Standard disclaimer: These statements are my own, and not the views of any organization. You can see a full disclaimer here.
As a preliminary note, the disclaimer in the above linked post notes that I am shooting for impartiality. This is a standard that I think may be unfamiliar to some. Impartiality doesn’t mean “pretending that all arguments are equal.” It means, “giving every argument the same shot of convincing me, regardless of who makes it.” It is not impartial to pretend that a bad argument is the equivalent of a good one.
With that out of the way, let’s talk about Ellora’s Cave’s reply on the question of remand.
Big picture reminder: There are four threads in the litigation at present.
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 concerns Thread C, regarding the removal to federal court.
Where we were before this: Dear Author removed this case to federal court on diversity jurisdiction grounds. EC moved to remand to state court on the grounds that DA had waived their right to remove to federal court by availing themselves of the state court. DA replied that participating in preliminary matters, like the discussion of the issuance of a preliminary injunction, does not waive the right of removal.
What has just happened: Ellora’s Cave filed their reply in the question of the remand to state court. You can read the reply for yourself. There are two supporting exhibits. The first is a journal entry from the state judge. The second is an email from Steven Mastrantonio, counsel for Ellora’s Cave.
What I think about this:
There are two issues here: the legal question of remand, and the question of whether the remand motion is frivolous. I will address these separately.
The question of remand
Before I go into the discussion, a little legal nomenclature is in order. When a court agrees to hear an issue, there are often preliminary issues that must be decided. Does this court have the power to hear this case? Is this the right place for a hearing to take place? What items should be allowed in evidence, and what powers will the courts use to compel parties to produce items that might hurt their case? And so forth. Those preliminary issues often have specific names–jurisdiction, venue, discovery, and so forth. These issues are important, but deciding them does not directly answer the question of whether the defendant is liable for the claims made by the plaintiff. That decision is the big one, and a decision on that issue is what is called a decision on “the merits of the controversy” or “the merits of the case” or “the merits of the underlying claims”. Sometimes, this is simply referred to shorthand as “a decision on the merits.”
There are other times when the term “the merits” is used. For instance, if someone asks the judge for a temporary restraining order, you may have an evidentiary hearing, and the judge will make a decision as to whether a party is entitled to a TRO based on the merits of the temporary restraining order evidence. This can also be referred to as “the merits” of the temporary restraining order. Again, the shorthand used is sometimes to refer to this event as “the merits” as well. You can generally tell which “merits” are meant by “the merits” by looking at the context.
But a decision on the merits of a TRO hearing is completely different from a decision on the merits of the case itself, even though they both use the same words in shorthand. You can see that distinction observed here, in FRCP 65(a)(2), which makes it quite clear that a hearing on a preliminary injunction is not a trial on the merits of the controversy unless it is officially consolidated with a trial on the merits by the court.
I lay this all out because EC’s reply confuses the merits of the controversy with the merits of a temporary restraining order. In order to evaluate the reply, you need to understand that first, these are two separate things, and second, that no lawyer–indeed, no halfway decent law student–should confuse the two.
This is important because both parties agree that the controlling law on the remand question is set forth in Rose v. Giamatti, a case that I discussed earlier. Rose v. Giamatti indisputably holds that “waiver of the right to remove occurs only where the parties have fully litigated the merits of the dispute,” id. at 922 (emphasis mine), but that “any preliminary proceedings short of an adjudication on the merits of an action will not constitute a waiver of the statutory right of removal.” Id. (emphasis mine). Most importantly, Rose made it clear that a preliminary injunction hearing is “designed to preserve the status quo pending an adjudication of the merits of the underlying claims,” id. at 923 (emphasis mine), and so does not count as an adjudication on the merits of the case.
This is important because the legal question before the court in the remand motion is whether Dear Author agreed to submit to a litigation of the merits of the case before the state court. Rose says, unequivocally, that hearings on a preliminary injunction do not count as a litigation of the merits of the case, and the only hearing Dear Author agreed to was a hearing on the motion for a temporary injunction.
So what does Ellora’s Cave have to say about that?
The answer is: Nothing.
Nowhere in the reply brief does counsel explain why agreeing to a preliminary injunction hearing counts as a litigation of the merits of the dispute. Instead, he avoids the issue by simply referring to both things–the merits of a temporary restraining order hearing and the merits of the underlying claims–as simply “the merits.”
Thus, for instance, they say that Dear Author evinced a “clear and unequivocal request and agreement to conduct a state court hearing on the merits,” Reply at 1, but do not mention in the reply that this was a hearing on the merits of a temporary restraining order. They say that Defendants agreed to “a full airing of the issues,” Reply at 2, but do not quote the full sentence: “There will be a full airing of the issues at a preliminary injunction hearing.” Journal Entry at 1 (emphasis mine). 
The only time when Ellora’s Cave specifies which merits they mean is when they state: “Such conduct is starkly different from expressly requesting and agreeing to a hearing considering merits of the case before the State court.” Reply at 3 (emphasis mine).
This is such a tricky line. Yes, the conduct at issue in Rose is starkly different than agreeing to hear the merits of the case. But the implication of that sentence is that Dear Author agreed to a hearing on the merits of the case before the state court–and counsel cites no evidence, and we have seen none, that Defendants agreed to such a hearing. Nowhere in the reply brief do plaintiffs mention that the hearing defendants agreed to attend was a hearing on a temporary injunction. So the fact that a hearing on the merits of the case would be starkly different than a hearing on a preliminary injunction is about as legally relevant to this particular case as the fact that otters eat fish.
Either counsel intends to imply something that is not true, or counsel is throwing that sentence at the end of this section because he likes adding irrelevant statements. Counsel for Ellora’s Cave is either being sloppy intentionally or he is being sloppy unintentionally.
My conclusion: Ellora’s Cave has no chance of success on its remand motion, and the only way that Ellora’s Cave can hash together a reply brief that sounds like it is actually replying is by conflating two things that are not only slightly different, they are materially different–and are spelled out and identified as materially different in the primary case cited by counsel on both sides.
The question of frivolousness
There is a lot of “I am rubber, you are glue” going on by both parties. “I’m frivolous? No, I’m not! You’re the one who is frivolous.”
I gave you the schedule according to Randazza when I talked about defendants’ opposition to the remand. Here, as best as I can piece together from everything, is plaintiffs’ version of the schedule:
- On October 21st, the court scheduled a hearing on the TRO.
- On October 22nd, counsel for EC informed Randazza that he was going to file a motion to remand and would move to continue the TRO hearing, but that he was going to need some time to file the motion for remand.
- On October 24th, the motion to continue was filed, precisely as Mastrantonio had told Randazza it would be.
- Sometime after that–probably later on October 24th–the lawyers spoke over the phone about this. At this point, according to EC’s counsel, “because the facts on the ground had changed, the urgency associated with a temporary restraining order had become attenuated,” which I take to mean that EC may decide in the future, or has already decided, not to seek an immediate TRO.
I do not think we have enough evidence to decide why anyone is doing anything at this point. We haven’t participated in conferences. We don’t know what either parties’ overall game plan is. We don’t know what’s going on. If I were a judge in this case I would see the allegations and cross-allegations and think, “Dagnabbit, it’s going to be one of those.” (Except I would not think “dagnabbit,” even if I were a judge.) So I am going to leave the broader question of why EC filed the remand motion as an exercise to the reader.
The only thing I can discuss is the question of whether the remand motion is frivolous. As I said above, the only way that EC can even make it look like they have a potential argument is by conflating the extremely material difference between the merits of a TRO hearing and the merits of the underlying case. How do we decide if this is frivolous? F.R.C.P. Rule 11(b) states: “By presenting to the court a pleading, written motion, or other paper . . . an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”
So the question we have is whether EC’s attorney believed that a decision on the merits of a claim is different from a decision on the merits of a temporary restraining order–or, as I said earlier, whether the attorney was sloppy intentionally or unintentionally. It’s hard for me to believe that conflation was unintentional.
First, a first-year law student with a basic understanding of civil procedure would not confuse the two. More importantly, it is quite clear that counsel for Ellora’s Cave does not confuse the two. In footnote 8–the only footnote where counsel for Ellora’s Cave uses the word “temporary” in the entire reply brief–counsel attacks Randazza’s view of the schedule. He claims that he never said they wanted to “buy time,” as Randazza claimed, to refile their TRO motion. Instead, he states that EC decided there was no need to hold a separate TRO hearing, because “the facts on the ground had changed, the urgency associated with a temporary restraining order had become attenuated, and that a consolidation of the hearing with the final hearing on the merits under Rule 65(a)(2) would avoid 2 hearings, 2 trips for defense counsel and his client, 2 briefings, and twice the use of the Court’s time and resources.”
This footnote makes it quite clear that counsel absolutely understands the difference between a hearing on the merits of the TRO and a final hearing on the merits of the case. It also makes it clear that until the “facts on the ground” changed as of the October 24th conversation, EC was under no illusions that the hearing on the TRO and a hearing on the merits had been consolidated, and had not suggested a consolidation to opposing counsel.
Every lawyer jockeys before the court to put the evidence in the best light possible to their clients. We all know that. Facts that look like buying time to refile the TRO to one person look like efficiently combining hearings to another.
But there is a point when you cannot make a colorable argument about the underlying facts, and that’s the point when a lawyer’s duty as an officer of the court takes precedence over the need to zealously represent their clients. I am at a loss as to how someone who is acting as an officer of the court can file a reply brief that fails to quote material, limiting words in a prior controlling decision and do so in a way that implies they have a colorable argument when, in fact, they do not.
What will happen as a result? I have no idea.
How judges handle their courtroom is a matter of discretion. It’s kind of like parental discipline. Some parents are swift to spank. Some start with a stern “I’m very disappointed in you” and never go past grounding or taking away video games. The state tolerates a wide variety of parental discipline–including the complete lack of discipline–and you have to be wildly inappropriate before it intervenes.
Same is true with the courtroom. I don’t know what kind of disciplinarian the judge here is. I believe that there are some judges who would not take kindly to this particularly game. We’ll find out what kind of judge we have here pretty soon.
In terms of my inborn biases in judging what constitutes a frivolous motion, I must disclose that I clerked for a judge who stands near the top end of the disciplinarian scale. He’s famous for ordering parties to show cause why they should not be sanctioned. Also for sanctioning parties. He’s so outspoken that some law professors occasionally question whether he goes too far. I don’t pretend that I know what my former judge would think of either this case or this motion, but one of the things I picked up from that clerkship is a sincere dislike for even a hint of funny business. “Officer of the court” means something. Lawyers should act like it.
But take what I say with a grain of salt: things that cross my “that’s not okay” line might not bother other judges. This reply crosses my personal “not okay” line.
What happens next: We will hear from the judge regarding the remand motion. I don’t know how long it will take him to issue a decision. I don’t know what, if anything, he will say about the question of frivolousness. After that, I don’t know if we’ll hear about the temporary restraining order.
 As a sidenote: The plaintiffs attach here as proof that Defendants agreed to “a full airing of the issues” a journal entry from the state judge. When I first saw this, I didn’t tweet a link, because at first glance I thought it was simply the joint motion for continuance of the temporary restraining order filed before the state court, which we have all seen before. It was not. This is the judge’s memorializing that joint agreement between the parties–making it legally enforceable as a court order. There is very little difference between those two documents, but that “very little difference” is significant because the preamble to the two documents differ. The joint motion for continuance starts like this:
NOW COME COUNSEL for both Plaintiffs, Ellora’s Cave Publishing, Inc., and Jasmine-Jade Enterprises, LLC, and Defendants, Dear Author Media Network, LLC, and [Jane Litte], and hereby submit this Joint Motion for a Continuance of the Temporary Restraining Order Hearing. Counsel agree:
The journal entry starts like this:
This cause was set for a Temporary Restraining Order hearing on September 30, 2014. After informal discussion in chambers and without convening a hearing, this Court ordered the parties’ counsel to draft a temporary resolution to be in effect until a full hearing on the issues is convened and the Court subsequently makes a determination on the merits. The parties’ counsel submitted their temporary resolution to this Court and this Court hereby accepts their proposal, Ordering, Adjudging, and Decreeing that:
Using the journal entry rather than the joint motion matters. When counsel for Ellora’s Cave says that Dear Author agreed to a hearing on “the merits”, the journal entry by the judge is the only document that uses the word “the merits.” Even there it is quite clear upon a two-second examination that the state judge means “a full hearing on the merits of the temporary restraining order.” Had EC’s counsel pointed to the joint motion for continuance instead, you wouldn’t have even needed those two seconds to determine that DA’s agreement was with respect to only a hearing on the temporary restraining order.