Preview
Filed 13 June 13 P11:50
Chris Daniel - District Clerk
Harris County
CAUSE NO. 2010-82078 ED101J017542866
By: irma medina
PIUS OKAFOR AND JOHN OKAFOR § IN THE DISTRICT COURT
INDIVIDUALLY AND AS D/B/A §
INTERNATIONAL GUARDIAN, AND §
INTERNATIONAL GUARDIAN §
NEWSPAPERS, INC. §
Plaintiffs, §
§
v. § 295TH JUDICIAL DISTRICT
§
ANTHONY OBI OGBO (INDIV. AND §
A/K/A INTERNATIONAL GUARDIAN §
NEWSPAPER) §
Defendants. § HARRIS COUNTY, TEXAS
PLAINTIFFS' SECOND AMENDED ETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Plaintiffs, Pius Okafor Individually and as d/b/a International Guardian, John
Okafor, and International Guardian Newspapers, Inc, hereinafter called Plaintiffs, complaining of
and about Anthony Obi Ogbo, Individually a/k/a International Guardian, hereinafter called
Defendant, and for cause of action show unto the Court the following:
DICOVERY CONTROL PLAN LEVEL
1. Plaintiffs intend that discovery be conducted under Discovery Level 2.
PARTIES AND SERVICE
2. Plaintiff, John Okafor, is an Individual who resides in Brazoria County,
Texas.
3. Plaintiff, Pius Okafor, Individually and as d/b/a International Guardian, is an
Individual who resides in Harris County, Texas.
4. Plaintiff, International Guardian Newspapers, Inc, is a Texas corporation.
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Plaintiffs’ Second Amended Pet.
5. Defendant Anthony Obi Ogbo Individually and a/k/a International Guardian, an
Individual who is a resident of Texas, may be served with process at his office at the following
address: 6420 Hillcroft, Suite 500, Houston, Texas 77081. Service of said Defendant as
described above can be effected by personal delivery.
JURISDICTION AND VENUE
6. The subject matter in controversy is within the jurisdictional limits of this court.
7. This court has personal jurisdiction herein because Defendant is a Texas residents.
8. Venue in Harris County is proper in this cause pursuant to Section 17.56 of the
Texas Business and Commerce Code and under Section 15.002(a)(1) of the Texas Civil
Practice and Remedies Code because all or a substantial part of the events or omissions giving
rise to this lawsuit occurred in this county.
FACTS
9. Plaintiffs are private citizens of Texas. Plaintiffs are originally from Anambra
State, which is located in the eastern part of Nigeria The Plaintiffs are residents of Texas.
10. Defendant Anthony Obi Ogbo is also from the eastern part of Nigeria and is the
publisher of the fake "International Guardian" (Guardian), an unincorporated entity. International
Guardian is a monthly publication that has its principal place of business in Houston, Texas. The
Guardian has worldwide circulation in the African community and the Nigerian community in
particular. Guardian is published on the web at www.examiner.com.
11. Plaintiffs are from Anambra State and are the members of Anambra State
Community in Houston, Inc. On October 18, 2010, Anambra State Community in Houston filed
a suit against Christian Chinwuba Ulasi in the 80th Judicial District Court of Harris County,
Texas. The case is still pending. Christian Chinwuba Ulasi is a friend of Defendant Ogbo. Mr.
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Plaintiffs’ Second Amended Pet.
Ogbo featured a lavishing editorial of Mr. Ulasi in an October 2010 Guardian edition as a
benevolent community personality.
12. During a meeting held in the office of ANASCO attorney on November 12,2010,
the attorney for Christian Chinwuba Ulasi threatened to sue Plaintiffs, Pius Okafor and John
Okafor, for the sole purpose of smearing Plaintiffs' names in retaliation for the suit filed against
Mr. Ulasi.
13. On November 19,2010, Vincent Nweke d/b/a Anambra State Community,
Houston, under the representation of the same attorney that threatened to smear the names of the
Plaintiffs, filed a half-baked suit in the 29Sth Judicial District Court of Harris County, Texas,
against John Okafor, Pius Okafor, Nelson Ilodigwe, Jenny Ogadi, Sylvester Arubaleze and
Anambra State Community in Houston alleging that the Defendants in that suit used false
identity to withdraw the ANASCO funds. At the time the suit was filed, the funds that were
allegedly fraudulently withdrawn from the ANASCO account was actually in ANASCO account.
It was after the Defendants published the current article that it became clear why the suit in the
29Sth District Court in Harris County was filed. The only intent was to use the identity fraud
allegation to smear the Plaintiff's names and nothing more.
14. On December 1, 2010, John Okafor and Pius Okafor (among others), filed their
original answer, motion to abate, plea to the jurisdiction, special exceptions, motion for sanctions
and counterclaim in the 295th Judicial District Court. In their plea to the jurisdiction, the current
plaintiffs asked the Honorable Judge of the 295th Judicial District of Harris Count, Texas to
dismiss the suit because the same case was pending in another court in Harris County.
Furthermore, the current Plaintiffs sought sanctions against the attorney Mr. Chukelu and his
client, Vincent Nweke for filing a frivolous suit alleging that the current Plaintiffs stole the
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Plaintiffs’ Second Amended Pet.
ANASCO funds through identity fraud when the funds were actually in the accounts of
ANASCO at the time the suit was filed. Mr. Nweke used the ANASCO name to file the suit and
had no standing.
The publication did not make any reference to the response pleadings filed by the
defendants in that suit. The Defendant did not employ due diligence in his publication.
15. On December 7, 2010, Defendant published an article in the Guardian about the
Plaintiffs. The article titled: "Pius Okafor, Others Dragged to Court Over Identity Fraud, Conspiracy." The
article claimed that "the lawsuit (was) filed 11 November, 2010." It is clearly evident that the
publisher obtained the lawsuit (possibly from the attorney in that suit) before the suit was
actually filed in the District Court on November 19, 2010. The publication argued that
"International Guardian gathered that Mr. Okafor and his team have been issued with
unspecified memos before this suit. " Plaintiffs are unaware of any memo that was issued before
the suit was filed. The fact buttresses the allegation that the attorney and the Plaintiff in the 295th
court conspired with the Defendants in this suit to defame John Okafor and Pius Okafor, and
used the Guardian as a medium to deliver the negative campaign. Rather than promote and
accentuate the achievements of Nigerians in Houston, Guardian and Anthony Ogbo have availed
themselves as conduit for destruction and intimidation of fellow Nigerians in Houston.
16. Defendant Anthony Obi Ogbo wrote the article and published the Plaintiffs on the
front page of his newspaper as the leading story for that particular monthly publication. The
newspaper pictured both Mr. Pius Okafor and his son Emeka Okafor, with Emeka Okafor
holding NBA basketball and wearing the New Orleans Hornets' jersey.
17. In that article made the basis of this suit, the Defendants depicted the Plaintiffs as
fraudulent individuals. More damagingly, the Defendants published the article accusing Plaintiffs
of inciting militancy, sponsoring terrorism and kidnappings in Nigeria. Pius Okafor is the father
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Plaintiffs’ Second Amended Pet.
of the National Basketball Association's star, Emeka Okafor; and the Defendants used the picture
of Emeka Okafor, who is not a party to the suit - as avenue for cheap publicity to aggrandize
Guardian.
18. In its salacious publication, the Guardian stated that "daddy Okafor, (was)
exploiting his son's fame for personal benefits" among other things. The publication further
stated that "Community members, including individuals from his own village of Enugwu-Ukwu,
claim Mr. Okofor has been exploiting his son's wealth and fame to destabilize the community.
According to one of his village members who opted for anonymity, 'He is no longer in our
meeting because all he does is cause trouble and cause chaos '. "No source was quoted in the
story. All quotations were by unnamed sources.
19. The Guardian publication accused Plaintiff John Okafor of sponsoring terrorism
in Anambra State of Nigeria. In the same publication, the Guardian reported that “The group, it
was gathered, collaborated with Houston accomplices led by a resident John Okafor to instigate
chaos in Anambra State as a strategy to unarm the governor’s swelling popularity.
Coincidentally, the same John Okafor was mentioned in the impending lawsuit. It is unclear if
‘basketball dad’ Pius Okafor was connected to that October plot.” The statement is factually
false and had no merit whatsoever except to defame the Plaintiffs.
20. In an October 2010 publication, the same Guardian published a story about John
Okafor. The story is similar to the editorial publication made the basis of this suit. In the
October 2010 publication which Mr. Ogbo was the editorialist, Mr. John Okafor was mentioned
by name as a collaborator spurring insurrection in Anambra State of Nigeria . The article “Chaos
in Nigeria Linked to Houston?” stated that information was gathered from unnamed sources.
21. The front page of the October 2010 publication pictured Plaintiff John Okafor and
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Plaintiffs’ Second Amended Pet.
the governor of Anambra State, Mr. Peter Obi. The October publication made the following
conclusion: “A collusion between owners of an internet propaganda blog ‘Ukpaka Report,’
operated by one Ikenna Ezenekwe, and unidentified political interest group in Nigeria may have
backfired. The group, it was, collaborated with Houston accomplices let by a resident John
Okafor to instigate chaos in Anambra State as a strategy to unarm the governor’s swelling
popularity.” The publication contained other damaging insinuations and direct unverified
accusations of both fraud and terrorism plot against Mr. John Okafor.
22. The same October 2010 publication featured the same Chris Chinwuba Ulasi as
“Who is Who: Africans in Diaspora.” The editorial on Mr. Ulasi praised Mr. Ulasi as an
outstanding citizen of Anambra State living in Houston. The same Mr. Ulasi that his attorney
threatened to smear the names of Mr. Pius Okafor, John Okafor and the other members of
Anambra State Community in Houston, Inc. The comments in the October article were
attributable to Mr. Vincent Nweke—the same Nweke that filed a suit against Pius Okafor and
John Okafor in the 295th Judicial District Court of Harris County, Texas. It is clear that the
publication was a planned revenge against the Plaintiffs for suing Mr. Ulasi.
23. The publication insinuated that Pius Okafor is using his wealth (or his son’s) to
instigate kidnappings in Nigeria: “Nigeria investigators believe some affluent indigenes in the
Diaspora may be behind various unrests that challenge the country’s peace and political
stability.”
24. The publication further stated that "In October, Nigerian President, Goodluck
Jonathan announced a link between current security crisis in Nigeria and dissidents residing
outside the country, claiming that recent events may have revealed collaborations between
Nigerians overseas and dishonest vandals at home, to destabilize various governments in wake
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Plaintiffs’ Second Amended Pet.
of the up-coming 2011 elections." Such publication is an outright fabrication and meant to directly soil
the names of the Plaintiffs when the world is seriously combating terrorism, and Nigeria combating the
pervasion of militancy and kidnappings.
25. On December 14, 20 10, Plaintiff incorporated the name International Guardian
Newspapers, Inc, and obtained an assumed name certificate in the name of International Guardian.
Defendant Ogbo continues to use the name International Guardian to publish his smear campaigns.
Unless, Defendant is restrained, he will continue to use the name of International Guardian to attack the
Plaintiffs. Defendant has appropriated the name and likeness of International Guardian without the
consent of the owner of the name, Pius Okafor, who is a Plaintiff in this action.
PLAINTIFFS JOHN OKAFOR AND PIUS
OKAFOR'S
CAUSE OF ACTION FOR DEFAMATION
26. The elements of a defamation claim are (1) The defendant published a statement; (2) The
statement was defamatory concerning the plaintiff; (3) The defendant acted with (i) actual malice, if the
plaintiff was a public official or public figure, or (ii) negligence, if the plaintiff was a private individual,
regarding the truth of the statement. The elements are listed in WF AA- TV, Inc. v. McLemore, 978 S.
W.2d
568,571 (Tex.1998).
27. CONSPIRACY
Plaintiffs believe that Defendant, Anthony Ogbo along with others conspired to publish
false statements against them which have damaged their image in the community. In publishing
the numerous articles about Plaintiffs, Defendant did not seek to independently verify the stories,
nor did Defendant attempt to publish the entire story. Had Defendant published the entire story
in some instances, he was not going to be able to justify the false and misleading headlines
published on the front page of his Guardian newspaper.
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Plaintiffs’ Second Amended Pet.
Defendant intentionally or recklessly published or caused to be published defamatory articles
defamatory to Plaintiffs in their Guardian newspaper and on an Internet site a/k/a Examiner.com.
28. LIBEL PER SE
A libel is a defamation expressed in written or other graphic form that tends to blacken the
memory of the dead or that tends to injure a living person's reputation and thereby expose the person to
public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue,
or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred,
ridicule, or financial injury.
PLAINTIFFS' CAUSE OF ACTION FOR
INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS
29. To recover for intentional infliction of emotional distress, a plaintiff must prove that:
(1) the defendants acted intentionally or recklessly; (2) the defendants' conduct was extreme and
outrageous; (3) the defendants' conduct proximately caused the plaintiffs emotional distress; and (4) the
emotional distress suffered by the plaintiffs was severe. Standard Fruit and Vegetable Co., Inc. v,
Johnson, 985 S.W.2d 62, 65-66 (Tex. 1998). In addition, the intended or primary consequence of the
defendants' conduct was to cause emotional distress, not physical injury. Id. at 68; Durckel v. St. Joseph
Hosp., 78 S.W.3d 576, 586 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
PLAINTIFFS' CAUSE OF ACTION FOR INVASION OF
PRIVACY
(PUBLIC DISCLOSURE OF PRIVATE FACTS)
30. An individual has the right to be free from the public disclosure of embarrassing private
facts about the individual. Industrial Found. of the South v, Texas Indus. Accident Bd., 540 S.W.2d
668, 682 (Tex.l976), cert, denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). To establish the
tort of invasion of privacy based upon the public disclosure of private facts, the plaintiffs must
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Plaintiffs’ Second Amended Pet.
demonstrate that (1) publicity was given to matters concerning their private life, (2) the publication of
which would be highly offensive to a reasonable person of ordinary sensibilities, and (3) the matter
publicized was not of legitimate public concern. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-74
(Tex. 1995); Industrial Found. of the South, 540 S.W.2d at 682.
PLAINTIFFS' CAUSE OF ACTION FOR APPROPRIATION OF NAME OR LIKENESS
31. Under Texas law, "[0 ]ne who appropriates to his own use or benefit the name or likeness
Of another is subject to liability to the other for invasion of his privacy." Matthews v, Wozencraft, 15
F.3d 432, 437 (5th Cir.1994) (quoting Restatement (Second) of Torts § 652C (1977) [hereinafter
Restatement]); see also Kimbrough v. Coca-Cola/USA, 521 S_W.2d 719, 722
(Tex.Civ.App.1975) (acknowledging the invasion of privacy tort). A misappropriation claim
includes the following four elements: "(i) that the defendant appropriated the plaintiffs name or
likeness for the value associated with it, and not in an .incidental manner or for a newsworthy
purpose; (ii) that the plaintiff can be identified from the publication; and (iii) that there was some
advantage or benefit to the defendant; (iv) the Plaintiff suffered an injury as a result of the
defendant's appropriation." Matthews, 15 F.3d at 437.
ACTUAL DAMAGES
32. Plaintiffs sustained the following actual damages as a result of the actions and/or
omissions of Defendants: loss of good name, loss of profit, loss of earning capacity, loss of
goodwill, mental anguish, injury to character, and general damages.
DAMAGES FOR MENTAL ANGUISH
33. Plaintiffs would further show that the false, misleading and deceptive acts,
practices and/or omissions described hereinabove were committed "knowingly," as provided by
Section 17.45(9) of the Texas Business and Commerce Code, in that Defendants had actual
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Plaintiffs’ Second Amended Pet.
awareness of the falsity, deception, or unfairness of such acts, practices, and/or omissions.
34. As a result of such acts, practices and/or omissions, Plaintiffs sustained a high
degree of mental pain and distress of such nature, duration and severity that would permit the
recovery of damages for mental anguish pursuant to Section 17.50(b) of the Texas Business and
Commerce Code, and for which Plaintiffs hereby sue in an amount in excess of the minimum
jurisdictional limits of this Court.
EXEMPLARY DAMAGES
35. Plaintiffs would further show that the acts and omissions of Defendants
complained of herein were committed knowingly, willfully, intentionally, with actual awareness,
and with the specific and predetermined intention of enriching said Defendants at the expense of
Plaintiffs. In order to punish said Defendants for such unconscionable overreaching and to deter
such actions and/or omissions in the future, Plaintiffs also seek recovery from Defendants for
exemplary damages as provided section 41.003 of Texas Civil Practice & Remedies Code.
36. AFFIRMATIVE DEFENSES
1. Defendant and Counter-plaintiff (Defendant) suit is barred by the applicable statute of
limitations. Defendant filed a counter-claim more than one (1) year after his cause of action
accrued.
2. Defendant’s claim is barred by latches.
3. Plaintiff Pius Okafor is not liable or wholly liable to Defendant in damages due to the fact
that Defendant by his own fault intentionally or recklessly published false and derogatory
statements regarding Plaintiffs.
Therefore, liability, if any, should be apportioned according to who the facts show is
proportionately responsible.
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Plaintiffs’ Second Amended Pet.
ATTORNEY'S FEES
37. Request is made for all costs and reasonable and necessary attorney's fees incurred
by or on behalf of Plaintiffs herein. including all fees necessary in the event of an appeal of this
cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and
just.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Pius Okafor Individually and
d/b/a International Guardian, John Okafor, and International Guardian Newspapers, Inc.
respectfully pray that the Defendants be cited to appear and answer herein, and that upon a final
hearing of the cause, judgment be entered for the Plaintiffs against Defendants, jointly and
severally, for the actual damages requested hereinabove in an amount in excess of the minimum
jurisdictional limits of the Court, together with prejudgment and post-judgment interest at the
maximum rate allowed by law, attorney's fees, costs of court, a strong retraction of the article
made the basis of this suit, and such other and further relief to which the Plaintiffs may be
entitled at law or in equity, whether pled or unpled.
Respectfully submitted,
/s/ Kurt G. Clarke
________________________
Kurt G. Clarke
SBN: 04316720
6200 Savoy, Ste. 458
Houston, Texas 77036
Tel: (713) 779-5500
Fax: (713) 779-6668
Attorney for Plaintiffs
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Plaintiffs’ Second Amended Pet.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument was
forwarded to all counsel of record on this the 13th day of June, 2013, either by telecopier, first
class mail, certified mail, return receipt requested and/or by messenger.
Patrick C. Chukelu
9301 S.W. Freeway
Houston, Texas 77074
/s/ Kurt G. Clarke
________________________
Kurt G. Clarke
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Plaintiffs’ Second Amended Pet.
Preview
Filed 13 June 13 P11:50 Chris Daniel - District Clerk Harris County CAUSE NO. 2010-82078 ED101J017542866 By: irma medina PIUS OKAFOR AND JOHN OKAFOR § IN THE DISTRICT COURT INDIVIDUALLY AND AS D/B/A § INTERNATIONAL GUARDIAN, AND § INTERNATIONAL GUARDIAN § NEWSPAPERS, INC. § Plaintiffs, § § v. § 295TH JUDICIAL DISTRICT § ANTHONY OBI OGBO (INDIV. AND § A/K/A INTERNATIONAL GUARDIAN § NEWSPAPER) § Defendants. § HARRIS COUNTY, TEXAS PLAINTIFFS' SECOND AMENDED ETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Plaintiffs, Pius Okafor Individually and as d/b/a International Guardian, John Okafor, and International Guardian Newspapers, Inc, hereinafter called Plaintiffs, complaining of and about Anthony Obi Ogbo, Individually a/k/a International Guardian, hereinafter called Defendant, and for cause of action show unto the Court the following: DICOVERY CONTROL PLAN LEVEL 1. Plaintiffs intend that discovery be conducted under Discovery Level 2. PARTIES AND SERVICE 2. Plaintiff, John Okafor, is an Individual who resides in Brazoria County, Texas. 3. Plaintiff, Pius Okafor, Individually and as d/b/a International Guardian, is an Individual who resides in Harris County, Texas. 4. Plaintiff, International Guardian Newspapers, Inc, is a Texas corporation. 1 Plaintiffs’ Second Amended Pet. 5. Defendant Anthony Obi Ogbo Individually and a/k/a International Guardian, an Individual who is a resident of Texas, may be served with process at his office at the following address: 6420 Hillcroft, Suite 500, Houston, Texas 77081. Service of said Defendant as described above can be effected by personal delivery. JURISDICTION AND VENUE 6. The subject matter in controversy is within the jurisdictional limits of this court. 7. This court has personal jurisdiction herein because Defendant is a Texas residents. 8. Venue in Harris County is proper in this cause pursuant to Section 17.56 of the Texas Business and Commerce Code and under Section 15.002(a)(1) of the Texas Civil Practice and Remedies Code because all or a substantial part of the events or omissions giving rise to this lawsuit occurred in this county. FACTS 9. Plaintiffs are private citizens of Texas. Plaintiffs are originally from Anambra State, which is located in the eastern part of Nigeria The Plaintiffs are residents of Texas. 10. Defendant Anthony Obi Ogbo is also from the eastern part of Nigeria and is the publisher of the fake "International Guardian" (Guardian), an unincorporated entity. International Guardian is a monthly publication that has its principal place of business in Houston, Texas. The Guardian has worldwide circulation in the African community and the Nigerian community in particular. Guardian is published on the web at www.examiner.com. 11. Plaintiffs are from Anambra State and are the members of Anambra State Community in Houston, Inc. On October 18, 2010, Anambra State Community in Houston filed a suit against Christian Chinwuba Ulasi in the 80th Judicial District Court of Harris County, Texas. The case is still pending. Christian Chinwuba Ulasi is a friend of Defendant Ogbo. Mr. 2 Plaintiffs’ Second Amended Pet. Ogbo featured a lavishing editorial of Mr. Ulasi in an October 2010 Guardian edition as a benevolent community personality. 12. During a meeting held in the office of ANASCO attorney on November 12,2010, the attorney for Christian Chinwuba Ulasi threatened to sue Plaintiffs, Pius Okafor and John Okafor, for the sole purpose of smearing Plaintiffs' names in retaliation for the suit filed against Mr. Ulasi. 13. On November 19,2010, Vincent Nweke d/b/a Anambra State Community, Houston, under the representation of the same attorney that threatened to smear the names of the Plaintiffs, filed a half-baked suit in the 29Sth Judicial District Court of Harris County, Texas, against John Okafor, Pius Okafor, Nelson Ilodigwe, Jenny Ogadi, Sylvester Arubaleze and Anambra State Community in Houston alleging that the Defendants in that suit used false identity to withdraw the ANASCO funds. At the time the suit was filed, the funds that were allegedly fraudulently withdrawn from the ANASCO account was actually in ANASCO account. It was after the Defendants published the current article that it became clear why the suit in the 29Sth District Court in Harris County was filed. The only intent was to use the identity fraud allegation to smear the Plaintiff's names and nothing more. 14. On December 1, 2010, John Okafor and Pius Okafor (among others), filed their original answer, motion to abate, plea to the jurisdiction, special exceptions, motion for sanctions and counterclaim in the 295th Judicial District Court. In their plea to the jurisdiction, the current plaintiffs asked the Honorable Judge of the 295th Judicial District of Harris Count, Texas to dismiss the suit because the same case was pending in another court in Harris County. Furthermore, the current Plaintiffs sought sanctions against the attorney Mr. Chukelu and his client, Vincent Nweke for filing a frivolous suit alleging that the current Plaintiffs stole the 3 Plaintiffs’ Second Amended Pet. ANASCO funds through identity fraud when the funds were actually in the accounts of ANASCO at the time the suit was filed. Mr. Nweke used the ANASCO name to file the suit and had no standing. The publication did not make any reference to the response pleadings filed by the defendants in that suit. The Defendant did not employ due diligence in his publication. 15. On December 7, 2010, Defendant published an article in the Guardian about the Plaintiffs. The article titled: "Pius Okafor, Others Dragged to Court Over Identity Fraud, Conspiracy." The article claimed that "the lawsuit (was) filed 11 November, 2010." It is clearly evident that the publisher obtained the lawsuit (possibly from the attorney in that suit) before the suit was actually filed in the District Court on November 19, 2010. The publication argued that "International Guardian gathered that Mr. Okafor and his team have been issued with unspecified memos before this suit. " Plaintiffs are unaware of any memo that was issued before the suit was filed. The fact buttresses the allegation that the attorney and the Plaintiff in the 295th court conspired with the Defendants in this suit to defame John Okafor and Pius Okafor, and used the Guardian as a medium to deliver the negative campaign. Rather than promote and accentuate the achievements of Nigerians in Houston, Guardian and Anthony Ogbo have availed themselves as conduit for destruction and intimidation of fellow Nigerians in Houston. 16. Defendant Anthony Obi Ogbo wrote the article and published the Plaintiffs on the front page of his newspaper as the leading story for that particular monthly publication. The newspaper pictured both Mr. Pius Okafor and his son Emeka Okafor, with Emeka Okafor holding NBA basketball and wearing the New Orleans Hornets' jersey. 17. In that article made the basis of this suit, the Defendants depicted the Plaintiffs as fraudulent individuals. More damagingly, the Defendants published the article accusing Plaintiffs of inciting militancy, sponsoring terrorism and kidnappings in Nigeria. Pius Okafor is the father 4 Plaintiffs’ Second Amended Pet. of the National Basketball Association's star, Emeka Okafor; and the Defendants used the picture of Emeka Okafor, who is not a party to the suit - as avenue for cheap publicity to aggrandize Guardian. 18. In its salacious publication, the Guardian stated that "daddy Okafor, (was) exploiting his son's fame for personal benefits" among other things. The publication further stated that "Community members, including individuals from his own village of Enugwu-Ukwu, claim Mr. Okofor has been exploiting his son's wealth and fame to destabilize the community. According to one of his village members who opted for anonymity, 'He is no longer in our meeting because all he does is cause trouble and cause chaos '. "No source was quoted in the story. All quotations were by unnamed sources. 19. The Guardian publication accused Plaintiff John Okafor of sponsoring terrorism in Anambra State of Nigeria. In the same publication, the Guardian reported that “The group, it was gathered, collaborated with Houston accomplices led by a resident John Okafor to instigate chaos in Anambra State as a strategy to unarm the governor’s swelling popularity. Coincidentally, the same John Okafor was mentioned in the impending lawsuit. It is unclear if ‘basketball dad’ Pius Okafor was connected to that October plot.” The statement is factually false and had no merit whatsoever except to defame the Plaintiffs. 20. In an October 2010 publication, the same Guardian published a story about John Okafor. The story is similar to the editorial publication made the basis of this suit. In the October 2010 publication which Mr. Ogbo was the editorialist, Mr. John Okafor was mentioned by name as a collaborator spurring insurrection in Anambra State of Nigeria . The article “Chaos in Nigeria Linked to Houston?” stated that information was gathered from unnamed sources. 21. The front page of the October 2010 publication pictured Plaintiff John Okafor and 5 Plaintiffs’ Second Amended Pet. the governor of Anambra State, Mr. Peter Obi. The October publication made the following conclusion: “A collusion between owners of an internet propaganda blog ‘Ukpaka Report,’ operated by one Ikenna Ezenekwe, and unidentified political interest group in Nigeria may have backfired. The group, it was, collaborated with Houston accomplices let by a resident John Okafor to instigate chaos in Anambra State as a strategy to unarm the governor’s swelling popularity.” The publication contained other damaging insinuations and direct unverified accusations of both fraud and terrorism plot against Mr. John Okafor. 22. The same October 2010 publication featured the same Chris Chinwuba Ulasi as “Who is Who: Africans in Diaspora.” The editorial on Mr. Ulasi praised Mr. Ulasi as an outstanding citizen of Anambra State living in Houston. The same Mr. Ulasi that his attorney threatened to smear the names of Mr. Pius Okafor, John Okafor and the other members of Anambra State Community in Houston, Inc. The comments in the October article were attributable to Mr. Vincent Nweke—the same Nweke that filed a suit against Pius Okafor and John Okafor in the 295th Judicial District Court of Harris County, Texas. It is clear that the publication was a planned revenge against the Plaintiffs for suing Mr. Ulasi. 23. The publication insinuated that Pius Okafor is using his wealth (or his son’s) to instigate kidnappings in Nigeria: “Nigeria investigators believe some affluent indigenes in the Diaspora may be behind various unrests that challenge the country’s peace and political stability.” 24. The publication further stated that "In October, Nigerian President, Goodluck Jonathan announced a link between current security crisis in Nigeria and dissidents residing outside the country, claiming that recent events may have revealed collaborations between Nigerians overseas and dishonest vandals at home, to destabilize various governments in wake 6 Plaintiffs’ Second Amended Pet. of the up-coming 2011 elections." Such publication is an outright fabrication and meant to directly soil the names of the Plaintiffs when the world is seriously combating terrorism, and Nigeria combating the pervasion of militancy and kidnappings. 25. On December 14, 20 10, Plaintiff incorporated the name International Guardian Newspapers, Inc, and obtained an assumed name certificate in the name of International Guardian. Defendant Ogbo continues to use the name International Guardian to publish his smear campaigns. Unless, Defendant is restrained, he will continue to use the name of International Guardian to attack the Plaintiffs. Defendant has appropriated the name and likeness of International Guardian without the consent of the owner of the name, Pius Okafor, who is a Plaintiff in this action. PLAINTIFFS JOHN OKAFOR AND PIUS OKAFOR'S CAUSE OF ACTION FOR DEFAMATION 26. The elements of a defamation claim are (1) The defendant published a statement; (2) The statement was defamatory concerning the plaintiff; (3) The defendant acted with (i) actual malice, if the plaintiff was a public official or public figure, or (ii) negligence, if the plaintiff was a private individual, regarding the truth of the statement. The elements are listed in WF AA- TV, Inc. v. McLemore, 978 S. W.2d 568,571 (Tex.1998). 27. CONSPIRACY Plaintiffs believe that Defendant, Anthony Ogbo along with others conspired to publish false statements against them which have damaged their image in the community. In publishing the numerous articles about Plaintiffs, Defendant did not seek to independently verify the stories, nor did Defendant attempt to publish the entire story. Had Defendant published the entire story in some instances, he was not going to be able to justify the false and misleading headlines published on the front page of his Guardian newspaper. 7 Plaintiffs’ Second Amended Pet. Defendant intentionally or recklessly published or caused to be published defamatory articles defamatory to Plaintiffs in their Guardian newspaper and on an Internet site a/k/a Examiner.com. 28. LIBEL PER SE A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury. PLAINTIFFS' CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 29. To recover for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendants acted intentionally or recklessly; (2) the defendants' conduct was extreme and outrageous; (3) the defendants' conduct proximately caused the plaintiffs emotional distress; and (4) the emotional distress suffered by the plaintiffs was severe. Standard Fruit and Vegetable Co., Inc. v, Johnson, 985 S.W.2d 62, 65-66 (Tex. 1998). In addition, the intended or primary consequence of the defendants' conduct was to cause emotional distress, not physical injury. Id. at 68; Durckel v. St. Joseph Hosp., 78 S.W.3d 576, 586 (Tex. App.-Houston [14th Dist.] 2002, no pet.). PLAINTIFFS' CAUSE OF ACTION FOR INVASION OF PRIVACY (PUBLIC DISCLOSURE OF PRIVATE FACTS) 30. An individual has the right to be free from the public disclosure of embarrassing private facts about the individual. Industrial Found. of the South v, Texas Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex.l976), cert, denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). To establish the tort of invasion of privacy based upon the public disclosure of private facts, the plaintiffs must 8 Plaintiffs’ Second Amended Pet. demonstrate that (1) publicity was given to matters concerning their private life, (2) the publication of which would be highly offensive to a reasonable person of ordinary sensibilities, and (3) the matter publicized was not of legitimate public concern. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-74 (Tex. 1995); Industrial Found. of the South, 540 S.W.2d at 682. PLAINTIFFS' CAUSE OF ACTION FOR APPROPRIATION OF NAME OR LIKENESS 31. Under Texas law, "[0 ]ne who appropriates to his own use or benefit the name or likeness Of another is subject to liability to the other for invasion of his privacy." Matthews v, Wozencraft, 15 F.3d 432, 437 (5th Cir.1994) (quoting Restatement (Second) of Torts § 652C (1977) [hereinafter Restatement]); see also Kimbrough v. Coca-Cola/USA, 521 S_W.2d 719, 722 (Tex.Civ.App.1975) (acknowledging the invasion of privacy tort). A misappropriation claim includes the following four elements: "(i) that the defendant appropriated the plaintiffs name or likeness for the value associated with it, and not in an .incidental manner or for a newsworthy purpose; (ii) that the plaintiff can be identified from the publication; and (iii) that there was some advantage or benefit to the defendant; (iv) the Plaintiff suffered an injury as a result of the defendant's appropriation." Matthews, 15 F.3d at 437. ACTUAL DAMAGES 32. Plaintiffs sustained the following actual damages as a result of the actions and/or omissions of Defendants: loss of good name, loss of profit, loss of earning capacity, loss of goodwill, mental anguish, injury to character, and general damages. DAMAGES FOR MENTAL ANGUISH 33. Plaintiffs would further show that the false, misleading and deceptive acts, practices and/or omissions described hereinabove were committed "knowingly," as provided by Section 17.45(9) of the Texas Business and Commerce Code, in that Defendants had actual 9 Plaintiffs’ Second Amended Pet. awareness of the falsity, deception, or unfairness of such acts, practices, and/or omissions. 34. As a result of such acts, practices and/or omissions, Plaintiffs sustained a high degree of mental pain and distress of such nature, duration and severity that would permit the recovery of damages for mental anguish pursuant to Section 17.50(b) of the Texas Business and Commerce Code, and for which Plaintiffs hereby sue in an amount in excess of the minimum jurisdictional limits of this Court. EXEMPLARY DAMAGES 35. Plaintiffs would further show that the acts and omissions of Defendants complained of herein were committed knowingly, willfully, intentionally, with actual awareness, and with the specific and predetermined intention of enriching said Defendants at the expense of Plaintiffs. In order to punish said Defendants for such unconscionable overreaching and to deter such actions and/or omissions in the future, Plaintiffs also seek recovery from Defendants for exemplary damages as provided section 41.003 of Texas Civil Practice & Remedies Code. 36. AFFIRMATIVE DEFENSES 1. Defendant and Counter-plaintiff (Defendant) suit is barred by the applicable statute of limitations. Defendant filed a counter-claim more than one (1) year after his cause of action accrued. 2. Defendant’s claim is barred by latches. 3. Plaintiff Pius Okafor is not liable or wholly liable to Defendant in damages due to the fact that Defendant by his own fault intentionally or recklessly published false and derogatory statements regarding Plaintiffs. Therefore, liability, if any, should be apportioned according to who the facts show is proportionately responsible. 10 Plaintiffs’ Second Amended Pet. ATTORNEY'S FEES 37. Request is made for all costs and reasonable and necessary attorney's fees incurred by or on behalf of Plaintiffs herein. including all fees necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Pius Okafor Individually and d/b/a International Guardian, John Okafor, and International Guardian Newspapers, Inc. respectfully pray that the Defendants be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiffs against Defendants, jointly and severally, for the actual damages requested hereinabove in an amount in excess of the minimum jurisdictional limits of the Court, together with prejudgment and post-judgment interest at the maximum rate allowed by law, attorney's fees, costs of court, a strong retraction of the article made the basis of this suit, and such other and further relief to which the Plaintiffs may be entitled at law or in equity, whether pled or unpled. Respectfully submitted, /s/ Kurt G. Clarke ________________________ Kurt G. Clarke SBN: 04316720 6200 Savoy, Ste. 458 Houston, Texas 77036 Tel: (713) 779-5500 Fax: (713) 779-6668 Attorney for Plaintiffs 11 Plaintiffs’ Second Amended Pet. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument was forwarded to all counsel of record on this the 13th day of June, 2013, either by telecopier, first class mail, certified mail, return receipt requested and/or by messenger. Patrick C. Chukelu 9301 S.W. Freeway Houston, Texas 77074 /s/ Kurt G. Clarke ________________________ Kurt G. Clarke 12 Plaintiffs’ Second Amended Pet.