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Federal Judge Dismisses Fireclean vs Tuohy Based On Jurisdictional Issues

We’ve just received word that United States District Court Judge James C. Cacheris issued an order dismissing Fireclean v. Tuohy for defamation, based on personal jurisdiction. Fireclean failed to satisfy the court that the case should be tried in Virginia when Touhy and his Vuurwapen Blog are physically located in Arizona. This also dismisses the case against Everett Baker who is from New Hampshire. This is an interesting precedent for web based writers in particular, who could previously be sued in another state for their writing.

Now, we get to see if Fireclean will pursue the case in Arizona, and perhaps New Hampshire as well. In Arizona the question of corporate personhood is more straight forward and Fireclean may only have to demonstrate negligence rather than malice as well as negligence.

UPDATE: At least he’s consistent. Tuohy even misleads about this. Rather than just telling people why the case was dismissed (jurisdiction), he’s got people believing that the case was dismissed because the Judge said the case had no merit.

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62 Responses to “Federal Judge Dismisses Fireclean vs Tuohy Based On Jurisdictional Issues”

  1. PPGMD says:

    The judge did much more than just dismiss the case, he ripped apart Fireclean’s case. Based on the judge’s comments I find it unlikely that he would’ve ruled in Fireclean’s favor even if the case has continued.

    • SSD says:

      Perhaps. None of that matters now though.

      • Joglee says:

        I bet you’re disappointed given your prior posts and opinions on this subject.

        • SSD says:

          This ruling actually protects bloggers. As for the issue between Fireclean and Tuohy, it’s not over til it’s over.

          • Mark E. says:

            They lost their choice of venue. Now they will have to go forward in a less “friendly” venue. I would say that was a substantial loss.

            • SSD says:

              After reading up on the laws in Arizona, I’d say it is much more friendly to their case.

      • PPGMD says:

        Actually it does as it gives you a window on how at least this judge looks at the case. Maybe things would’ve have changed on cross examination, but it should be a clue to them that their case might not be as strong as their lawyer thinks.

        • SSD says:

          The judge only ruled on venue.

          • PPGMD says:

            Yes he only ruled on venue. But that doesn’t mean that you can’t take insight on how he viewed the case based on some of the statements in the ruling.

            He made it clear that he saw no conspiracy to damage Fireclean’s reputation, that the idea that Fireclean might be a vegetable oil were out on the internet by statements such as Fennell’s and the fact that Tuohy was quite clear that he started the whole thing to prove Fennell wrong. And that the tests chosen were based on the advice of professors in organic chemistry not chosen to an attempt to defame Fireclean.

            Granted things can change once you get into cross examination, but on the surface it would seem that Fireclean has an uphill battle when the judge doesn’t believe two key claims of Fireclean’s case.

            And what does Fireclean gain by continuing the case? Tuohy isn’t rich, the N-numbers that they use as an example of him being wealthy are for remote controlled drones, so money is unlikely. Clear their reputation? It might do that but they are more likely to be seen as a bully pushing around an amateur blogger. Seems to me that they would be paying out a lot of money for something that has questionable benefit.

            • SSD says:

              There was no case presented, just initial motions. A new court brings new laws and a new judge with his own opinion on those laws.

              • LawDog says:

                True, however in the interests of judicial economy, judges will often telegraph their inclinations even though their ruling is limited in scope. Thhis is done for several reasons including saving all parties wasted costs on continued litigation, as well as needlessly adding to and already overloaded docket. My guess is this is what they did here. Fireclean had a massive uphill battle in this one and the judge may have done them a favor if they are interested in reading between the lines.

                • SSD says:

                  The judge discussed conspiracy. The judge in the Fennell case has allowed discovery. That may well expose information which this judge denied.

                  Additionally, with the venue change comes separate cases. The conspiracy may become less important if each case is tried separately.

                  • PPGMD says:

                    Third party discovery is very very limited. It is highly unlikely that Fireclean’s lawyers can ask for anything except perhaps communications between Tuohy and Fennell.

                    And the motion to deny jurisdictional discovery in the Tuohy was because and I quote the judge “it was a fishing expedition” they were asking for in depth information like financials that deemed not to be relevant to the motions at hand. So they aren’t going to get it via third party discovery.

                    Also one of the core allegations of the Fireclean case between Tuohy and the others is that they maliciously conspired to defame Fireclean. That they purposely got together to select these two tests because it will show that Fireclean is a vegetable oil like Crisco.

                    So if conspiracy is out IMO it weakens their case. Because everything publicly posted by Tuohy (which may be wrong, but Fireclean hasn’t presented any evidence to the contrary) said he started this whole quest to prove people like Fennell wrong, that Fireclean wasn’t Canola oil.

                    But as I am sure you will respond we will see which we will. But IMO if they file in Arizona I don’t think their luck will be any better, as I believe that unless there is some dark secret that comes out in discovery Tuohy will win the case.

                    Now I do believe that they might have a case against Fennell. But it is going to be hard to quantify which damages are due to Fennell, and which are due to Tuohy’s reporting.

                    • SSD says:

                      Like I said, you need to offer your in-depth legal services to Tuohy.

                      Based on the judge’s decision in Virginia, it’s a whole new ballgame. They might not go for conspiracy and the discovery in the Fennell case may be enough to show what they need to. Lots of “mights”. Hell, Fireclean might not file in Arizona, but I wouldn’t bet on it. I’m more than happy to let the courts do what the courts are gonna do. Talking about it here effects the outcome, not one bit.

                    • PPGMD says:

                      He already has some of the best lawyers in the industry working for him.

                      You are allowed to spout your opinion (like you claiming that the laws in Arizona may favor Fireclean) on the case, but no one else is?

                    • SSD says:

                      Your opinion, however empassioned, quite frankly isn’t going to change the situation.

            • SSD says:

              Btw, aren’t you sponsored by a lube company?

              • PPGMD says:

                Yes, but my sponsor isn’t involved in this. This is entirely my personal opinion that independent reviewers shouldn’t have to fend off baseless lawsuits.

                I honestly have no opinion of Fireclean as a product as I’ve never used it. If you look at all my posts at no point do I disparage Fireclean.

                • SSD says:

                  Reviewers, independent or not, should act ethically.

                  • PPGMD says:

                    I don’t see any ethical violations. Other than some click bait titles that were toned down (which lets be honest is quite common) what I saw looked very clean and unbiased.

                    • SSD says:

                      Unethical? I’ve said all of this before, and given examples, but I’ll repeat it since you can’t seem to understand.

                      Touhy’s methodology is lacking. He presents information in a manner which misleads the reader. On occasion, he outright lies. When confronted, he doubles, and even triples down.

                      He could have completely avoided the situation he is currently in. He chose not to. Consequently, I have no sympathy for him and you’d be hard pressed to find anyone in the firearms industry who does. If you can, I urge you to invite them here to use their real names to stand up for him and his behavior.

                    • PPGMD says:

                      Most people I know in the firearms industry don’t give a damn about the Fireclean v Tuohy hub bub. I’ve only heard even one serious discussion about the whole fiasco, the rest were just jokes.

                      Now of those I’ve talked to on the media side of the industry most I know side with Tuohy as they feel Fireclean winning could have a chilling effect and independent testers. What if you do a ballistic test of some new gimmick ammo, and they don’t like the results so they sue you?

                      Methodology? He had people qualified to do so stick samples in two different testing machines (one doesn’t need to be a PhD in Chemistry to be qualified to run those machines we had a low end IR spectroscopy machine in our under graduate level chem lab), and had professors in Chemistry interpret the results.

                      What more do you want? Yes if he were submitting this for a Chemistry lab or for a court evidence calibration reports and exact details of the procedures would be needed. But this isn’t a school report or a court record this was an amateur blog site what he posted was more than enough. And it is the norm to skip that stuff, many of the ballistics testers claim to use calibrated gel but few show the results of the BB shot (though sometimes if you look closer you can see the BB’s track through the gel if they are using the clear stuff).

                      And if his methodology was off than why was the IR spectroscopy graph from Fireclean’s professional lab effectively identical to the ones post and Vuurwapen Blog? So you don’t get bogged down in details the precise height of the peaks isn’t relevant unless we know both tests were preformed with the exact same amounts, but if you compare the position and relative intensities the independent lab’s test and Tuohy’s are effectively the same.

                      Misleading, I’ve never seen anything misleading. Nor have I seen any lies. The one “lie” you quote in this story has more to do with a difference of opinion. His lawyers, who are among the best in the industry on this subject, probably told him that those statements didn’t bode well for Fireclean’s case and Tuohy ran with it. You may not agree with it, but he was hardly lying.

                    • SSD says:

                      I covered Tuohy’s shenanigans in the comment section of previous posts. You’ve read them. He has done plenty to earn his bad reputation.

        • Neck Stepper says:

          You’re shitting me right? Go hump some other dude’s leg. Touhy was a shitstain when he was a Corpsman and he still is now. Wanted everyone to know how smart he was but was afraid to go on patrol and leave the FOB. He isn’t fit to eat the peanuts out of John Wayne’s shit.

    • Neck Stepper says:

      Hey, does NTS know you’re getting a piece of that too? You two and Andrew should get a room.

  2. BillC says:

    This sounds like a perfect time for FIREClean to let, it, go.

    • SSD says:

      They’ve got three choices: drop it, appeal, or file in Arizona. I’m betting on option three.

      • Jambo says:

        One would hope that they would save their money instead of wasting it on useless litigation. It doesn’t look like they have a particularly strong case, at least from reading the court document. Of course, there is the chance that Tuohy is completely correct in his assessment. I guess they might continue litigation if they know he is not, but that doesn’t mean they will win.

      • Dr. Greg says:

        Betting or hoping? It seems to me the later.

        • SSD says:

          Betting, but I’ve made no bones about what I see as a lack of ethical behavior on Touhy’s part. Just look at his Facebook announcement above. Touhy purposefully misleads his followers about the true nature of the judge’s decision. When he was initially served in the case, he misled his Facebook followers about what he was being sued for and asked for people to send him money based on that statement. It’s a pattern of behavior.

          You’ve got to go out of your way to get sued. He went out of his way, even making light of Fireclean’s warnings of legal action. He has gotten what he asked for.

  3. Brian says:

    I saw nothing in the memorandum opinion that addressed the merits of Fireclean’s case. The case was dismissed, without prejudice, solely on the grounds of a lack of personal jurisdiction over the defendants in Virginia.

  4. Kevin Boland says:

    It was simply a case of jurisdiction, nothing on the merits of the case.

    I think that FIREClean will go with option #3, I would if I were in their shoes…

    • Case says:

      This is true, but the Judge had a lot to say on the merits of the case in his ruling:

      “Plaintiff’s theory is that Baker and Tuohy conspired to publish a test that would show FIREClean is the same as Crisco or canola oil, even though they knew the test was inadequate to reach that conclusion, so as to attract more viewers to their blogs. Although such a conspiracy is logically possible, it is not plausible based on the facts in this record. The foundation of Plaintiff’s theory is that a critical review of FIREClean would attract more readers to the blogs. Criticisms of FIREClean being Crisco, however, were already commonplace online due to earlier published statements in the Vuurwapen blog, the Firearm blog, and George Fennell’s publications, among others. The Court finds no reason to conclude that an article affirming the prior tests would attract more readers than results disputing the prior test results.

      Furthermore, the record is replete with facts providing non-conspiratorial explanations for why Baker chose the Infrared Spectroscopy and NMR Spectroscopy to analyze FIREClean, including the advice of his professors, his personal research on the best testing methods, his available equipment, and the methods that two individuals with doctorates in chemistry used to test FIREClean. In sum, it does not plausibly or fairly follow from the facts alleged that Baker and Tuohy had a preconceived plan to conduct a fraudulent test so as attract more readers to their blogs by declaring FIREclean to be Crisco.”

      I don’t have a horse in the race but the judge clearly does not agree with your suggestion to file in AZ.

      • Brian says:

        I don’t have a “horse in the race” either and I think your assessment is flawed. At most one could argue the judge was skeptical of the cospiracy claim. Regardless it is dictum and did not address in any way the fundamental claim of defamation. People see what they want to I suppose.

  5. contractor says:

    Hahahaha….good.

  6. Chuck says:

    This reminds me of the time my unit was mobilizing and a fire team leader in my squad threatened to write a counseling statement for a Corporal for making fun of him.

    “So you’re writing me a counseling statement for making fun of you?”

    • Anibal says:

      That’s nothing, most of the pack rats almost got counselling statements for knowing more about packing chutes than the new E5 that came over from heavy drop land and for us reminding him, constantly he didn’t know what he was doing, good thing the other E5 and NCOIC shut him down fairly quick, we were ready to not sign anything had he tried

  7. Joe says:

    If that quote was from the judge, then he was NOT LYING. I didn’t realize SSD had such a problem with Andrew, who’s always tried to support the firearms community with actual testing. I like a guy who isn’t beholden to a ton of commercial sponsors…or possible future ones.

    • SSD says:

      Lying? Yeah, he’s lied. Like when he told people he was being sued for assault. That’s a lie. Or, when he told people he’s never owned an airplane but had one for sale and listed himself as the owner.

      His misleading post in Facebook I shared above? Well, some people would call it lying when you lead people to a conclusion that isn’t true.

    • Neck Stepper says:

      I read that post on Andrew’s Facebook. Sure sounded like the case was dismissed because of a failure to prove conspiracy but we all know that’s not true. What’s the opposite of truth? That’s called a lie.

      • NTS says:

        Neck stepper,

        read the WHOLE THING!

        “MEMORANDUM OPINION
        This online defamation lawsuit is before the Court on
        Defendants’ motions to dismiss for lack of personal jurisdiction
        and failure to state claims upon which relief can be granted.
        For the following reasons, the Court will dismiss for lack of
        personal jurisdiction. Accordingly, the Court will not reach
        Defendants’ arguments for dismissal on the merits.”

        The claims of conspiracy were ruled to not have merit. End of story.

        But thats not important I suppose if you’re interested in splitting hairs and engaging in circus worthy feats of mental gymnastics.

        • SSD says:

          Andrew,

          We all know that most people just scan Facebook and form opinions based on headlines. You’re counting on it. Of course you are going to tell people to read the whole thing, but only when they call you out for your misleading content. If they don’t read it all and form the opinion you want them to, you’re quite pleased with yourself.

          Keep doing it. It’s good that people see you for what you are. You’re not fooling everyone and you’re only hurting your own reputation in the firearms industry. Eventually, even your most strident supporters will work it out as well.

          -Eric

          • NTS says:

            “if they dont read it all and form an opinion you want them to?” No, this isn’t seething in irony whatsoever. Not even a little bit.

            And you’re accusing me of being Andrew because I’m not towing the line of your circle-jerking echo chamber that is completely devoid of facts?

            Again, irony, with the accusations of controlling narrative via facebook. Controlling narrative, facts be goddamned, is exactly what you’re attempting to do here, despite those pesky, complicated facts that undermine your conclusions.

            I couldn’t care less about any previous pissing matches between you and andrew, have at it. What does interest me is that you have been proven wrong, refuse to acknowledge it, and, when corrected on it (not just by myself), you continue on like the black knight from monty python.

            Call it little tolerance for BULLSHIT, Eric. Its your credibility do with it as you please. Out.

            • SSD says:

              I haven’t compromised my credibility here and I’m not misleading anyone. The facts are what they are. And, I’m not controlling anyone’s comments, after all, you’re here, hiding behind a fake name. I haven’t stopped you from doing that. So much for standing up for what you believe in. I’m not like Andrew who blocks people on Facebook who say things that shine a light on his behavior. You’re position is laughable.

              These are the facts. The judge dismissed the case based on jurisdiction and he did so without prejudice. His opinions on other issues surrounding the case are nice, but if the case goes to trial in another state, the court will most likely see things quite differently. That’s all reality. The fantasy here is trying to turn an order to dismiss for jurisdiction into something it’s not. And that’s what you and your buddy Andrew are trying so desperately to do.

              You can cry a river if you want for your buddy but the fact remains that he worked very hard to be sued over blog content.

              • NTS says:

                Facts? thatll have to be your little secret. Enjoy your delusional nonsense.

                Same with your puzzling obsession that im somehow andrew’s friend. Nothing could be further from the truth.

                I can see your immunity to facts will not change anytime soon, so enjoy being the gossiping rag with the equivalent credibility of gun show gossipers.

                and darkhorse? go fuck yourself, scumbag.

                • SSD says:

                  Considering you’ve only ever come here under an alias and commented on one topic in over 17000 posts, I’d say you’ve done a great job of identifying yourself as the gun show gossiper.

                  Say “Hi” to Andrew!

            • Darkhorse says:

              Hi Andrew- suck a bag of dicks

        • Neck Stepper says:

          Why should I have to read the whole thing? According to you everything Andrew says is truthful so I should be able to get the whole story from just the Facebook post.

          Your comment is a lie. The Judge did not rule anything except what SSD posted right up there in the story. That’s the ruling. The Judge didn’t even hear the case, he stopped everything before it got started.

        • SSD says:

          You’ve shared this NTS:

          “MEMORANDUM OPINION
          This online defamation lawsuit is before the Court on
          Defendants’ motions to dismiss for lack of personal jurisdiction
          and failure to state claims upon which relief can be granted.
          For the following reasons, the Court will dismiss for lack of
          personal jurisdiction. Accordingly, the Court will not reach
          Defendants’ arguments for dismissal on the merits.”

          You’ve then made the claim:
          “The claims of conspiracy were ruled to not have merit. End of story.”

          But what you’ve said isn’t true. The case was indeed dismissed for lack of personal jurisdiction. However, in the very next sentence, which you shared, the opinion is quite clear that the court is not ruling on the motion to dismiss based on merit. It’s not going to even bother because it can dismiss the case based on jurisdiction.

  8. NTS says:

    Once again, totally wrong on this issue, and you couldn’t resist accusing Andrew of something could you? Had to throw in one last punch, didn’t you? Emotionally involved much?

    Check the whole picture first before jumping to the defense of your darling, fireclean

    Read page 25 of the ruling, fella

    “Plaintiff’s theory is that Baker and Tuohy conspired to publish a test that would show FIREClean is the same as Crisco or canola oil, even though they knew the test was inadequate to reach that conclusion, so as to attract more viewers to their blogs. Although such a conspiracy is logically possible, it is not plausible based on the facts in this record. The foundation of Plaintiff’s theory is that a critical review of FIREClean would attract more readers to the blogs. Criticisms of FIREClean being Crisco, however, were already commonplace online due to earlier published statements in the Vuurwapen blog, the Firearm blog, and George Fennell’s publications, among others. The Court finds no reason to conclude that an article affirming the prior tests would attract more readers than results disputing the prior test results.

    Furthermore, the record is replete with facts providing non-conspiratorial explanations for why Baker chose the Infrared Spectroscopy and NMR Spectroscopy to analyze FIREClean, including the advice of his professors, his personal research on the best testing methods, his available equipment, and the methods that two individuals with doctorates in chemistry used to test FIREClean. In sum, it does not plausibly or fairly follow from the facts alleged that Baker and Tuohy had a preconceived plan to conduct a fraudulent test so as attract more readers to their blogs by declaring FIREclean to be Crisco.”

    So nice try in trying to draw attention away from this fact, but good thing others can read. Its andrew who is not guilty of deception here.

    • SSD says:

      I’m not pro Fireclean. I’m anti Tuohy and I’m pleased to see anyone who wants to hold his feet to the fire.

      If you guys are so sure of his innocence, what difference does it make if Fireclean files a lawsuit in Arizona? Let the courts work it out.

      • PPGMD says:

        This actually explains a lot, I was wondering why you had such a hard on for this lawsuit you hate Tuohy.

        Personally I am neither anti-Fireclean nor pro-Tuohy, I am against the lawsuit. There are a ton of issues that allowing companies to sue critics that post truthful pieces. That means any blog that wants to publish anything but a glowing review of a product needs to have enough money to defend themselves against defamation lawsuits.

        This lawsuit sets a dangerous precedent, and to support Fireclean efforts simply because you hate Tuohy seems like someone cutting off their nose to spite their face.

        • SSD says:

          I don’t hate Tuohy, I just think he deserves some accountability. Whatever it is you do for a loving, don’t you want the people who share your profession to be ethical?

          This lawsuit doesn’t mean what you’ve been led to believe at all and this doesn’t set any kind of a precedent. If you publish things as facts, you need to make sure your facts are verifiable. That’s all. Now that might intimidate many who want to be able to publish unverifiable information, but that’s a good thing. Unless of course, you have no interest in verifiable facts and prefer to make a lot of noise by misleading people. Don’t you want the news to be true?

          In spite of this case going on, people write negatively about products every day and aren’t being sued. What you haven’t figured out is that in spite all of that, Andrew Tuohy was sued. If you’re serious about your concerns, take a look at what Andrew Tuohy did and work out why he was sued. He had opportunities to avoid the situation but didn’t take them seriously because he’s never been held accountable in the past and he has a history of unethical behavior.

          • PPGMD says:

            My industry is filled with all kinds, some ethical, some competent, others might not fit in one or both of those categories. Some are even aholes, heck I’ve been called an ahole once or twice.

            What facts aren’t verifiable? Tuohy published that Fireclean is a vegetable oil, that fact isn’t in dispute it is in Fireclean’s very vague patent application. He has had at least two separate labs do the tests and they are effectively identical. Any argument on the actual test themselves is pointless because Fireclean’s own lab also published results that were effectively the same.

            So that only leaves some of the statements he made. So I am wondering what set you off, was it the attempt to speculate on the actual oils used to make Fireclean based on the specifications listed on the patent? Or was it the fact that he questioned the Vickers/Fireclean video because the brass had different head stamps? Or was it simply the usual click bait titles that you see hundreds of on the internet?

            • SSD says:

              Dude, I’ve gone over this more than once. He has a long history of cutting corners and presenting questionable data. I’m not going into it again.

              However, it does sound like you get how fucked up he is.

    • Neck Stepper says:

      When Andrew was in Iraq we all figured he was a catcher, but the way you defend him, I’m thinking maybe he pitches.

  9. Mohican says:

    Interesting, though this fact or any other isn’t going to change I will go on using Slip2000 EWL.

  10. Angry Mike says:

    Hey, whatever happened with this mess?
    Did it just die?
    Fire Clean let Tuohy off?
    Was on another blog and saw them making fun of Fire Clean w/ a bottle of Crisco