Case 4:18-cv-00247-ALM Document 139 Filed 03/15/20 Page 1 of 7 PageID #: 3429



                  IN THE UNITED STATES DISTRICT FOR THE
                       EASTERN DISTRICT OF TEXAS,
                            SHERMAN DIVISION

   JASON LEE VAN DYKE,             §
       Plaintiff,                  §
                                   §
   v.                              §
                                   §
   THOMAS CHRISTOPHER              §                          NO. 4:18-CV-247-ALM
   RETZLAFF, a/k/a DEAN            §
   ANDERSON, d/b/a BV FILES, VIA   §
   VIEW FILES, L.L.C., and VIAVIEW §
   FILES,                          §
        Defendants                 §

      RETZLAFF’S MOTION TO DISMISS BECAUSE OF PLAINTIFF’S NEWLY-
                   DISCOVERED ASSASSINATION PLOT

                                    I. INTRODUCTION

          1.     Plaintiff is Jason Van Dyke; defendant is Thomas Retzlaff.

          2.     On March 28, 2018, Van Dyke filed this $100,000,000 defamation

   suit after Retzlaff filed a grievance against him with the State Bar of Texas.

          3.     On July 24, 2018, the Court denied Retzlaff’s motion to dismiss

   under the Texas Citizens Participation Act. Retzlaff unsuccessfully appealed.

          4.     On January 30, 2020, the Court granted leave for Van Dyke to file

   his third amended complaint. (Doc. 125.)

          5.     On March 1, 2020, Retzlaff filed his motion to dismiss Van Dyke’s

   third amended complaint pursuant to FED. R. CIV. P. 12(b)(6). (Doc. 129.)

   Retzlaff’s motion remains pending.
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                                                                    II. FACTS

               6.          Retzlaff has known of Van Dyke’s threats of murder and mayhem

   since March 2018.                         Retzlaff has documented these with law enforcement

   authorities, State Bar disciplinary authorities, and this Court.1 According to the

   Evidentiary Petition in Cause No. 201707583; Comm’n for Lawyer Discipline v.

   Van Dyke; Before the District 14 Grievance Committee:

               [B]eginning in or around March 2018, [Van Dyke] repeatedly told
               [Retzlaff] to kill himself and made multiple threats of physical
               violence to Retzlaff…. The threats [Van Dyke] made to [Retzlaff]
               include but are not limited to the following: 1) … “No more lawsuit.
               See you this weekend with my rifle;” 2) … “If you do not stop calling
               my clients, I will make you suffer. Better watch your back, Tom;” 3)
               … “Do you know that, when I strangle you, you could be conscious to
               feel all that pain for up to three minutes before brain death occurs?
               What kind of vegetable would you like to be for the rest of your life?
               How about a turnip?” 4) … “lol. you are a dead man, enjoy it while it
               lasts;” 5) … “I can’t wait to see your fat ass on the other end of my
               scope. Did you know that a 190 grain 300 Winchester Magnum round
               travels at approximately 2800 feet per second?” 6) … “What do you
               want on your polished rock, Tom? I’m coming for you. Sure as God’s
               vengeance I’m coming. Nobody will ever be harassed by you again.
               You’re taking a dirt nap;” 7) … “you better have your will made out
               Thomas. Im (sic) coming for YOU!” 8) … “You are a dead man;” 9)
               … “You should kill yourself.…”

   Exhibit 1, pp.2-3. Lest the Court be inclined to disregard “mere allegations” in

   the State Bar’s disciplinary complaint, Van Dyke signed an Agreed Judgment of

   Partially Probated Suspension judicially admitting there was “legally sufficient

   evidence” that Van Dyke had made the threats to Retzlaff. Exhibit 2. Van Dyke

   also agreed to seek “mental health treatment.” Id., p.3.


               1
                   See, e.g., Retzlaff’s “Notice of Death Threats Made by Plaintiff” (Doc. 28);
   Retzlaff’s motion to dismiss Van Dyke’s third amended complaint for failure to state a claim
   (Doc. 129), Exhibits 15 and 16 (Doc. 129-15; Doc. 129-16).

   Van Dyke v. Retzlaff
              Retzlaff’s Motion to Dismiss Under the Court’s Inherent Power Because of Plaintiff’s Murder Plot
                                                                                                                 2
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               7.          Ten months later, Van Dyke’s threats escalated. On December 12,

   2018, Van Dyke sent two e-mails to Retzlaff, one minute apart:

               I promise you this motherfucker: if my law career dies, you die with
               it…. Go fuck yourself and what’s left of your miserable life. You have
               destroyed my life, and for that offense, you will pay with your own.
               That’s not a threat. That’s a promise, motherfucker.

   Exhibit 3. As bad as this was, Retzlaff did not foresee what was next. The risk is

   gravely more serious than Retzlaff believed. What might otherwise have been

   ignored as the empty threats of a crackpot now appear to be an assassination plot

   by a dangerously unbalanced individual capable of carrying it out.

               8.          In response to Retzlaff’s FOIA request, the City of Oak Point, Texas,

   on March 9, 2020,2 transmitted a file showing a secret audio recording by an FBI

   informant. Exhibit 4, p. 16. In the recording, Van Dyke elaborates a plan to

   murder Retzlaff, the undersigned attorney, and others.3 Id. Van Dyke reveals he

   “spent the better part of the week” planning it and had surveillance photos of

   Retzlaff from the “Proud Boys Arizona Chapter.” Id. Van Dyke even complains

   Retzlaff’s high rise apartment and post office box in Phoenix have a “significant

   number of cameras” preventing “a clean rifle shot at Retzlaff.” Id.




               2
                   The City of Oak Point did not release the file to Retzlaff until Texas Attorney
   General Ken Paxton rendered a legal opinion so allowing. Exhibit 5, 6.
           3
                   Van Dyke describes “two separate plans,” one of which “ended in the death of
   Retzlaff” and the other “a series of acts” that Van Dyke hoped would “terrorize Retzlaff and two
   other victims”—one of which was Retzlaff’s undersigned attorney—“forcing them to live in fear
   of when he would show up.”

   Van Dyke v. Retzlaff
              Retzlaff’s Motion to Dismiss Under the Court’s Inherent Power Because of Plaintiff’s Murder Plot
                                                                                                                 3
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                                              III. ARGUMENT & AUTHORITIES

               9.          For nearly as long as the federal courts have existed, it has been

   understood that “[c]ertain implied powers must necessarily result to our courts of

   justice from the nature of their institution,” powers “which cannot be dispensed

   with in a court because they are necessary to the exercise of all others.” Natural

   Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1406-07 (5th

   Cir. 1993), quoting Chambers v. NASCO, Inc., 501 U.S. 32, 42-43 (1991); United

   States v. Hudson, 3 L.Ed. 259 (1812); see also Anderson v. Dunn, 5 L.Ed 242

   (1821). The Constitution itself confers this authority upon all Article III courts as

   an incident to “The judicial Power.” U.S. CONST.., Art. III, § 1; see Chambers,

   501 U.S. at 58 (Scalia, J. dissenting). As this Court has noted:

               The Court possesses the inherent power “to protect the efficient and
               orderly administration of justice and ... to command respect for the
               court’s orders, judgments, procedures, and authority.”

   Willrich v. U.S. Marshall’s Office, 2015 WL 4776436 at *2 (E.D.Tex. 2015)

   (Mazzant, J.), citing In re Stone, 986 F.2d 898, 902 (5th Cir. 1993).

               10.         “[S]anctions imposed under a court’s inherent powers are

   appropriate in egregious cases of bad faith conduct such that in the informed

   discretion of the court, neither the statute nor the rules are up to the task.”

   ClearValue v. Pearl River Polymers, Inc., 242 F.R.D. 362, 375 (E.D.Tex. 2007),4

   quoting Chambers, 501 U.S. at 32. Sanctions pursuant to a court’s inherent


               4
                           Affirmed in part and reversed in part on other grounds, 560 F.3d 1291, 1310
   (Fed.Cir. 2009).

   Van Dyke v. Retzlaff
              Retzlaff’s Motion to Dismiss Under the Court’s Inherent Power Because of Plaintiff’s Murder Plot
                                                                                                                 4
Case 4:18-cv-00247-ALM Document 139 Filed 03/15/20 Page 5 of 7 PageID #: 3433



   authority vindicate judicial authority. Diamond Consortium, Inc. v. Manookian,

   2017 WL 3301527 at *13 (E.D.Tex. 2017); Carroll v. Jaques Admiralty Law

   Firm, P.C., 926 F.Supp. 1282 (E.D.Tex. 1996), aff’d sub nom. Carroll v. Jaques

   Admiralty Law Firm, P.C., 110 F.3d 290 (5th Cir. 1997) (citing Chambers, 501

   U.S. at 46).

               11.         The Court has inherent authority to dismiss this case based on Van

   Dyke’s alarming conduct. Chambers, 501 U.S. at 33; Halsco Engineering Co. v.

   Castle, 843 F.2d 376, 380 (9th Cir. 1988) (“Dismissal under a court’s inherent

   power is justified in extreme circumstances in response to abusive litigation

   practices.”) (citations omitted). A dismissal sanction does not require disobedience

   of a prior court order. In re Fitzsimmons, 920 F.2d 1468, 1472 (9th Cir. 1990).

   Nor must a court warn a party before imposing a dismissal sanction. Id.

               12.         Short of Retzlaff’s actual murder or assault—which Van Dyke has

   repeatedly threatened and which Retzlaff urgently seeks to prevent—it is difficult

   to imagine more egregious conduct than Van Dyke’s.                                                            Indeed, courts have

   dismissed cases for far less. See, e.g., Combs v. Rockwell Int’l Corp., 927 F.2d

   486 (9th Cir. 1991) (affirming dismissal of case under district court’s inherent

   authority because plaintiff and his attorney made numerous improper changes to

   his deposition transcript); Mohammed v. Anderson, 2019 WL 3943669 at *5

   (N.D.Ill. 2019) (dismissing action with prejudice based on plaintiff’s series of

   abusive and vulgar e-mails—although they did not contain threats of violence).



   Van Dyke v. Retzlaff
              Retzlaff’s Motion to Dismiss Under the Court’s Inherent Power Because of Plaintiff’s Murder Plot
                                                                                                                                  5
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                                                            IV. CONCLUSION

               13.         No litigant, including Retzlaff, should be forced to bear the stress

   and expense of seeking protection from an attorney’s abuse and threats of murder.

   This is especially true when they are evidenced by an audio recording of the

   attorney-plaintiff himself describing plans for an ambush and assassination of not

   only Retzlaff but his counsel.

                                                                  V. PRAYER

               14.         For these reasons, Retzlaff prays that the Court exercise its inherent

   power to dismiss this case with prejudice and grant such other and further relief, at

   law or in equity, as to which Retzlaff shall show himself justly entitled.

   Respectfully submitted,



   By:           /s/ Jeffrey L. Dorrell
   JEFFREY L. DORRELL
   State Bar No. 00787386
   Federal ID # 18465
   jdorrell@hanszenlaporte.com
   ANTHONY L. LAPORTE
   State Bar No. 00787876
   alaporte@hanszenlaporte.com
   14201 Memorial Drive
   Houston, Texas 77079
   Telephone 713-522-9444
   FAX: 713-524-2580
   ATTORNEYS FOR DEFENDANT TOM RETZLAFF




   Van Dyke v. Retzlaff
              Retzlaff’s Motion to Dismiss Under the Court’s Inherent Power Because of Plaintiff’s Murder Plot
                                                                                                                 6
Case 4:18-cv-00247-ALM Document 139 Filed 03/15/20 Page 7 of 7 PageID #: 3435



                                               CERTIFICATE OF SERVICE

          I certify that on         3-15       , 2020, the foregoing was electronically filed
   using the Court’s CM/ECF filing system, which will provide notice and a copy of this
   document to the following if a registered ECF filer in the United States District Court for
   the Eastern District of Texas, Sherman Division.

               Mr. Jason Lee Van Dyke
               Plaintiff, Pro Se
               108 Durango Drive
               Crossroads, Texas 76227
               Telephone: 469-964-5346
               FAX: 972-421-1830
               jasonleevandyke@protonmail.com



              /s/ Jeffrey L. Dorrell
   JEFFREY L. DORRELL




   Van Dyke v. Retzlaff
              Retzlaff’s Motion to Dismiss Under the Court’s Inherent Power Because of Plaintiff’s Murder Plot
                                                                                                                 7