check?

MR. PORTER: Objection. You asked it, she answered, and now you are asking again. So

you are arguing with her.

A I didn't ask a lot of Board members about the check. I did not ask EllenBeth Wachs

about the18 check.

Q Okay. So who else -- you said that Ms. Owens told you about this check, as well, is

that correct?

A Yes.

MR. PORTER: Objection. She said she discussed it with Owens. She answered before I

could really get my objection out. Please take your time and give me an opportunity.

THE WITNESS: Okay.

Q Did you ask if Ms. Owens had communicated with me about this check?

A I did not ask.

Q Why not?

A Because it was not approved.

Q Did you ask if Ms. Owens communicated to Ms. Wachs about this check?

A I did not ask.

Q So tell me the total number of people that told you or discussed with you or

communicated with you about this $18,000 check.

MR. PORTER: Before November 6?

Q Before November 6.

MR. KIEFFER: Thank you.

A I don't recall how many other people I spoke to about it. I do remember speaking to Ed

and to Nan about it.

Q Okay. Have you since November 6 learned that the amount of this check, which is

$18,040.92 -- $18,040.92 -- represented donations to the penny made to Ms. Wachs prior to

September 5, 2011?

MR. PORTER: Object to the form.

Q Have you ever discovered that is what that $18,000 represented?

A Yes. That is what has been reported. I do not know the exact -- actual accounting, but

that is what has been represented, yes.

Q Okay. So prior to November 6, you were not told or you did not investigate the source

of this $18,040.92 check, is that correct?

A No. I understood that is where the money came from.

Q From donations --

A Yes.

Q -- prior to November 6?

A Yes, I understood.

Q You understood that it came from donations to Ms. Wachs -- to Ms. Wachs, is that

correct?

A That was my understanding. (Emph. Added)

Q Okay. So if these donations were made to Ms. Wachs, why would she need Board

approval or FOC approval for me to write an -- this $18,000 check to her attorney?

A The checks were not written to EllenBeth Wachs.

Q I believe I stated that I wrote it to her attorney.

A The checks were not written to EllenBeth Wachs. They were written to Atheists of

Florida. The donations were made to Atheists of Florida.

Q On behalf -- were these donations made on behalf of EllenBeth Wachs?

MR. PORTER: Objection. Calls for a legal conclusion.

Q Okay. So you are aware -- let me get -- understand what you are representing here.

You are aware that the $18,040.92, all of that money represented donations made on behalf of

EllenBeth Wachs?

A They were donations made to Atheists of Florida.

Q Well, donations can be made to Atheists of Florida in numerous ways: To the building

fund, it could be made to a generic legal fund, it could be made to a number of other potential

things we had going on. Were you aware prior to November 6 that each and every one of those

donations was made for EllenBeth Wachs' legal fund?

A Legal defense, yes, that was my understanding.

Q So we have that clear. Got it. So I just want to make sure, prior to November 6, 2011

you were aware that $18,040.92 was donated by other people through AOF for Ellenbeth Wachs'

legal fund?

A For her legal defense, yes. (Emph. Added) (See Thomas depo pages 64-69)

The Defendants created a damned if you do, damned if you dont scenario for the

Plaintiff, in which the Motion that was passed clearly indicated that the Plaintiff didnt need FOC

approval for disbursement of funds she raised for her legal defense but when the funds she raised

for her legal defense were disbursed to her attorney she was accused of stealing those same funds

for not getting the FOC approval she didnt need. This is not just bad faith, this is clearly

malicious. This scenario was hatched behind the scenes by the Defendants in secret in a series of

covert meetings they purposefully hid from the Plaintiff and the President, John Kieffer.

SUMMARY

Defendant Cooper claims that the Plaintiff is a limited purpose public figure but does not

identify the particular public controversy that the Plaintiff supposedly thrust herself into

voluntarily in order to influence the outcome. Assuming arguendo that Plaintiff is deemed a

public figure, Defendant Cooper acted with overt malice when he accused her of stealing the

funds donated to her legal defense knowing this to be lie because 1) he knew the funds were

donated specifically to her legal defense and 2) he participated in the September 11 Financial

Oversight Committee meeting that authorized disbursement of those funds and then conspired

with Defendant Gollobith and Defendant Reinhart to lie about the occurrence. Purposefully lying

to conceal a material fact specifically in order to accuse someone of being a thief is the definition

of malicious. He knew he was no longer a board member on October 25, 2011 yet schemed with

the other Defendants to hold an illegal pre-scripted board meeting on November 6, 2011 after he

no longer held any authority within the organization. The statements made are classic

defamation per se and it is absurd to try to characterize them as opinion. Finally, Defendants do

not have qualified immunity to make defamatory statements.

In a Motion for Summary Judgment, it is the Defendants burden to prove a negative, i.e.

the non-existence of a genuine issue of material fact. In this case, the movant has done just the

opposite; his own motion has created the existence of genuine issues of material fact by asserting

the following untrue facts:

1. That Plaintiff arranged her own arrests;

2. That the FOC was created as an investigatory committee;

3. That Plaintiff Wachs handled the funds;

4. That at the time of the defamation there was a criminal investigation regarding the

funds.

5. That Defendant Cooper is entitled privilege as a board member when in fact he

admitted he was not a board member in October of 2011.

Furthermore, there are additional genuine issues of material facts in dispute as laid out in

the response.

WHEREFORE, for all of the foregoing reasons, The Plaintiff, EllenBeth Wachs,

respectfully requests this Honorable Court enter an Order denying the Motion for Partial

Summary Judgment.

/s/EllenBeth Wachs

EllenBeth Wachs, pro se

5963 Lake Victoria Dr

Lakeland, FL 33813

ellenbethwachs@gmail.com

863-354-0456

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was furnished via email on July 25, 2015 to:

Rinky S. Parwani, Esq.; rinky@parwanilaw.com John W. McKnight, Esq.; publicrecordslaw.mcknight@gmail.com

R. Gale Porter, Esq.; gale@porterlawgroup.net

John Kieffer; johnkieffer1234@aol.com

C. Todd Marks; todd@westchaselaw.com

Kelly A Carey; kcarey@cowmpa.com

C. Philip Campbell, Jr.; pcampbell@slk-law.com

/s/__EllenBeth Wachs__

EllenBeth Wachs, pro se

5963 Lake Victoria Dr

Lakeland, FL 33813

ellenbethwachs@gmail.com

863-354-0456