This litigation is getting complicated enough that I’m going to start separating it out into threads and giving each separate thread a letter. Some of these threads will close out relatively swiftly; some may be around for a very, very long time.
A. The claim by EC against DA alleging defamation.
B. The motion for a temporary restraining order by EC (discussed here).
C. The removal of the case to federal court.
D. The counterclaim by DA against ECÂ alleging abuse of process.
I’m going to be referring to these separate threads for a while. I’m separating them out like this because you can (mostly) treat them as independent. You don’t have to know what is happening in A to understand what is happening in C or D.
Thread B: the motion for the temporary restraining order.
Where we are:Â EC filed a motion for a TRO when it filed its suit. The state court decided it needed a longer hearing to decide the matter. That longer hearing was originally scheduled to be heard in state court on October 27th; when the defendants removed to federal court, a hearing before the federal judge was scheduled for October 29th.Â
The easy one to discuss is the motion to continue. That motion basically says, in plain English: “We have a hearing scheduled for October 29th at 1:30 PM. I have another hearing scheduled at the same timeÂ and so cannot attend. Also, I think we need to schedule a discussion ofÂ my remand motion before we talk about the TRO. Let’s reschedule.”
This is fairly routine.Â The TRO hearing will almost certainly get bumped. Not a big deal.
What to expect next: The court will probably recalendar the TRO hearing.
Thread C: The removal to federal court.
Where we are: EC originally filed the law suit in state court. The defendants removed the lawsuit to federal court under what is known as “diversity jurisdiction”–meaning that the defendants are from a different state than the plaintiffs, and the amount is large enough to be serious. There are a lot of reasons to prefer federal courts: judges know federal law (including first amendment law), harsh penalties for dilatory discovery, uniform procedural rules so that the out-of-state counsel isn’t at a disadvantage.
Ellora’s Cave has now moved to remand the case to stateÂ court. They claim:
Defendants waived their right to removal based upon diversity jurisdiction because of their clear and unequivocal intent to proceed with this case in the State court. Because these actions were clearly inconsistent with the Defendantsâ€™ right of removal, remand to the State court is appropriate.
Here is EC’sÂ full memorandum in support. Notice what they are not arguing: they are not disputing any of the jurisdictional requirements–that is, they don’t dispute that the parties are from different states or that the amount in controversy is greater than $75,000. They are claiming instead that DA availed itself of the proceedings in state court and so waived the right to remove.
Here’s the general rule on waiving the right to remand:
The law is clear that a defendant may, by making affirmative use of the processes of the state court, waive the right to remove the action to federal court. California Republican Party v. Mercier, 652 F.Supp. 928, 931 (C.D.Cal.1986). The basis for this rule of law is that it is unfair to permit a defendant to experiment with his case in state court, and, upon adverse decision, remove the case for another try in federal court. Bolivar Sand Co., Inc. v. Allied Equipment, Inc., 631 F.Supp. 171, 172 (W.D.Tenn.1986). Any intent to waive the right to remove, however, must be evidenced by “clear and unequivocal” action. Bedell v. H.R.C. Ltd., 522 F.Supp. 732, 738 (E.D.Ky.1981) (footnote omitted).
Rose v. Giamatti, 721 F. Supp. 906, 922 (S.D. Ohio 1989).
Translation for the lay person: You get the side-eye if you start in state court, you start adjudicating the merits, you start losing, and then you try to go to federal court as a do-over.
This motion gets the “you gave it the old college try” pat on the back, but I doubt it’s likely to succeed.
Let’s talk law. Rose, one of the cases cited by EC,Â is not very helpful for theÂ plaintiffs. InÂ Rose,Â the defendants participated in a two-day evidentiary hearing regarding a temporary restraining order. That went badly for them; they then tried to appeal that order in state court, and got smacked down. Only then did they try to remove to federal court. The court inÂ RoseÂ explainedÂ that “a fairly bright line exist[s] between submitting a case for decision on its merits, and engaging in preliminary proceedings relating to temporary restraining orders or preliminary injunctive relief… The latter [is] not a conscious choice to submit the merits of a controversy to a state court for determination.”Â Id.Â at 923. Translation: showing up to talk about a TRO does not waive your right to remove to federal court.
That doesn’t look good for EC.
(As a sidenote for those reading this without legal training: if I sayÂ Rose, italicized, I refer to the case. If I sayÂ Rose, not-italicized, I’m referring to the plaintiff in that case, who was Pete Rose, the baseball player. Thank you, baseball–now let’s get back to Ellora’s Cave.)
EC’s lawyer valiantly tries to save the day with this argument:
Unlike Rose, here the Defendants expressly, and unequivocally, requested in a motion and agreed order a â€œfull airing of the issues at a preliminary injunctionâ€ before the State court. This was no simple request for a continuance; Defendants explicitly requested to take full advantage of the State court proceedings for an adjudication on the merits before seeking removal to this Court.
The problem EC hasÂ is that in Rose,Â the court found that the defendants had not waived their right of removal. There, the plaintiffs actually had a full airing of the issues at a preliminary injunction hearing–which surely is about ten times farther along the path of availing themselves of the state court than merelyÂ agreeing to such a hearing. It’s utterly absurd to imagineÂ that DA agreed to scheduleÂ a preliminary injunction and so bound themselves to the state court’s decision on the merits, but in Rose, the defendants showed up to a hearing on the preliminary injunctionÂ but never agreed to that hearing.
While counsel tries to point out that DA has made discovery attempts in state court (this affidavit by the lawyer; these emails back and forth between counsel for the parties, as well as a subpoena issued to Google in state court), the emails cited clearly state that the transcripts are “for the hearing” on the preliminary injunction, and we already know that “discovery . . .Â conductedÂ . . .Â for purposes of the preliminary injunction hearing,” Rose at 923,Â will not bar removal to federal court.
I could say a lot more about this, but it wouldn’t really change what I think. I don’t even think this one is remotely close, and I say that without having the benefit of hearing from defendants in response.
My conclusion: EC isn’t going to try to contest the jurisdictional amount, this motion to remand will almost certainly be denied, and we are in federal court from here on out.
Huzzah, federal court!
What to expect next: DA/Jane will almost certainly file a memorandum opposing a remand. The court will decide if it wants to hold a hearing on this or simply decide on its own, and we should get a decision from the court. That decision will almost certainly seal off this thread once and for all, and we can move on to the many, many other issues.
I have not talked about threads A or D recently, even though we have an answer from Dear AuthorÂ (in thread A) and a counterclaim from Dear Author (which is the start of thread D). The reason I have not done this yet is that the answer is from Dear Author alone, and not from Jane in her personal capacity. Some things Jane will say in her answer will be duplicative. Some things she says will, I suspect, not beÂ (which is why they didn’t file together). I’m waiting to have all things in hand before saying what I think. But if you want to come to your own conclusions, the answer from Dear Author is here, and the counter claim is here.
One last thing:Â I said in this post that Ellora’s Cave could not win this without spending at least $75,000. If you can’t tell from the litigation thus far, I’m going to up that amount to at least $150,000. Notice that of the things I listed that EC would have to do to win in my prior post we’ve now added at least 10 items–include fighting removal to federal court, joinder motions, motions to dismiss based on the CDA… So the irrationality of Ellora’s Cave runs, at this point, to 300 BookBub ads. And it’s been less than 30 days. Just keep that in mind.
EC won’t get to trial–the most they can hope for is a blaze of glory at summary judgment–but that’s what is on the line at this point. So my question from before stands: Why is Tina Engler economically irrational?