EC on abuse of process counterclaim #notchilled

As a reminder, this post is my own opinion and not that of any other organization. Longer disclaimer here.

Right now in the litigation, we have four major 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 EC against DA alleging abuse of process.

This post discusses Thread D. Ellora’s Cave has filed its reply to DA’s abuse of process counterclaim. You can read read the filing here.

This is structured much the same way as DA’s answer. In order to understand what they’re denying and what they’re admitting, just go paragraph by paragraph, comparing to DA’s counterclaim. You’re not going to find anything surprising in this if you do. Ellora’s Cave admits that it is incorporated in Ohio and does business in Summit County, and denies that it filed the litigation for the purposes of silencing and intimidating critics. Yawn; everyone expected that.

The only part of marginal interest is the defenses, so those who want to understand what they’re saying can go below the jump.

EC lists five defenses.

1. Failure to state a claim upon which relief can be granted.

I talked about the standard for failure to state a claim in my last post. A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The elements of a claim of abuse of process in Ohio are: (1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process.

In order for the counterclaim to be dismissed for failure to state a claim, it must lack factual allegations that would support the above elements.

The counterclaim states:

  1. On September 26, 2014, Ellora and Jasmine filed an action against Dear Author and co-Defendant Lampe for injunctive relief, libel, and libel per se in the Court of Common Pleas, Summit County, Ohio, Case No. CV-2014- 09-4421 (the “State Court Action”).

That looks like a factual allegation that demonstrates that a legal proceeding was set in motion in proper form and with probable cause.

10. Knowing that their claims were baseless, Ellora and Jasmine sued Dear Author in an attempt to silence criticisms of their business practices, and to intimidate other authors, editors, and cover artists with the purpose of deterring them from attempting to reclaim monies owed them by Ellora and Jasmine.

That looks like a factual allegation that would support the claim that the proceeding has been perverted to attempt to accomplish an ulterior purpose.

12. This continued litigation has caused and will continue to cause Dear Author significant financial harm in the form of attorneys’ fees and costs associated with the ongoing litigation.

And that looks like a factual allegation from which one can conclude that direct damage has resulted.

These factual allegations may not be proven later in the litigation–we’ll have to wait to find this out–but I doubt this claim will be dismissed for failure to state a claim unless there is something about the tort of abuse of process that I’m missing. Always a possibility.

2. Jurisdiction and venue are improper in this court.

This is thread C: EC has moved to remand to state court. Once the remand motion is settled, this defense will go poof.

3. Defendant’s counterclaims are barred by the doctrines of “unclean hands” and waiver and estoppel.

I’m going to break this down into a discussion first of the unclean hands doctrine, and then waiver and estoppel.

Unclean hands

I need to give you a little historical grounding to fully understand the unclean hands doctrine and what I think about this defense. Once upon a time, back in the days that I write romance novels about (well, mostly; it depends on the book, actually), there were two separate courts (there were more courts than that, but let’s just concern ourselves with the two for now). There were courts of law and courts of equity. This is going to be overly simplistic, but basically, courts of law and courts of equity had different powers. A court of law could order you to pay someone money you owed. Courts of equity were concerned with acts of fundamental fairness, and were the ones who would order nonmonetary acts that would make things more fair.

A note on legal shorthand: You would say that an action in a court of law was seeking a remedy “at law” or “a legal remedy,” and that an action in a court of equity was seeking a remedy “at equity” or “an equitable remedy.”

So, for instance, imagine you had a contract with your neighbor that they would sell you their fine pasture land for 20 pounds. You paid them 20 pounds, but they didn’t sign over the property deed. What do you do?

Well, you could go to a court of law and demand that they give you your money back, plus any profits you’d have made on the land. Or you could go to a court of equity and demand that they hand over the property deed. You couldn’t ask for money and your property deed, even if you’d lost money not being able to raise cows on the land due to your neighbor’s delay, because you had to choose one court or the other.

A sense of fairness pervaded all legal proceedings held in a court of equity. So if you went to a court of equity and said, “I demand that my neighbor hand over the property deed!” your neighbor might respond, “I was going to, but you threatened to kill me if I came near you, and I’ve been too scared to give it to you.”

That’s a defense of “unclean hands.” The basic idea behind it is that a court of equity is concerned with fairness, and if bad things happen to you because you were a jerk in the first place, you deserve what you get. Or, in other words: “The doctrine of unclean hands requires a showing that the party seeking relief engaged in reprehensible conduct with respect to the subject matter of the action.” Coughlin v. Summit County Board of Elections, 136 Ohio St.3d 371 (Ohio 2013).

So in order to prevail with this defense, Ellora’s Cave will have to show that Dear Author “engaged in reprehensible conduct.”

But before we get to that point, there’s a threshold inquiry. I didn’t just tell you all that history just to dump the unclean hands definition out there and run away. The defense of “unclean hands” originates from equitable principles and was historically used in actions at equity. But in the mid-nineteenth century, courts started merging as courts of law and equity. That’s why Ellora’s Cave could ask the state court both for a temporary injunction against Dear Author as well as for money damages–because today, our courts are both courts of equity and courts of law, and so you can ask the court to exercise its powers both as a court of law (the money damages) and a court of equity (the injunction).

Most of the time, modern lawyers don’t have to remember that once upon a time, courts of law and courts of equity were not the same. And some modern lawyers do not, in fact, remember this. But it does occasionally matter, because the merger of law and equity courts was not complete. Sometimes, equitable defenses are only available as a defense to claims made at equity, and not for claims made at law.

So what remedy does Dear Author request?

WHEREFORE, counterclaimant Dear Author respectfully requests the following relief:

  1. Compensatory damages in excess of $75,000;
  2. Punitive damages in excess of $225,000, or three times the amount of compensatory damages;
  3. Actual damages to fully reimburse Dear Author for the attorneys’ fees and costs incurred in litigation against the causes of action in the State Court Action;
  4. Any and all attorneys’ fees and costs associated with the litigation of this countersuit; and
  5. Any other relief that this Honorable Court deems necessary, just, and proper.

These are by and large requests for money damages–that is, for remedies at law, not at equity. The only one that is arguably a remedy at equity is #5. In other words, Ellora’s Cave is using an equitable defense as a shield against a remedy at law.

So before we ask if Dear Author has unclean hands, there’s a threshold question: Can equitable defenses shield Ellora’s Cave from a remedy at law?

There’s actually a lengthy academic paper detailing where unclean hands can be used to shield against remedies at law, and it varies from state to state.

Unluckily for Ellora’s Cave, Ohio appears to have a clear rule in place that the unclean hands defense is not available for remedies at law: “The general rule is that actions for monetary relief are legal, not equitable. In this case, plaintiff has brought suit for monetary damages under the legal theory of breach of contract. Thus, the equitable jurisdiction of this court has not been invoked. Defendant’s reliance upon the equitable defense is, therefore, misplaced.” O’Brien v. Ohio State University, 139 Ohio Misc.2d 36 (Ct. Claims Ohio, 2006). (Please excuse my crap citations but I have no idea where my Bluebook is.)

So regardless of the merits of this particular defense, it appears that the defense is simply not available under these circumstances.

As a note, I’m not a huge torts person, and I’m not willing to go to the mat for remedy questions except in contract law, so it’s possible I’ve messed up something somewhere. But I don’t think that’s hugely likely.

For those who are confused by the law/equity distinction (and don’t feel badly if that is you because most law students find this a very confusing concept), imagine that we are having a fight and the combatants can use both psychic and physical weapons. If someone uses a sword, you need to block it with a wooden shield. If someone threatens you with a psychic blast, you need to use a psychic shield.

Ellora’s Cave just deployed a psychic shield to block a hit from a physical sword. It doesn’t matter how good the psychic shield is. It may be impenetrable to all psychic attacks. It may be shiny and perfect, but it’s still not going to stop the steel blade that’s about to cleave them in two.

Waiver and estoppel

Waiver and estoppel are related concepts so I’ll cover them together.

Waiver is usually divided into express or implied waiver. Express waiver is one where someone has explicitly agreed to something. You’ve probably seen tons of waivers. For instance, Microsoft’s Terms & Conditions state: “LIMITATION ON AND EXCLUSION OF DAMAGES. YOU CAN RECOVER FROM MICROSOFT AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO THE AMOUNT YOU PAID FOR THE SOFTWARE. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.” (Shouty caps theirs).

That’s an express waiver. It says outright that if their software fails and you lose the book that you just wrote as a result, you can’t sue them for the six months of work that you lost because of their buggy software. (But you won’t let that happen because you back up your work, right? Right?)

There’s also implied waiver. We saw implied waiver being argued in Thread C regarding the remand. Ellora’s Cave claims that because Dear Author agreed to a TRO hearing in state court, one can imply that they intended to waive their right to litigate in federal court. Implied waiver basically says that the person’s actions evidence an agreement to waive a claim or a right.

Finally, there’s estoppel. Estoppel basically says, “Normally, you’d have a right to do this thing, but you did something that means you can’t.”

As an example of estoppel: Imagine that you have a statute of limitations that says that you have three years to bring a claim. Four years ago, your financial advisor robbed you of $10,000. Since then, he’s been doctoring the bank statements that he sends to you so you don’t realize that he took the money. The financial advisor could be estopped from asserting the statute of limitations if you sued him, since the reason you didn’t bring the action was because of his additional actions.

It should be obvious that there’s no express waiver of abuse of process here. I can’t imagine a circumstance under which Dear Author and Ellora’s Cave would have agreed that Dear Author wouldn’t sue for abuse of process. Maybe Jane bought something from Ellora’s Cave, but I seriously doubt that such a thing exists, and if it does, good luck enforcing a waiver of liability that covers intentional torts completely unrelated to the product attached to the T&C.

I’m kind of at a loss as to how EC would develop either an implied waiver or an estoppel claim. I’m trying to imagine conduct that a court would ever say allows another party to abuse the legal system… and…no, I have a good imagination but it’s just not that good. It’s already difficult to waive liability for intentional torts. (An “intentional tort” is a bad thing that you do on purpose, as compared to bad things you let happen by accident. You can waive liability for accidents, but stuff that you intend to do is treated differently. For instance, imagine you have a contract that says, “I’ll give you $20,000 but if you don’t pay me back by Thursday at 3 PM, I will murder you.” The court is never going to say, when your family brings a wrongful death suit, that you waived the right not to be murdered. In general, courts don’t want to make purposeful wrongdoing easier.)

But this is not just an intentional tort; it’s an intentional tort that says that people are misusing the power of the government. I can’t imagine a circumstance under which a court would say, “Your conduct means that you have lost the right to not have the legal system perverted against you for improper purposes.” That seems like a fundamental due process problem for the person who would be barred from claiming the benefit of the legal system, and on the court’s side of things, courts don’t like being told that they have to be someone else’s bitch.

It could just be that I’m not creative enough to come up with an argument. It’s possible. Torts is not my bag. I could be completely wrong, and I welcome corrections or discussion.

Let’s just say I’m really curious to see if Ellora’s Cave will develop this defense into something that has marginal coherence. But I’m left with the sneaking suspicion that defense #3 is just word salad, defense edition. These are things that Ellora’s Cave threw out to preserve their right to later develop these defenses, but I’m not convinced they’ve given these defenses much consideration or thought. I’d be surprised if these actually show up as players in the litigation.

4. Defendant’s counterclaim is frivolous and without merit and is made for the improper purposes of (a) promoting vexatious litigation and (b) bolstering the jurisdiction of this court, thereby entitling Plaintiffs to attorney fees.

I’ve said that I think it’ll be hard to prove the counterclaim–proving that Ellora’s Cave was motivated by intimidation and silencing is pretty hard. But that doesn’t make it frivolous; it just makes it hard to prove.

(For what it’s worth, I think it’s more likely that Dear Author will find proof that Ellora’s Cave acted to pervert the legal process than that Ellora’s Cave will find proof that Dear Author acted with actual malice. That’s based on a purely utilitarian basis: Even assuming that both are bad actors (which I don’t think we can assume in either case), Jane is legally savvy enough to know the standard for defamation and to know that her personal emails can be discovered, and I doubt she’s stupid enough to generate discoverable evidence inculpating herself. I’m not convinced the same can be said for the Ellora’s Cave principals.)

I also have to admit that I do not understand how the counterclaim could possibly bolster the jurisdiction of the court. If the amount in controversy in the original suit was under $75,000, that might be the case, but EC doesn’t seem to have taken that tack. The counterclaim is mentioned not once in the remand discussion. How on earth could it have anything to do with jurisdiction?

5. Plaintiffs reserve the right to raise additional defenses as discovery progresses.

That one’s self-evident.

 

21 thoughts on “EC on abuse of process counterclaim #notchilled”

  1. Courtney, does Judge Adams have to rule on remand after Jasmine-Jade submits its answer? Or can he do that before they file?

  3. I was wondering, because on the first page of the filing, only Ellora’s Cave and Dear Author are *specifically* mentioned, although I guess the “et al” encompasses Jasmine-Jade and Jane?

  4. @Question:

    Yes, that’s the et al. The heading just tells the court what case this is. If you look to the side it says it’s “Plaintiffs’s” which is plural, and then the first line says “NOW COME Plaintiffs…”

    Whereas Defendant is used in the singular since it’s only DA’s counterclaim.

  5. I have been following along since the first day news broke that EC had filed a lawsuit against Dear Author for having the audacity to connect the dots and come up with an unflattering conclusion about the state of the health of EC’s business. I failed to understand what possible argument(s) could be made that an article that appears to be well researched, impeccably sourced and logical in its conclusions could be considered libel, particularly when actual malice would have to be proven. Almost 6 weeks later I am still baffled.

    My question is this. If I, as a layperson can understand the issues and recognize that EC will never meet the burden of proof required to prevail why does the judicial system allow all of the resources of the court & the defendent to be wasted. If there were material facts or issues of legal preceedent in question I might understand all the back and forth and base covering but this all appears to be so cut and dried. At what point in the process can the judge say,” I’ve heard enough and I don’t like what I am hearing? Go forth and stop abusing the legal system.”. Little Peanut tried to claim that the case had to have merit because the judge had not dismissed the case outright, yet. However, after going back to the first documents and rereading forward, I found DA’s request for removal to Federal Court, the request to refuse the TRO, and the filing of the counter suit with the associated request to join TE/JB as a party to the suit but I don’t think the Defense has actually requested an outright dismissal yet. Am I missing something blatant or have we just not reached the point where those requests are considered.

    I need to just block Lil’ Peanut but I keep waiting for them to get some small thing right. So far, the depth and breath of their faulty logic has been awe inspiring. I mean I would love to have such unshakable belief that the mere act of stringing a series of words in a common language together grants them relevancy even if the context is gibberish. So far today I believe they have implied that they have some sort of legal background and/or career in publishing with either Harper-Collins or Avon. something that I am sure would come to quite a surprise to their HR department.

  6. http://lawprofessors.typepad.com/whitecollarcrime_blog/2013/11/sixth-circuit-vindicates-assistant-federal-public-defender-debra-migdal.html

    I found this very interesting. It suggests that the judge has a low tolerance for bullcrap — and with the weakness of EC’s arguments, their lawyer could easily get sanctioned in this courtroom.

    Monday, November 18, 2013
    Sixth Circuit Vindicates Assistant Federal Public Defender Debra Migdal.
    By Solomon Wisenberg Share
    How many federal appellate opinions begin like this?
    “An attorney’s reputation is her most valuable possession. It forms the basis for her peers’ view of her and plays an important role-often a determinative one-in how she advances in her career. This case began with a government attorney’s unauthorized filing of a motion for sanctions against Debra K. Migdal, an attorney who has served as an Assistant Federal Public Defender for nearly 25 years. It quickly took on a life of its own, resulting in two district-court orders strongly, publicly, and, we conclude, erroneously reprimanding Migdal. Because the record does not support any basis for these orders, we VACATE the sections of the first order pertaining to sanctions, REVERSE the second order in its entirety, and DISMISS the sanctions proceeding against Migdal.”
    And how many of them end like this?
    “This opinion closes the book on a regrettable chapter in Debra Migdal’s career, clears her of all claims that her conduct in this matter was sanctionable, and removes any taint of public censure on her reputation.”
    As anyone who practices criminal law in the federal court system knows, different districts, and sometimes different judges within a district, have different rules, formal and/or informal, for the issuance of subpoenas demanding early document production pursuant to Fed. R. Crim. Proc. 17(c). Some districts allow prosecutors and defense attorneys to issue the subpoenas, and examine documents, on their own. Other districts require a motion and court order. (Of course, the playing field is uneven, because the prosecution typically has the evidence it needs well before trial through the use of grand jury subpoenas.)
    In 2011 Debra Migdal was an Assistant Federal Public Defender in the Northern District of Ohio handling a case in front of U.S. District Judge John R. Adams. At the time, neither the Northern District of Ohio nor Adams had any formal policy regarding the issuance of Rule 17(c) subpoenas. Migdal issued two Rule 17(c) subpoenas on her own, one of which was sent to the custodian of records at the U.S. Border Control, calling for the early production of materials in Judge Adam’s court, but on a day she designated that was prior to a scheduled court date. Two previous district court opinions in the Northern District, neither of which were written by Judge Adams, had come to opposite conclusions about the propriety of issuing such subpoenas absent the court’s permission. Migdal was unaware of the opinion holding that a court order is necessary.
    Migdal used Administrative Office of the U.S. Courts Form AO 89, which commands both the appearance and testimony of the witness and, if necessary, the production of documents. In other words, unless the issuer crosses out the part of the authorized pre-printed form calling on the witness to testify, he/she is always commanded to appear and testify, even though in many cases the issuing party is only interested in obtaining documents. By way of contrast, on the federal civil side, there are two authorized subpoena forms, one calling for documents only and one calling for witness testimony.
    AUSA Gregory Sasse told the Border Patrol Agent to ignore the subpoena. Sasse then moved to quash the subpoena and asked the court to impose whatever sanctions it deemed appropriate. Sasse wasn’t authorized to move for sanctions and his superiors later withdrew this request. But Judge Adams was clearly not happy with Migdal. He held two hearings and publicly sanctioned Migdal under 28 U.S.C. Section 1927 and his inherent authority.
    Section 1927 reads as follows:
    “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
    The Sixth Circuit, noting that nothing whatsoever in the statute’s language authorizes the imposition of non-monetary sanctions, ruled that Judge Adams abused his discretion in sanctioning Migdal under 1927.
    The Sixth Circuit then rejected the three rationales Judge Adams relied on for sanctioning Migdal pursuant to his inherent authority. (Any sanctions against Migdal required a showing of bad faith on her part.)
    1. Adams had ruled that a criminal defendant is entitled to materials under Rule 17(c) “only after requesting-and not getting-the necessary items from the government via Rule 16 discovery.” Incredibly, he believed he had the inherent authority to sanction Migdal for failing to follow this protocol. But as the Sixth Circuit pointed out, no such protocol exists under Rules 16 and 17.
    2. Adams had ruled that Migdal violated her duty of candor to to the court by commanding production at a hearing that had not been scheduled or requested. (He referred to it as a “fabricated” hearing.) Migdal acknowledged that the subpoenas were defective in this regard, apologized to the court, and argued that she had not acted in bad faith. The Sixth Circuit agreed, emphasizing that: a) AO Form 89 lacks clarity; b) Migdal called for production in Judge Adams’ courtroom, so she was obviously not trying to hide anything from the court; c) the longstanding practice in Migdal’s office and in many Federal Public Defender Offices, was to issue Rule 17(c) subpoenas without prior court approval; and d) Migdal relied on a prior Northern District of Ohio opinion specifically authorizing issuance of Rule 17(c) subpoenas without prior court approval. Judge Adams noted that he preferred the contrary judicial opinion. “But Judge Adams’ inclination to side with one judge’s view over that of another obscures the point that Migdal did not act in bad faith when she hewed to at least one judge’s reading of the controlling rule.”
    3. Adams had ruled that Migdal “utterly disregarded Rule 17(c)’s implicit requirement that the court must approve and order early-production subpoenas.” (internal quotations omitted). The Sixth Circuit carefully pointed out that reasonable people could disagree on this point, as evidenced by the conflicting district court opinions. That Migdal chose to take a view of Rule 17(c) at odds with Judge Adams’ position, at a time when there was no clear controlling authority, could hardly amount to bad faith.
    Throughout Judge Jane Stranch’s opinion, for a unanimous Sixth Circuit panel, there runs a tone of incredulity at Judge Adams’ actions in “branding a blemish on Migdal’s reputation.” It should never have happened. It should never happen again.
    Here is the Sixth Circuit Migdal Vindication Opinion.
    Congratulations to AFPD Migdal, by all accounts a fearless and hardworking AFPD. Congratulations to her attorney Greg Poe, of Poe & Burton, who wrote the brief and argued the case.
    (wisenberg)

  8. @ Julaine:

    I realize that the nut has made many wild claims about what has or hasn’t happened. The nut does not appear to understand either publishing or law. I have serious doubts as to whether the nut understands the English language.

    Some general notes: First, the time scale for litigation can be longer than publishing .To put this in context, EC’s case with Chrissy Brashears took three years and, as far as I can tell, didn’t get past the discovery stage. Even the shortest path to a decision is going to take multiple months. With the filing of EC’s replies to DA’s counterclaim, this suit has barely just reached the “Hello” stage. Don’t be shocked that nobody’s said good-bye.

    Second, if you’re wondering “Why hasn’t this lawsuit been dismissed yet?” there is a simple answer. It’s because nobody has yet asked for this lawsuit to be dismissed. Judges do not just dismiss things out of hand; parties have to ask for dismissal. After they ask, they explain why they think it should (or should not) be dismissed with written briefs that usually have a timeline of several weeks in response, and then the judge deliberates over matters and puts out a ruling.

    Third, just so you know, a party asks the judge to do something by making a motion. Right now, there have been four motions made–three by Ellora’s Cave, and one a joint motion.

    Two of those motions are still pending–that would be the motion for the temporary restraining order and the motion for the remand. One motion was granted–EC’s motion to continue the hearing on the TRO (which is why the TRO motion is still pending). One motion was denied–the parties’ joint motion to extend time for filing the pleadings.

    We may not see any additional motions until the judge rules on the remand order.

    What we might see sometime in the next two months:

    1. A ruling from the judge on the remand motion. This will give us some idea as to how he’ll conduct the case based on how he responds to the cross requests for attorneys’ fees.

    What to look for: If the judge intends to sanction a party for bad conduct, you’ll see an order by the judge to show cause why the party should not be sanctioned. Alternately, depending on how other things shake out, DA may move for sanctions under Rule 11 regarding the remand motion.

    2. Some movement with regard to the TRO motion–either a hearing, or a statement from EC that it plans to combine the TRO motion with the hearing, with attendant discussion from either side.

    3. Potentially the first filings on potential motions to dismiss either the lawsuit or the counterclaim. These will probably not be fully briefed until the New Year, even if they’re filed immediately after the judge denies the remand order.

    I would be surprised if we saw much more than this before the end of 2014.

  9. @Julaine: Re: the notchilled troll

    By all means, do block him. It should be evident by now that he has no connection to anyone beyond baiting and pot stirring in the Twitter thread.

    Maybe think of it this way: Ever get a crank telephone call? Would you consider staying on the phone with him for a two hour conversation about whether he’s a legitimate caller or not? When he calls back the next day, would you challenge him for more evidence of whether he had a decent reason to be phoning and breathing at you?

    Every time anyone says, “I don’t think you’re real” to him, it’s like flinging him another fish as a reward. ARGH!

    This guy doesn’t care one iota about being right or wrong. He doesn’t care if you call him stupid. He’s deriving satisfaction from engaging in the back and forth with people who care about Jane, DA and the danger SLAPP suits pose to blogging journalists. He does NOT care about the issues. He’s like a guy in a trench coat whipping out his sad junk for the satisfaction of the shock and annoyance he can cause.

    Sorry, Julaine, I didn’t mean to direct this at you personally, but I also didn’t want to engage with him on the notchilled thread. Remember—the first day he appeared, he thought DA was suing EC. He’s a troll, he’s in it for the contact, and he’ll keep coming back as long as anyone is willing to respond to him.

  10. @ Mzcue

    Isn’t there a mute feature on Twitter? I think I saw Scalzi mention it and say that for him it’s better than blocking because the troll in question isn’t informed that you aren’t listening to them.

  11. @Mzcue: A small point of disagreement: I do not thing the Nut was confused about who sued whom. As far as I can see, the entire point of the Nut’s existence is to smear DA and Jane (hence the repeated doxxing and the calling to “let her employer know”–harassing emails, anyone?) and to scare EC authors and other unpaid contractors into keeping their mouths shut. The over threat, “you too can be sued if you support DA/Jane in any way.” The implicit threat being, “this is an anonymous account where I can out you to *your* employers, family, social circle, etc as a writer/editor/artist for smut.”

    Edited to add: but please, by all means, do *not* engage with it.

  12. Guess it’s a good thing that I edited under my real name, @azteclady — they have nothing, except the money they owe me — to hold over my head. I agree — it is my OPINION (protected speech) that doxxing is the implied threat to EC authors. I will try NOT to engage the Nut, but it’s nearly impossible at times. I still think it’s an EC insider, possibly one of the company’s directors. But that is my OPINION (protected speech.)

    @courtney — any idea how Jane’s defense fund is holding up? Do we need to have another rally for more funds, especially if this goes on as long as you think it might?

  13. @Ex EC editor: I absolutely share your opinion that the Nut is actually one of EC’s directors. It would be absolutely lovely if at some point this was revealed to be the case during the proceedings, would it not? Not that I think it will happen, though.

  14. I absolutely KNOW I shouldn’t engage with Lil’ Peanut. I haven’t blocked him/her because I despise the way they go after anyone new that offers an opinion and may not be aware of how toxic this account has been behaving. I actually have a theory about their identity and no, I don’t think it’s an EC principal but I think they may be related to someone who has a stake in defending EC. No one could actually be that clueless about literally everything. Even broken watches are right 2 times a day and that has surpassed the PNut record as to date.

    Unfortunately EC’s worse enemy is EC and they don’t need friends like Lil’ Peanut.

    Thanks Courtney for confirming that there hadn’t been a motion to dismiss filed with the court. I didn’t think so but with the amount of fairly dense material already generated by this case it would have been easy for me to miss even something obvious. Court documents, filings, pleadings, motions, etc. are certainly not like enjoying a light hearted romp through the adventures of yet another regency rake. I have a feeling that this court case is going to be a long slog. I am sure that EC is going to regret this massive case of pique and long for the good old days when all they had to worry about is their malfunctioning postage meter. It has been a thing of beauty to watch our community come together and support Jane and Dear Author.

  15. @Julaine Please tell me EC didn’t really claim their postage meter was “malfunctioning” all these years…?

  16. “Why else would all those backdated checks arrive in the mail with envelopes devoid of the metered date?”, asked Julaine in her most innocent voice. Then there is the issue of the fact that it can take their mail literally weeks to arrive after they hand it off to the Pony Express rider.

  18. The Pony Express also went bankrupt after 18 months. Granted, part of that was this little thing called the Civil War breaking out, but it wasn’t precisely a great example of a sustainable business model. *retreats back into underground history geek tunnel.*

  21. Courtney, you display impressive patience in explaining the arcane aspects of affirmative defenses, but I have a much simpler perspective after 33 years of litigating.

    I call it the “kitchen sink theory,” and I argue with my partner about it all the time.

    The theory goes that litigators serially list every single affirmative defense that exists in law or equity, whether or not it remotely applies, simply because if they don’t raise it in their answer, it is waived, and they’re practicing defensively to avoid any risk of malpractice. I received an Answer last week that had TWENTY-THREE (so-called) affirmative defenses.

    “Failure to state a claim” is a classic, because although it is stated as an affirmative defense routinely, it is never waived. “Laches” is another ubiquitous and insipid one, virtually consigned to the dustbin of legal antiquity except in the most unusual circumstances.

    On the other hand, sometimes one can use the opportunity of a bogus affirmative defense to send a message to opposing counsel, such as this one, filed in response to a counterclaim:

    “The allegations of the Counterclaim are so devoid of evidentiary support, and so contrary to facts known to [party’s name], that they represent the proffer of deliberate falsehoods to this Court, with knowledge of their falsehood, are wholly insubstantial, frivolous and not advanced in good faith.”

    Alas, the message was lost, as it usually is.

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