Court tells NXIVM attorney lipo Pam Nichols “Go back to law school”

In a truly horrendous setback for NXIVM the U.S. District Court for the Western District of New York told NXIVM attorney Lipo Pam Nichols today: Go fuck yourself!In responding to a motion that Pam-Bam filed only yesterday (which means that Toni Natalie/Foley didn’t even have a chance to respond to it!), Judge David G. Larimer issued a decision today denying the motion to seal the very same records that the judge in the Dones/Woolhouse case in the state of Washington already sealed. And, instead of just issuing a simple “Motion Denied” order, Judge Larimore took the occasion to bitch slap Pam around a bit. FULL DECISION HERE
But since it is short and to the point here it is in Word

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________________

In RE: Application of NXIVM Corporation for Ex Parte Motion

to Shorten Time on Motion to Compel the Deposition of

Nonparty Witness Toni Natalie and Motion to Compel the

Deposition of Nonparty Witness Toni Natalie,

________________________________________________

NXIVM CORPORATION,

Plaintiff,

DECISION AND ORDER

11-MC-6009L

v.

SUSAN FAYE DONES (10-04338-BDL) and

KIM MARIE WOOLHOUSE (10-04339-BDL).

Defendants.

________________________________________________

NXIVM Corporation commenced this miscellaneous civil action by the filing of a motion

to compel the deposition of a nonparty witness. That witness, Toni Foley, responded by filing a

motion to quash a subpoena served on her by NXIVM.1

On August 22, 2011, in open Court, I granted NXIVM’s motion to compel, denied Foley’s

motion to quash, and directed that the deposition be conducted on Wednesday, September 7, 2011.

(Dkt. #10.) The deposition did take place on that date and has concluded.

NXIVM, however, has also moved for an order sealing virtually the entire record in this

action, particularly a “statement” filed by Foley (Dkt. #11) in support of her motion to quash. See

Dkt. #14.

1The motion to compel refers to Foley as Toni Natalie, which apparently is her maiden

name. In her papers, she refers to herself as Toni Foley.

Case 6:11-mc-06009-DGL -JWF Document 15 Filed 09/08/11 Page 1 of 3

NXIVM’s motion is denied. The well-established presumption of accessibility to court

documents is reflected in Local Rule 5.4, which states that “there is a presumption that Court

documents are accessible to the public and that a substantial showing is necessary to restrict access.”

See also Orion Pictures v. Video Software Dealers Ass’n, 21 F.3d 24, 26 (2d Cir. 1994) (“[C]ourts

have recognized a strong presumption of public access to court records. This preference for public

access is rooted in the public’s first amendment right to know about the administration of justice”)

(citing Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)).

While this presumption of access can be overcome by a number of countervailing interests,

such as preserving a defendant’s right to a fair trial or a third party’s privacy interests, see, e.g.,

Stephanski v. Goord, No. 02-CV-562F, 2005 WL 711628, at *1-*2 (W.D.N.Y. Mar. 29, 2005), the

Second Circuit has emphasized that a district court “must carefully and skeptically review sealing

requests to insure that there really is an extraordinary circumstance or compelling need” to seal court

records. Orion Pictures, 21 F.3d at 27. Likewise, while “[t]he court may strike from a pleading ...

any immaterial, impertinent, or scandalous matter,” Fed. R. Civ. P. 12(f), “[m]otions to strike are

generally disfavored,” and are committed to the district court’s sound discretion. Freydl v.

Meringolo, No. 09 Civ. 07196, 2011 WL 2566082, at *1 (S.D.N.Y. June 16, 2011) (quoting

Lamoureux v. Anazaohealth Corp., 250 F.R.D. 100, 102 (D.Conn. 2008)).

Applying these standards here, I find that NXIVM has not presented facts sufficient to

overcome the presumption of openness and public access to judicial proceedings, or the general

policy disfavoring the striking of filed documents absent strong reasons for doing so. Although the

written “statement” filed by Foley contains various allegations of wrongdoing on the part of NXIVM

and its counsel, I do not believe that the matters contained in Foley’s statement are so far beyond the

pale as to warrant that they be either struck or sealed. See Lynch v. Southampton Animal Shelter

Foundation Inc., No. 10–CV–2917, 2011 WL 3273872, at *5-*6 (E.D.N.Y. July 29, 2011) (setting

for standards for determining whether material is subject to striking under Rule 12(f)).

- 2 -

Case 6:11-mc-06009-DGL -JWF Document 15 Filed 09/08/11 Page 2 of 3

CONCLUSION

NXIVM’s motion to seal (Dkt. #14) is denied.

The deposition of Toni Foley, a/k/a Toni Natalie, having been held on September 7, 2011,

the Clerk of the Court is hereby directed to close this action.

IT IS SO ORDERED.

_______________________________________

DAVID G. LARIMER

United States District Judge

Dated: Rochester, New York

September 8, 2011.

First citing “the public’s first amendment right to know about the administration of justice,” Judge Larimore went on to quote from several prior cases that had all been decided against parties that wanted to seal other court records. After reviewing the applicable standards regarding such matters , he then concluded: “Applying these standards here, I find that NXIVM has not presented facts sufficient to overcome the presumption of openness and public access to judicial proceedings, or the general policy disfavoring the striking of filed documents absent strong reasons for doing so. Although the written “statement” filed by Foley (FULL STATEMENT HERE) contains various allegations of wrongdoing on the part of NXIVM and its counsel (He’s referring to Toni’s claim that Lipo Pam filed a false instrument with the court) , I do not believe that the matters contained in Foley’s statement are so far beyond the pale as to warrant that they be either struck or sealed.”

And just to add a little more salt to Pam’s wounds, the judge then directed the Clerk of the Court “to close this action” – which means that NXIVM will have to file an appeal with the second circuit if they want to try and reverse this decision. Now, normally, no one would spend the time and money it takes to appeal this kind of decision. But regular readers will remember that NXIVM did just that when its motion for a preliminary injunction in the Rick Ross case was denied by the local District Court back in 2003. It then appealed the negative decision that it got from the second circuit to the UNITED STATES SUPREME COURT but that attempted appeal was, of course, summarily denied without any oral arguments.



Word is already circulating in Buffalo that Willy-the-Turtle Savino and his erstwhile colleague, Beth Bovine, have already suggested to NXIVM that their law firm, Damon & Morey, should take over the lead on all of NXIVM’s legal proceedings in New York State. If that happens, rumor has it that local talk show host Paul Vandenberg may move Lipo Pam off of his “5 Most important Women in the Capital District” list. So long, Pammy…we hardly knew ya. And don’t let that door hit you in your fat ass!
Till next time remember “Justice delayed is still justice served”