Dear Author has filed their opposition to Ellora’s Cave’s motion to remand to state court, and there’s actually quite a bit of information contained in the short opposition to remand and the exhibits.
As a reminder, at this point in the litigation there are four basic threads:
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.
In this post, I will discuss thread B (the motion for the TRO) and thread C (the removal to federal court), but not in that order.
Thread C: the removal of the case to federal court.
Where we are: On October 20th, Dear Author removed this case to federal court. On October 24th, Ellora’s Cave moved to remand the matter to state court. Now, Dear Author has filed their opposition to that motion.
The opposition to the motion is trying to do two things. First, and most obviously, it’s a response to Ellora’s Cave’s motion to remand which was filed on October 24th. Second, Dear Author uses this motion to contend that Ellora’s Cave is not acting in good faith.
There’s a lot going on in this motion, so I’m going to break it down even further.
Is the motion going to succeed?
Out of the gate, Dear Author contends: “This is a frivolous contention, which if accepted, would run counter to all precedent, and particularly against Sixth Circuit law.”
This is a really strong statement. “Frivolous” is a word with particular legal meaning. I said in discussing Ellora’s Cave’s motion to remand that I didn’t think the question was even close. “Frivolous” goes farther than that. It means “completely without support”–and if a judge finds a motion to be frivolous, this can result in sanctions. See F.R.C.P. Rule 11(b)(2) and 11(c).
There is some additional description of the history of this case to establish that Dear Author removed the case as swiftly as possible and participated in the suit at the state level exactly as much as they needed to do so. But basically, nothing here should surprise anyone who read my last post.
An oversimplified recap of that post: Ellora’s Cave is claiming that Dear Author availed themselves of the state courts too much, and so are stuck with the state court. But EC cited a case that said, in essence “10 is not too much.” Dear Author’s participation at the state court level is at 2. Ellora’s Cave’s explanation was, basically, “2 is a different number than 10.”
But if 10 is not too much, 2 is definitely also not too much, and their contention that 2 is greater than 10 does seem…pretty frivolous. On the frivolity scale, it’s not as bad as claiming that the personal income tax is unconstitutional, but it’s pretty bad.
Likely result: I judge Ellora’s Cave’s likelihood of success on this motion to be zero. Not close to zero; actually zero. Randazza could have filed a short memo with the legal equivalent of, “Are you shitting me?” and the court would have ruled in his favor.
My level of expertise: Civ Pro, not my wheelhouse, but this seems pretty cut and dry and I’m very confident.
Will the judge find this motion to be frivolous?
If this were just a case of “oops, I screwed up, I should have read that case law more thoroughly,” a judge is less likely to give a smack-down. Honest mistakes are forgivable. So Randazza also tries to demonstrate that this motion was not just filed because someone made an honest mistake.
Specifically, he wants to establish a motive for them to file the remand motion. That is discussed on pages 5-6 of the opposition.
In this case, he claims that this remand motion was filed solely to delay the hearing on the TRO–and Randazza states that they won’t seek attorneys’ fees and court costs for filing this frivolous motion, so long as Ellora’s Cave doesn’t monkey around with the TRO hearing. (More on this later.)
I don’t know if the judge will actually call the conduct here frivolous. There are reasons why judges don’t always call things frivolous–for one, there are potential sanctions to the attorney for filing a frivolous motion. Some judges are loathe to label conduct as frivolous. Others do so quite willingly.
We’re going to find out fairly soon how much tolerance the judge in this case has.
Establishing a pattern and practice of plaintiffs’ behavior
Finally, there are multiple places in the opposition where Randazza casts EC’s behavior in an extremely unfavorable light.
At its core, this is a SLAPP suit – a suit devoid of merit, filed for an improper purpose. Plaintiffs have made no secret of the fact that it is their intention to make this case more inefficient and expensive than necessary, in order to achieve the litigation’s true purpose – to punish the defendants through the stress and expense of a lawsuit and to frighten anyone else who may dare to speak the unflattering truth about Ellora’s Cave — all of this despite the fact that there is nothing remotely actionable in the Article at issue in this case. This is a classic SLAPP suit, and this kind of motion practice is highly symptomatic of one.
There is also this footnote:
 On 7 October, an email was sent to at least one of Ms. [Litte]’s supervisors. On 14 October that same email was forwarded to the entire department within which Ms. [Litte] works. This is consistent with prior actions by directors of Ellora’s Cave. Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case. Therefore, sending this subpoena on short notice was of great importance. Since the Defense addressed this with Plaintiff’s counsel, these actions have waned.
This footnote does not squarely claim that Ellora’s Cave or its directors sent the emails. It says the emails were sent–that’s the use of the passive voice to obscure the actors–and that such an action would be consistent with things that the directors of Ellora’s Cave have done before. Randazza is usually very good about not unnecessarily using the passive voice, so my guess is that DA does not yet have firm proof of who sent that email. In order to know that, they’ll need a subpoena from Google, and they may well need a subpoena from the ISP that Google gives them once they get an answer.
(As a note, I will be consistently replacing Jane’s real name with her pseudonym. We all know her as Jane Litte so let’s call her that.)
This brings me to…
Thread B. The TRO hearing.
Where we are: When EC initially filed their suit, they moved for a temporary restraining order. There was an initial hearing on September 30th, where nothing was decided. A later hearing was scheduled for October 27th in state court. When Dear Author removed the case to federal court, the federal judge announced on October 21st that he would hold a hearing on the TRO on October 29th. On October 24th, Ellora’s Cave asked to continue that hearing.
The last time I talked about this, I said that motions to continue because of schedule conflicts were fairly routine, and that Ellora’s Cave’s request to continue would probably be granted.
(Let me pause this discussion to deliver a lengthy mea culpa. I made a handful of mistakes when discussing this motion last time. People make fun of lawyers because the answer to every question is always “it depends.” But this illustrates why we are supposed to do that. What I should have said last time was something more like this: “Motions to continue are often granted so long as there is no underlying hanky-panky and the parties are acting in good faith.”
Here are the mistakes I made:
First, I assumed there would be no assertions of hanky-panky. What was I thinking? Hanky-panky should have been presumed.
Second, I should have looked at the timeline with a more jaundiced eye. The hearing was scheduled for six business days in the future. Randazza had to fly across the country for said hearing. So when EC waited three business days to ask to move, I should have at least tilted my head. But this didn’t register in my head as egregious. I have forgotten what it is like to have…a schedule for anything (literally: I have one event on my calendar for next week, and it’s a restaurant reservation) (no, my life is not as fun and carefree as that makes it sound) (it really just means I always feel guilty for not doing more work).
Third, I need to cop to a general inexperience with trials, period. (My trial level inexperience will strike again, I’m sure). In my experience, district courts have existed solely to create a record of reviewable decisions for appellate courts. I’ve observed exactly one trial case close up, when the court of appeals judge I was working for sat by designation, and even then we only picked it up because the judge who’d been hearing motions/discovery before had a scheduling conflict. So. I have zero experience with scheduling questions.
In short, I should have seen more to this motion than I did. I didn’t. From here on out, I’ll try to remember to signpost how firmly I feel something is within my direct expertise so you can judge for yourself how likely I am to get it right.
Here ends the mea culpa–back to the discussion of the motion.)
If you want to understand what is going on here, you should read Randazza’s Exhibit B to the latest filing.
Here’s how the schedule went down, according to Randazza’s email to opposing counsel and the opposition to the remand motion:
- 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 continue the TRO hearing the next day.
- The next day, October 23rd, no motion to continue was filed, and Randazza bought flights and hotel accomodation for the 29th.
- On October 24th, the motion to continue was filed.
- Shortly after that was filed, Randazza sent the email that is the subject of this exhibit.
- Sometime after that–probably later on October 24th–the lawyers spoke over the phone about this. According to Randazza: “The greater underlying reason for this motion came to light during conferences to obviate the need for this opposition – when Plaintiffs noted that they wished to buy time in order to file an amended motion for injunctive relief.” Opposition at 6. During that phone conversation, counsel for Ellora’s Cave apparently said that it was considering withdrawing its request for a TRO, because reasons.
In other words, Randazza claims that the only reason Ellora’s Cave filed a motion to remand was so that they could argue there was a reason to bump the TRO hearing, which it does not want to happen. And the reason, Randazza contends, they want to continue the TRO hearing is that they filed a half-assed motion in support of a TRO with a bare affidavit. Now that Dear Author has filed a full-fledged opposition to the TRO, with exhibits and so forth, they want to withdraw their prior opposition and try again.
Remember how I said that a TRO hearing can function as something of a mini-trial on the merits? Randazza claims that Ellora’s Cave doesn’t want that to happen: “The Motion for Injunctive Relief will, no matter its result, help advance this matter to an efficient and expeditious termination. But, the Defendants do not want an ‘efficient and expeditious’ termination. In fact, Plaintiffs have threatened to simply withdraw the motion for injunctive relief, now that it has been fully briefed, preparations made, and travel arrangements purchased. This is not because they no longer want the relief, but because they are aware that an order narrowing the issues in the litigation will be detrimental to the goal of financial attrition through protracted and multiplied proceedings.” Opposition at 6-7.
Will Ellora’s Cave get smacked down at this point? We have not heard Ellora’s Cave’s side of things here, and I doubt they will say, “Yes, we agree with everything Randazza says. We have invited Hank and Pank over for tea, and we need to continue the hearing until they will arrive.” At this point, I’m not competent to judge.
I doubt I’ll be able to guess even if we do hear their point of view. Courts don’t like having to babysit parties every step of the way. Judges who see this kind of thing starting will glare sternly and tell remind lawyers that they’re officers of the court and they need to behave like motherfucking adults. Sometimes that’s all that is needed to make things start ticking along as they should.
But I’ve learned my lesson. I’m not going to presume a lack of hanky-panky from here on out. And I suspect that Mr. Hank and Ms. Pank will meet for biscuits on a regular basis.