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Ellora's Cave: Reply on Opposition to Remand

November 2, 2014 by deirdre 31 Comments

elloras-cave-blog-header
I had some expectations about what the reply would consist of.
tl;dr version: I’m disappointed.

My Take on It

  1. 10/24 (Friday) EC’s lawyer files a motion to punt (remand) the case back to state court relying on Rose v. Giamatti.
  2. The same day, DA’s lawyer shoots an email to EC’s saying, “I’m unsure if you’ve reviewed the case you primarily rely upon, but I believe that Rose v. Giamatti says the exact opposite of what you’ve raised it for.” In other words, Randazza said, basically: “Heads up: brain fart?” Which offered the opportunity for Mastrantonio to fix it.
  3. Not hearing anything back, DA’s lawyer files an opposition on Sunday the 26th, including the email from #2. Which was included to demonstrate several points made, not just that one.
  4. On Monday, 10/27, the judge gave EC/JJ a week to file a response. No evidence the judge had read the underlying paperwork, but it decreases his odds of getting it punted to a higher court if he allows time for Plaintiff to clarify.
  5. EC/JJ filed their response on the 31st. Halloween. Trick or treat. It used the same single case citation.

It’s unusual for a motion to rely on a single case cite, and unusual for both sides to rely on the same single cite.
What I expected EC’s lawyer to do: find some other case cites that also cited Rose v. Giamatti and use some more of his skills to strengthen his narrative. ::cough::
Courtney’s analyzed the underlying issues, and I agree. Especially this part:

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.

Another Issue Here

In the footnote:

Plaintiffs indicated that 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.

I just mention the following and allow you to draw your own conclusions….

  1. Randazza is a noted first amendment attorney.
  2. EC files for a TRO/Preliminary injunction against Dear Author to prevent further postings about EC from DA.
  3. Case law about prior restraint is heavy first amendment case law.
  4. First amendment cases are best heard in federal court (though I’m not sure they’re necessarily federal questions).
  5. EC/JJ wants a remand to state court.
  6. Suddenly the TRO’s urgency has “become attenuated.”

::cough::
Note that the case wasn’t removed because of federal questions, though. It was removed for diversity. Here’s a bit from the UScourts.gov site that explains that (emphasis mine):

A case also may be filed in federal court based on the “diversity of citizenship” of the litigants, such as between citizens of different states, or between United States citizens and those of another country. To ensure fairness to the out-of-state litigant, the Constitution provides that such cases may be heard in a federal court. An important limit to diversity jurisdiction is that only cases involving more than $75,000 in potential damages may be filed in a federal court. Claims below that amount may only be pursued in state court. Moreover, any diversity jurisdiction case, regardless of the amount of money involved, may be brought in a state court rather than a federal court.

This is one case where the defense gets to pick the court, though, because it’s about fairness to them.

Let’s Dig Into Some Older Cases

I wanted to look and see if there were other similar remand cases the federal judge had decided on. “Remand” is a hard word to search on because most federal judges of any tenure have had cases go up on appeal, then be remanded back to their original (federal) court to resume the remainder of the case.
This, however, was a different kind of remand: a case originally filed in state court being removed to federal, then an opposition filed.

22 Exchange LLC v. Exchange Street Associates LLC

Ruling here. Remand was allowed. (Remand ruling took 7 days; attorney’s fees were allowed.)
This situation does not apply in the EC/DA case.
In the case ruled on, a Delaware Plaintiff sued an Ohio Defendant, and the Defendant removed to federal. However, one of the situations where you can’t remove to federal for diversity jurisdiction is if you’re sued in your home state. It’s called the forum defendant rule.
In other words, if Dear Author/Jane Litte had been sued in Iowa where they are based, they wouldn’t have been able to remove to federal. However, that didn’t happen, and thus the underlying reason Exchange was remanded isn’t applicable here.
Similarly, IndyMac Bank, F.S.B. v. Harrison, Rivard, Zimmerman & Bennett, Chartered et al is inapplicable.

Electrical Enlightenment, Inc. v. Lallemand et al

Electrical Enlightenment, Inc. v. Lallemand et al remanded for lack of subject matter jurisdiction. Judge says it best:

Although Defendants attempt to couch the terminology used in the Complaint to assert a federal cause of action under copyright law in paragraphs 13-15, the mere use of the terms “copying Plaintiff’s commercial speech” does not make a copyright claim out of a breach of contract action.

(Remand ruling took over 2 months; attorney’s fees were allowed.)

Lasher v. Bank of America

Ruling here. (Remand ruling took just over a month, but denied attorney’s fees.)
Essentially: lack of a federal question, so lack of subject matter jurisdiction.

In addition, the resolution of the federal question will not be dispositive of the case. First, numerous pure state law claims have been plead by Plaintiffs. Furthermore, even the third cause of action will not be resolved by resolution of the federal law.

Two Others

This case there was a remand mentioned, but I don’t see a response to it on the docket.
Last but not least, this docket has a boatload of people and I don’t want to have to sort it out.
So the prior history I could find doesn’t really shed any light, unfortunately.

So When?

I’m unclear if a remand is considered a dispository motion—or not. Dispository (or dispositive) motions are ones that dispose of some aspect of a case: a motion for summary judgment, for example.
Since a remand ends the case with respect to that court, I’m not sure if it’s considered dispositive. It’s simply a civil procedure point I don’t know.
Anyhow, local rules say dispository motions need rulings within 30 days and other motions within 60. So it could be a while.
Or not.

Filed Under: Ellora's Cave, Publishing Tagged With: ecda, ellora's cave, legal, publishing

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Comments

  1. Cat Grant says

    November 2, 2014 at 10:14 pm

    And the delaying tactics begin… grabs popcorn

    Reply
    • Deirdre says

      November 3, 2014 at 1:23 pm

      Heh. I think this is one of those cases like one of the books where the characters’ real motivations unfold slowly with fits and starts.

      Reply
  2. Julaine says

    November 3, 2014 at 4:49 am

    So in other words, EC’s lawyer is TSTL and delay, avoid and being generally obtuse is going to be their strategy?
    In other less than exciting news, I can’t believe I am following this case while I am on vacation. My brain will just not turn off. . I need to go find a cabana boy and start ordering Bellinis or this day is going to be really long.

    Reply
    • Deirdre says

      November 3, 2014 at 6:57 am

      Hey, I know that feeling! I’m in St. Lucia, having breakfast with an amazing view.
      On TSTL, I don’t want to make assumptions about their lawyer’s intellect, competence, or motivations.
      However, instead of stopping digging, this felt more like a half-hearted swipe at the edges of the already dug hole, with some growling thrown in for show.

      Reply
  3. azteclady says

    November 3, 2014 at 5:05 am

    This is going to be a long slog, and that’s one of the things we–those who want to support Jane emotionally and financially–must be prepared for. Remember how long it took before the judge in the Brashear case finally put an end to things.
    Aside: I feel sorry for EC’s lawyer going against Randazza. I’m sure it’s going to be a great learning experiences but those aren’t always fun to live through.

    Reply
    • Deirdre says

      November 3, 2014 at 7:01 am

      That smackdown in Brashear was about three years in, and the case continued six or eight months after that.
      So, yeah, it’s a long slog.

      Reply
  4. Mzcue says

    November 3, 2014 at 11:23 am

    Question is, which party will suffer more attrition over a drawn out case.
    Will EC authors band together to demand an audit? Will they file a complaint with RWA? Does EC have the resources to continue to pay royalties and keep its doors open? To continue its legal actions?
    If it’s not already moot, the TRO must soon become meaningless. What’s the point to trying to quell a post that’s already immortalized in scores of screen shots?
    I’m guessing that DA can withstand a long, drawn-out affair better than EC can itself. DA has proven it can rally support as necessary. Its five star attorney appears to be treating DA as a worthy cause and cutting them slack.
    I just don’t see EC coming out ahead if they try to fight the process the same way they did (and lost) with Brashear. Looks like slow death by a thousand cuts if they try it.

    Reply
    • Deirdre says

      November 3, 2014 at 1:04 pm

      I think EC will suffer more from a drawn-out case for two main reasons:

      1. It will take a lot of resources (people and money) away from book production, which is how they make their money.
      2. As I’ve detailed before, there are a hell of lot of pieces of data involved, which means proving their case is tricksy and spendy. Even if they’re 100% right, proving it is another matter entirely.

      Based on the case law cited by Randazza, the TRO was always a bad idea, but now they’re in a position where it’s been over a month, the oppositing party has submitted their brief, and the hearing’s been rescheduled twice. Withdrawing it now makes it look like it was a jerk tactic all along.
      I also believe that the judge has to give the okay for EC to withdraw their motion.

      Reply
      • azteclady says

        November 4, 2014 at 8:38 am

        Please do not quote me, but I believe Courtney Milan said that now that there’s a counterclaim, EC cannot withdraw. But that may be the whole thing, not just the TRO.

        Reply
        • Deirdre says

          November 4, 2014 at 8:49 am

          Right — it’s the whole thing, not the TRO. It’s theoretically possible to withdraw the TRO with the judge’s okay, but that likely opens them up to sanctions.

          Reply
          • azteclady says

            November 4, 2014 at 9:41 am

            Yeah, I don’t know that a TRO asking a judge to exercise prior restraint on speech (big First Amendment no-no, from what I gather) can be later be retracted without said judge (or another judge who may end up seeing the case) doing at least a double take.

          • Deirdre says

            November 4, 2014 at 8:19 pm

            Probably more like a spit-take….

  5. Julaine says

    November 3, 2014 at 1:31 pm

    The facts of this case have always led credence to the idea that EC filed in a bout of pique and a last ditch effort to hid the facts of the dire state of their business. Their game playing since has exposed their desperation and spite. Ironically, reading about the problems EC was experiencing in the Dear Author posts lead me to actually repurchase several dozen of my favorite EC books that I had lost. More titles than I have purchased, in total, in the last few years. News of this lawsuit put a screeching halt to that activity. Now my motto when it comes to EC is “not one more penny”. I can’t believe I am the only EC customer who feels this way. Seems like EC should have put their time and effort into enticing their customer base back into the fold and soliciting new authors to replace the ones who had moved on; not attempting to sue a book blogger over a well researched article. Stupidity is hardly a winning business strategy.

    Reply
    • Deirdre says

      November 3, 2014 at 1:37 pm

      Were you one of the people who had disappearing titles off your EC account?
      You’re not the only EC customer who feels this way, and there clearly are EC authors who feel that way, too.
      I keep thinking, “Wouldn’t a better approach have been to approach either DA or another respected romance publishing blog with a rebuttal?”

      Reply
      • Mzcue says

        November 3, 2014 at 5:32 pm

        Didn’t EC have any kind of obligation to back up its records before upgrading?
        I wonder if some over-worked, disinterested employee took the easy way out with you. That 800 books must have represented thousands of dollars. It’s absolutely outrageous.

        Reply
        • Mzcue says

          November 3, 2014 at 5:34 pm

          If that happened to a number of folks, I wonder if there isn’t some sort of class action you could take to try to get EC to work with you more fairly than simply shrugging.

          Reply
          • Deirdre says

            November 4, 2014 at 8:51 am

            It is, as you say, a ton of money.
            While a class action is theoretically possible, they’re so hideously expensive that I don’t think it’s worth it. Probably better for each person who lost a ton to take it to small claims.

          • azteclady says

            November 4, 2014 at 9:43 am

            I wonder, if a number of people took them to small claims for this–particularly since we hear it’s not a handful of customers either–what would the effect be, legally speaking?

          • Deirdre says

            November 4, 2014 at 1:16 pm

            Very little. After all, it’s not something submittable as evidence in the DA case.

          • Mzcue says

            November 4, 2014 at 2:15 pm

            It does support the contention that EC had a poor reputation for the way it has been doing business quite apart from anything posted by DA.
            Also, it’s another bit of backlash thanks to JB/TE’s unleashing the power of the Streisand Effect.

          • azteclady says

            November 4, 2014 at 8:17 pm

            I meant, in the sense Mscue says above.

          • Deirdre says

            November 4, 2014 at 8:18 pm

            Aha!

          • Mzcue says

            November 4, 2014 at 9:47 am

            Small claims! Of course. I knew there was a better option when I left the comment, but I just couldn’t think of it. I just can’t stand the idea of a company saying, essentially, “Too bad. Sucks to be you.”
            I hope that the defamation suit’s visibility will have alerted customers, past and present, to the risk that exists to their EC ebook collections.

  6. Julaine says

    November 3, 2014 at 3:02 pm

    Yes, I lost over 800 titles that I purchased from EC between 2007-2010. Computer crash, harddrive backup failure and then when I checked my EC account, all of my purchases had mysteriously disappeared and when I contacted them they said they lost the records when they upgraded and I was SOL. Since even my purchase receipts were stored online the computer that dramatically died I learned a very expensive but valuble lesson. Any remaining EC authors I followed, I waited and bought from Amazon. The only, and I do mean only, digital publisher that couldn’t help me restore my purchases was EC. Really reinforced the lesson that EC was lagging far behind their competitors by that point.

    Reply
    • Deirdre says

      November 3, 2014 at 3:04 pm

      Exactly so. I back up my book collection on Dropbox. They’re not big files, so don’t take up much space.
      Losing 800? That’s harsh. EC should have a better way of dealing with their accounts than that.

      Reply
  7. Mzcue says

    November 6, 2014 at 10:57 am

    I know that you are traveling and probably want to limit the time spent on EC antics, but if you have a moment in passing, I am curious about something.
    Why would DA/JL have gone along with EC’s request for more time to respond to the ruling on the remand? As an uninformed bystander, to me it seems very gentile of DA to support the opposition in its efforts to get its act together. However, gentile and collaborative are not attitudes I’d expect to see from opposite sides in a law suit. Is there something obvious to you folks experienced with litigation that I’m missing?
    Thanks either way, if you have time or if you don’t.

    Reply
    • Deirdre says

      November 6, 2014 at 12:15 pm

      Greetings from Barbados!
      I’m not sure. It may be to allow more discovery time before filing Jane’s answer. That’s the best hypothesis I have, though.
      Stipulations are fairly common, but stipulations for extensions of time are, in my looking at dockets, fairly unusual.
      Also, I don’t have a lot of experience: my experience is limited to reading all case law for the Fair Credit Reporting Act and the Fair Debt Collection Practices Act. In the course of looking at some of the back story on selected rulings, I looked at a ton of federal dockets.
      I’ve also sometimes read over dockets for cases that were interesting and got to either the 9th Circuit or the Supreme Court. Motions to remand are fairly rare; this particular judge has been a federal judge since 2003, and was previously a judge in the Court of Common Pleas in Summit County. In other words, if he were still a state judge, this could have started out in his old courtroom.
      Still, eleven years and I could still find only a half-dozen remand rulings, none particularly similar to this case.
      There are some snarky comments about him on this page

      Judge Adams is not a good judge. He has a terrible judicial temperament, routinely treating counsel poorly. His arrogance is not supported by his legal acumen, which is average at best. His decisions, even when in your favor, are marked by harshness and not always supported by sound legal reasoning. He also takes inappropriate steps to insulate his decisions from appeal. If you draw Judge Adams, transfer your case or settle it, if at all possible.

      Somehow, I think Randazza is better suited for that kind of debate than EC’s attorney. I wish there were an easy way to look up cases by attorney/judge combination….

      Reply
  8. Ex-EC editor says

    November 18, 2014 at 10:01 am

    If the custom is 30 days from the time the remand request was first filed, wouldn’t that require an answer sooner rather than later? It was first filed 25 days ago.

    Reply
    • Deirdre says

      November 18, 2014 at 10:14 am

      I’m not sure if it’s 30 or 60, and I’m not sure if that starts ticking at the date of initial filing (October 24th) or after the Opposition motion and EC’s response (October 31).
      There is one case the judge ruled on where it was longer than two months, but there may have been extenuating circumstances, too.

      Reply
  9. Ex-EC editor says

    November 18, 2014 at 10:08 am

    http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1020&context=circuit_review
    No idea if the laws are the same in the Sixth Circuit, but I found this interesting reading on the subject— particularly the part where it notes: “Corporate defendants generally believe that federal courts are a more efficient and sympathetic venue than state courts, and will thus generally pursue removal whenever possible. In contrast, Plaintiffs generally fight to keep lawsuits in state court because of their familiarity with local practice and the local judiciary. Although these beliefs were likely developed through experience and anecdotal evidence, studies have identified a “removal effect” that causes a “precipitous drop in the plaintiffs’ win rate” in cases that are removed to federal court. As if this impact on the ultimate issue of liability was not enough, the importance of a district court’s decision on remand is further emphasized by the finality of its decision, which is generally not reviewable on appeal.”

    Reply
    • Deirdre says

      November 18, 2014 at 10:21 am

      Huh, fascinating comment from that:

      Nearly every district court has treated remand as nondispositive […].

      Meaning, the ruling would be due in 60 days.
      Thanks for the really interesting link, though I’ll have to wait until later today to finish reading it.
      My own experience about being a plaintiff in a federal case and standing in front of a federal judge (Maxine M. Chesney), and hearing her speak up for me when defense lawyer tried to pull some lawyer bullshit—it gave me a fondness for federal court that I can’t even begin to convey.

      Reply

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