Penders Files Motion to Dismiss in Archie Lawsuit

Penders Files Motion to Dismiss in Archie Lawsuit

by March 2, 2011

But a Ruling May Not Happen for a While

The attorney representing Ken Penders against a lawsuit brought by Archie Comics is attempting to have the case thrown out principally on a technicality, TSSZ News has learned.

According to public court records obtained by TSSZ News, defense attorney Michael Ertel filed on February 8th the motion, arguing a lack of jurisdiction on Penders in the case.  Specifically, the motion argues that because Penders never technically worked in a setting where New York jurisdiction applied (and where Archie is headquartered), he is not subject to the rules under them.  Ertel also argued that because Penders filed for copyright protection of his work in California, where he currently lives, the case should be transferred to that district “for the convenience of the parties and witnesses, and in the interest of justice,” according to the document.

At the heart of this case is whether Penders signed a contract with Archie.  According to the motion Ertel filed, Archie Comics allegedly conceded that contract “is in dispute”:

The sole basis on which Archie may rely on personal jurisdiction is a paragraph contained in two agreements that Archie claims were signed by Penders in 1996; however, Archie acknowledges that the validity of these documents is in dispute and to date, Archie has not supplied the original of either document to allow a handwriting expert to analyze Penders’s purported signature or for any other purpose.

A Declaration opposing this motion was filed yesterday. It includes an affidavit by Archie’s current president Mike Pellerito, in which he claims Archie Comics requires all independent contractors to sign an agreement with the company.  Pellerito also claims in the affidavit Archie’s records date back “to at least 1988.”  A spreadsheet of individuals who allegedly signed the agreement, including some current staff on the Sonic comic, was provided as a supplementary exhibit.  Copies of the agreements Penders allegedly signed were reportedly submitted as a part of Archie’s original complaint against Penders filed in November, according to Pellerito’s declaration.  We should note that complaint is not yet public record electronically.

Pellerito testified to the following, regard to Penders’s alternative proposal to move proceedings to California.  Pellerito claims Penders executed a contract while a resident of New York.

The locus of operative facts relevant to these claims is in New York because the ACP Penders Agreements which are central to this dispute were created in this District, executed in New York (while Penders was a resident of New York), performed in New York, are related to goods or services supplied by Penders to ACP in New York. Penders’ current presence in California is irrelevant to this factor.

Pellerito, in his affidavit, cited Edward Spallone, who allegedly executed the agreement between Penders and Archie.  Pellerito noted Spallone was absent from Penders’s planned witness list, and he called those witnesses–nearly all of whom live in California–“disingenuous at best.”

All of Pellerito’s words are, in part, a response to a 14 page declaration Penders himself made in February in support of the motion to dismiss, which we’ll explore in more detail here tomorrow, as there are a ton of revelations in it.  Among Penders’s claims are that, while he did live in New York state for almost 7 years–including the period when he started working for Archie Comics–he never signed a work agreement with the company.

But none of this will move very far very fast.  There is a period of discovery that is necessary, and the next status conference in the case–where a decision on this motion may be made–isn’t until June 7th.  There will be a lot of waiting and a lot of research up to then, but in lead-up, there has already been a lot of mudslinging.  What we cover tomorrow will scratch the surface of that.