Hi everyone. First of all, the reminder: I’m posting this in my personal capacity, and not as a representative of any other organization.
I promised on Twitter days ago that I would post (briefly) about the remand motion. I’ve been buried head down in an upcoming book launch and haven’t had the free brain space to tackle this.
So here follows an update, and a very boring discussion of the very boring remand ruling.
Where we are in the litigation
Recall that there are four major threads going on:
A. The claim by EC against DA alleging defamation.
B. The motion for a temporary restraining order by EC.
C. The removal of the case to federal court.
D. The counterclaim by DA against EC alleging abuse of process.
This post covers C, the removal of the case to federal court, and A, the claim by EC against DA.
The removal of the case to federal court
C. As a reminder: Dear Author removed the case to federal court. Ellora’s Cave asked the judge to remand the case back to state court on the grounds that DA had waived their statutory right of removal by various conduct. If you want to remind yourself of what happened in greater detail, you can read about EC’s remand motion, DA’s response to the remand motion, and EC’s reply to that response.
The judge has ruled on the remand motion in this case. You can read the ruling in full here. The ruling is pretty bare bones. The judge lays out the procedural history (familiar to those who are following the litigation, so I won’t rehash). The judge lays out the law in greater detail, saying that the law is that actions taken to maintain the status quo do not waive the statutory right of removal.
The judge then looks at what happened in this case and concludes:
All paragraphs highlighted by Plaintiffs are in furtherance of maintaining the status quo until the parties could litigate the motion for preliminary injunction. The stipulation was reached four days after the Complaint was filed and just 48 hours after defense counsel was hired. The stated purpose of the stipulation was to continue the TRO hearing and allow the parties additional time to prepare for the injunction hearing. As such, the stipulation set parameters for party conduct and discovery efforts until the injunction hearing was litigated a month later.
This stipulation was procedural and did not demonstrate an intent on behalf of the Defendants to waive their right to removal. Likewise, it did not request the state court to make a decision on the merits of the case.
Translation: Everything that happened in state court was purely for the purposes of maintaining the status quo. None of it requested a judgment on the merits of the case in state court.
And the court then denies the remand motion. As we all knew it would.
The judge says absolutely nothing about the cross-sniping between the parties. He doesn’t ask for anyone to show cause. He doesn’t say anything at all about the question of merit.
Why not? Because it’s his court room, and he doesn’t have to. End of story. We will see if this cross-sniping between the parties persists, and if so, how the judge continues to handle (or not discuss) it.
This is almost certainly going to close out thread C regarding the remand order, unless someone really doesn’t like having money and wants to beat their head against a remand denial by filing motions to reconsider, blah blah blah. But I doubt it.
The main case
The only other things that have happened recently are basic scheduling issues.
The judge has scheduled a case management conference on January 26th. “Case management” is exactly what it sounds like. The judge is trying to figure out a number of things: Will this case settle? Can he encourage the parties to settle, or perhaps agree to arbitration? How long will discovery take?
The parties must attend. They’ll have to fill out some paperwork before hand. For instance, each party will have to come up with a preliminary budget estimate, something that will make the parties think about how much the litigation will cost them, and if settling is an option. The parties will also have to make a report about discovery and when the parties can hold a status hearing.
In short, the point of a case management conference is to figure out (as best as the parties know how) (a) how big of a pain in the behind this case will be, (b) how many people it will be a pain in the behind for, (c) how long it’s going to be a pain in everyone’s behind, and (d) if there’s any way to make it a pain in the behind of someone besides the judge.
Do interesting things happen at case management conferences? I’m sure they have before. But I wouldn’t count on it.
For the record, today Jane Litte filed a motion to appear at this case management conference telephonically. (As a note, I’ve blacked out some nonmaterial personal information from this. I will try to do this for both parties in the event that nonmaterial personal information surfaces in a court filing. We don’t need to know details about where any of the parties live or how they spend their time on unrelated matters. I recognize that these things are publicly available, but I’m just not comfortable making it easier for people to delve into someone else’s private matters.)
So that is where we are: we’re standing on the brink of the main case, peering over the edge, and saying, “Wow, that’s a lot of paperwork.”