ECF 139 - Retzlaff's MTN To Dismiss

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.

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
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.”

3
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).

4
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).

5
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

6
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

7

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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

JASON LEE VAN DYKE, §

RETZLAFF’S MOTION TO DISMISS BECAUSE OF PLAINTIFF’S NEWLY-

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

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

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

under the Texas Citizens Participation Act. Retzlaff unsuccessfully appealed.

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.

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

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

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

Partially Probated Suspension judicially admitting there was “legally sufficient

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

Van Dyke v. Retzlaff

7. Ten months later, Van Dyke’s threats escalated. On December 12,

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

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

Van Dyke v. Retzlaff

III. ARGUMENT & AUTHORITIES

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

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

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

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

Van Dyke v. Retzlaff

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

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

power is justified in extreme circumstances in response to abusive litigation

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

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

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

Van Dyke v. Retzlaff

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

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

only Retzlaff but his counsel.

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

By: /s/ Jeffrey L. Dorrell

Van Dyke v. Retzlaff

I certify that on 3-15 , 2020, the foregoing was electronically filed

Mr. Jason Lee Van Dyke

/s/ Jeffrey L. Dorrell

Van Dyke v. Retzlaff

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