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 ECÂ 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.”
Yep, this is going to be a pain in several people’s behind before this is all over. SMH once again at the stupidity of this entire undertaking. Surely EC has a better use of their time and cash then tilting at imaginary windmills?
In D, isn’t is DA’s counterclaim against EC for abuse of process?
@Kaetrin: I do believe you are correct, Kaetrin…
@azteclady: Sorry, the comment editor is wonky for me. Kaetrin, I’m sorry, thread D changes tenor two posts ago, when EC in response to DA’s claim that EC is abusing the process.
Whoops. Thanks everyone. I’ve updated.
Toward the end of your section on the removal of the case you wrote, “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.”
Back in September, TE/JB openly protested on EC’s site (or was it her blog?) what she felt was direct personal attack. As an observer, I’ve seen nothing said by DA in response. However, there’s been plenty of cross-sniping by a variety of parties, some of whom may or may not be affiliated with EC.
Is any of that likely to splash back on DA? Surely Jane and DA can’t be held accountable for the posts of her fans, devoted though they may be?
@Mzcue:
I was referring to the cross-sniping of the parties with regards to the frivolousness of the remand motion. I doubt the judge or the judge’s clerks will be aware of internet posts unless and until a party draws them to their attention. He has better things to do.
“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.”
Well, it does happen in real life, as we both know. I think it’s less that the person in question ‘doesn’t like having money’ and more that he/she thinks, ‘Gee, maybe the judge doesn’t know the nuances of the law like my lawyer & I do, so let me give him cause to reconsider. Because I can’t possibly be wrong.’
I know this is probably one of those stupid questions, but I’m going to ask it anyway…
Way back when the suit was first filed, I know there was an allegation of defamation (I think that’s the correct term), and I thought EC wanted the original article removed from DA’s website.. I mean, that’s what I’d be wanting. Is that true? I assumed that was what the TRO covered.
I have a VERY strong feeling I need to go back to the beginning and get my “101 EC vs DA” lesson.
Thank you for the update.
Thank you for the update. It’s so nice that one of my favorite authors is an ace lawyer, and I (a lawyer but not an ace) don’t have to try to figure out all of this by myself.
I chortled, or maybe even cackled, reading this. Thank you for the update!
I’ve watched the developments about the lawsuit with interest.
The problem for me was that I couldn’t really understand why the lawsuit was brought. Today the whole lawsuit became a little more understandable to me.
As I understand it, the “nut” on twitter claims that the owners of EC are negotiating to have their own imprint under another publishing house. By bringing the lawsuit they thought that the DA post would be taken down quickly. I doubt they ever thought that DA would have the resources to fight. if the post was taken down without mention of the lawsuit it might have been thought it was removed because it was not factually true and would be quickly forgotten – then the owners of EC could negotiate new contracts with another publishing house without many people being any wiser about the problems at EC.
Maybe another fundraiser is needed to have an audit of EC.
@Churny: Um…
If you take anything the Nutter says at truth, you are on really shaky ground.
However, it looks to me as if talk of a potential merger/acquisition was brought up, by the Nutter, to create yet another ‘plausible’ reason for things people connected to Ellora’s Cave may say and do. Things that, actually, make no sense.
As for fundraising an audit of Ellora’s Cave books, you can find out more about this idea by reading this post.
@Churny:
Never believe the twitter nut. Come on. If there were actually a merger (a MERGER? Think about how impossible this is. All the Big 5 are owned by billion-dollar enterprises like Bertelsmann or Rupert Murdoch–why on earth would they MERGE with a tiny company like Ellora’s Cave? That makes literally zero sense. It’s like a mouse moving in with a beluga whale), the due diligence beforehand would be a little more heavy than reading a blog post or two. It would involve a complete floor-to-ceiling audit with open books.
This is a rambling of someone who has literally no idea how involved a merger (or an acquisition) actually is. None. The Dear Author blog post is completely irrelevant to an interested party. You don’t merge with (or acquire) someone without getting underneath the hood and poking around. It’s not like buying an apple.
This is a pretty good checklist of what gets compiled during M&A. http://www.accountingtools.com/due-diligence-checklist
On that list is not “read a blog post and then say ‘to hell with due diligence’.”
TE canonically thinks that tax liens just happen and are no big deal. Based on that, I have serious doubts about whether she is capable of compiling the information necessary to sell the company to anyone who understands how to buy.