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Apr 24, 2017 · Senior Writer. Newsweek senior writer Kurt Eichenwald filed a lawsuit on Monday against John Rivello, the man whom authorities believe sent Eichenwald a strobing tweet that caused him to have an ...
- Max Kutner
- Memorandum
- II. Standard
- III. Applicable Law
- IV. Analysis
- A. Assault and Battery
- B. Battery by Gif
- C. Purposeful Infliction of Bodily Harm
- V. Conclusion
James K. Bredar, Chief Judge Plaintiff Kurt Eichenwald brought this action against Defendant John Rivello over a year ago, on April 24, 2017. (Corrected Compl., ECF No. 2.). Defendant is facing criminal charges related to the same incident underlying this civil case, and therefore this case was stayed on August 28, 2017. (See Paperless Order, ECF N...
A complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Facial plausibility exists "when the...
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, because the parties are diverse and the amount in controversy is over $75,000. "In diversity actions, a district court applies the substantive law and choice of law rules of the state in which the court sits." Chartis Prop. Cas. Co. v. Huguely , 243 F.Supp.3d 615, 622 (D. Md....
Defendant has moved to dismiss Counts I and IV of Plaintiff's complaint, and presents three arguments in support of that request. First, Defendant contends that Texas courts do not recognize a claim of civil battery, and instead only recognize a claim for assault. Second, Defendant argues that Plaintiff's claim of battery fails because he has not a...
Defendant requests that the Court dismiss Plaintiff's first count of battery because, he argues, Texas does not recognize the tort of battery. Defendant is incorrect. Under Texas law, "[t]he definition of assault is the same, whether in a civil or criminal trial." Rogers v. Peeler , 146 S.W.3d 765, 769 (Tex. Ct. App. 2004). "A person commits assaul...
Defendant next argues that, whatever the label, Plaintiff's allegations do not amount to a civil battery under Texas law. The Court disagrees. As an initial matter, the Court notes that however one characterizes Plaintiff's claim, the facts as pled constitute some form of a tort. "The fundamental purposes of our tort system are to deter wrongful co...
Finally, Defendant has moved to dismiss Count IV on the ground that it is a tort "not yet recognized under Texas law." (Reply 1, ECF No. 30.) Plaintiff concedes that the tort has not been recognized in Texas, and asks the Court to dismiss the claim without prejudice. (See Opp'n 7, ECF No. 27.) Defendant argues that because this tort has not been re...
Plaintiff may plead both battery and assault, and Texas courts recognize these claims as two distinct torts. Plaintiff has sufficiently pled physical contact so as to state a claim for battery under Texas law. Accordingly, the Court will deny Defendant's motion to dismiss with respect to Count I, and, as Plaintiff concedes that his fourth count is ...
Kurt Eichenwald (plaintiff) was a journalist and author who lived in Texas. Eichenwald was epileptic, and he had publicly spoken and written about his epilepsy. During the 2016 presidential election, Eichenwald frequently criticized presidential candidate Donald Trump in his writings and on Twitter. Many Trump supporters responded to Eichenwald ...
Plaintiff Kurt Eichenwald brought this lawsuit against Defendant John Rivello in November of 2017, alleging that Defendant intentionally harmed him by means of a -light strobe image sent to his Twitter account which allegedly caused him to have a seizure.
Nov 27, 2017 · Rivello, a former Marine, was accused of sending the image to Newsweek senior writer Kurt Eichenwald with the message, “You deserve a seizure for your posts.” Eichenwald had published negative ...
Apr 24, 2017 · Newsweek journalist Kurt Eichenwald is not done with the man he says gave him a seizure via tweet. He filed a federal lawsuit on Monday against Twitter user John Rivello. The lawsuit stems from a December 15 incident where Rivello allegedly sent Eichenwald a tweet with a strobe light image and the text “YOU DESERVE A SEIZURE FOR YOUR POSTS.”
May 31, 2018 · Plaintiff Kurt Eichenwald brought this action against Defendant John Rivello over a year ago, on April 24, 2017. ( Corrected Compl. , ECF No. 2 .) . Defendant is facing criminal charges related to the same incident underlying this civil case, and therefore this case was stayed on August 28, 2017 .
