I’m not a lawyer (and this is not legal advice), but I’ll take a stab at the question.
Motions for Dismissal and Summary Judgment have one obvious thing in common: disposing of all or part of a case, but they are actually different.
From Wikipedia:
A “motion to dismiss” asks the court to decide that a claim, even if true as stated, is not one for which the law offers a legal remedy.
vs.
A “motion for summary judgment” asks the court to decide that the available evidence, even if taken in the light most favorable to the non-moving party, supports a ruling in favor of the moving party.
Potential Examples
A motion to dismiss first assumes the facts claimed in the claim are true, but irrelevant. A federal judge in Ohio with two companies in Ohio Plaintiffs vs. an Iowa individual and corporation could decide that there is no standing to sue over claims made about hypothetical shopping habits of a non-joined party that lived and shopped in California.
A motion for summary judgment assumes the facts are interpreted as favorable as possible to the opposing party, but that even that means the mover is entitled to judgment as a matter of law. Let’s say that California party is joined and in a relevant jurisdiction, and the claim is about whether or not said party bought a house, and whether what defendant said about the alleged purchase constituted defamation. The judge could rule that saying someone bought a house when they leased it isn’t inherently defamatory, and the facts of the case, taken together with the law, don’t support a claim of defamation. Hence, summary judgment.
Courtney Milan’s Explanation
[Courtney Milan has a clearer non-technical explanation in this post.
I rather strongly suspect that EC is going to find out that this lawsuit is going to be a rather expensive way to inflict public humiliation on themselves. Either they do everything possible to settle quickly and bargain for a non-disclosure clause or as the various motions and rulings expose how absurd and baseless their claims are more and more attention is going to be focused on their shortcomings. Their previous tactics to stall are less likely to be effective and if they are entertaining buyout offers (I believe a merger is a bit of wish fulfillment fantasy on the part of PNut) they need to realize as time passes how much less attractive their brand will appear to anyone who might be interested in anything but their contracts and backlist.
Standard disclaimer. I, too, not a lawyer (don’t even play one on the ‘Net) and I am speaking as an individual with only one identity (I don’t even own a ventriloquist dummy) and the only inference that can be drawn form my comments is that I have opinions and I am allowed to state them, draw inferences and conclusions in response to known facts and I rapidly developing an allergy to pNuts (as opposed to a nut allergy here in Mundania.) Oh, and I reserve the right to relentless mock the word salad coming from anonymous Twitter accounts.
Pubnut’s endless jubilance over how the case is not meritless is comical in it’s juvenile nature. It shows a desperate lack of understanding for law. I’ve thought about the situations that WOULD make the lawsuit meritless, and here is the hypothetical scenario I have imagined.
If EC sued DA for the reasons listed and DA had never published the blog at all, it would have no merit. As DA did publish the blog piece, I do believe EC has the right to bring suit and have it heard in court. However, this does not mean that EC is correct under the law and that the case should have been filed. It means EC had the right to do so. For the case to have merit, DA had to publish the blog, and EC had to have something to lose from it’s publishing. Both of those are true.
If DA has published untruths knowingly, that’s clearly defamation. If sources claimed something which was not true, and DA published in good faith, I’m not clear on that one. However, as DA has tweeted…the truth is a defense. It is my personal opinion that since DA has acted professionally and truthfully in this matter to date, the truth will be more than adequate as a defense. If EC wanted to prove anything BUT a meltdown hissy fit, they are doing a poor job so far.
Now, having thought about that, I also thought about how it’s DA’s right to defend themselves. While I hate that DA has to do this, and I’m sure it’s stressful and awful, I’m so very glad that our country allows us to defend ourselves. I’m glad that DA recognizes her rights and fights for them.
Having read Ms. Black’s blog on occasion since last year, I can tell you I always thought she was a weirdo. However, I’m a weirdo, so I dismissed my own gut reaction as being uncharitable. I now realize that yet again I give people too much room for doubt. If it looks like a creep, talks like a creep, and acts like a creep….it’s probably a creep.
Thanks for commenting!
Merit has a much narrower definition legally than you may think. From here:
So one could say, given that the cases EC/JJ cited in their remand motion didn’t support the case for a remand, that the remand motion was not a meritorious claim. EC’s lawyer tried to argue in the margins, constructing a new legal fiction about how the subpoena changed everything, but that wasn’t successful. Some of the most interesting case law is from people who’ve tried to argue things that have never been decided before, and, even when they lose, I respect that. I don’t think the remand motion covered genuinely new ground, though, and the argument pissed me off.
“If DA has published untruths knowingly, that’s clearly defamation.” Not quite. There are several prongs one has to prove in defamation.
There are also two possible ways of proving actual malice (for limited purpose public figures):
I snagged the phrasing from this DMLP page, which is an interesting read about limited purpose public figures.
To me, the DA piece reads like a carefully worded, clearly researched piece. While there may be inaccuracies, I believe it’s substantially true.
I’m pretty sure that it’s not defamation if she published it in good faith–particularly because the weight of the post was not on what a few sources may or may not have told to Jane.
If you do a quick search of the things Jane mentions in her post–from unpaid tax liens to the Brashear suit to simply “shenanigans at Ellora’s Cave”–you’ll find a wealth of information online going back a good eight, nine years.
Some of it may be only smoke, but when a mountain smokes for half a decade, you can be sure an eruption will come sooner or later. It’s the same here. Karen Scott–she’s the only long standing blog I know of, but there were plenty of other people talking about it at the time–discussed some of the shadier going ons at Ellora’s Cave back in 2007, before Brashear sued EC. If you go to the Absolute Write forums, you’ll see that there are posts there from years and years ago expressing deep concerns about not-quite-kosher behaviour.
Erring on the side of empathy and decency is not a bad thing, though.
Ooopppssss….forgot to add above: I am not a lawyer and I don’t play one anywhere, so the very first sentence? The pure and simple opinion of a lay person.
Just a few thoughts on the nitpick EC included in their vexatious (seriously loving how this lawsuit is expanding my vocabulary) in regards to Tina’s home move to West Hollywood.
First, let’s exclude the inconvenient fact for EC that they have no grounds to sue on behalf of Tina Engler in regards to her as an individual’s and have now exposed her to being joined into a lawsuit that may prove costly and injurious to her personally. Let’s suppose for a brief instance that TE is joined so EC, et. al, has standing to object to the comments made about her expensive choice of housing.
Next, let us consider that TE made statements regarding and accepted congratulations with regards to this move. She admittedly did say “I got the house I wanted” not “I bought the house I wanted”. However the first statement could and was interpreted by some of her own Facebook commenters in the same fashion as Dear Author did. The intent to gleefully impress and celebrate was clearly present to many people, IMO. TE didn’t correct that impression so claiming that a statement of buying over leasing as injurious is frankly puzzling. The fact that she posted a screenshot of a impressive estate (I have no personal knowledge of the location or the legal status of said house) with the caption “Home, Sweet Home” does nothing to convey that she wishes Real Estate transactions of any type to remain private & confidential. Nor can they be per public policy.
Finally, why would a statement of buying vs. renting/leasing be considered injurious on the face? In many people’s minds buying implies financial stability. Either one has the cash available or sufficient credit available to acquire a mortgage. Of course, after PNut presented the novel argument that tax liens were a solid business strategy of securing low cost/ low interest loans from the government and not a sign of serious financial trouble it is possible that like minded individuals do not consider things like credit ratings, equity and assets management to be important. Regardless of buying or leasing it was clearly implied that serious financial assets were or would be expended in such a transaction.
This is sheer speculation, but it may be that TE/JB, PM et al didn’t much want something like this (scroll down a bit for the comment quoted) to come up:
Which, of course, can be charitably interpreted as, ‘the company is doing really well’–but other, a tad less generous, interpretations would be possible too.
Yeah, now that statement is really gloaty, especially since RT is not, unlike a facebook feed, intended primarily for one’s friends.
It’s worth noting that vexatious has a specific legal meaning that doesn’t apply to EC/JJ/JB/TE. Not even Orly Taitz, who’s filed quite a few lawsuits, has been labeled a vexatious litigant. So I’m going to assume you mean the more common English definition. Here’s California’s requirements, for example. I’m not going to link to the article about Orly I got that from because it cites this incorrectly. The short form is: EC/JJ/JB/TE don’t sue people frequently enough to be considered vexatious litigants.
I don’t assume there was any untoward intent with the “I got the house I wanted” statement. People who are your facebook friends are at least friendly toward you (in theory) and are lobbying for your success. However, there’s also the fact that she doesn’t limit access to her fb feed to only her friends (which I do). The fb link I have up top is to my fan page, which is open.
To answer your last question: I don’t think it’s a) injurious at all; or b) injurious on the face.
As far as the idea of a mortgage goes: why mortgage at all? Why not buy a modest home outright? Then you don’t need credit. Brannon-Engler properties could hold some of the paper if necessary. But the biggest thing I don’t understand: why lease/rent?
Posted on PACER today.
01/28/2015 Order. The Court held a case management conference on 1/26/15. As Plaintiffs confirmed they do not intend to pursue the motion for temporary restraining order that was pending, Plaintiff’s 5 motion for temporary detention order is hereby denied. Judge John R. Adams on 01/27/2015.(M,TL)
Thank you Eaglet!
I was working on that in another window, just at a sloth’s pace.
Deirdre, you are right vexatious is probably not the best word in terms of legal definitions, perhaps frivolous (which also has a specific legal def.) would be a better word.
Telling people that you are friends with about your excitement over getting a new home, however acquired) is definitely not wrong. But as you pointed out it is not only her friends she shared her news with. The semantics over buying/leasing seem to be a very narrow point to hang a legal argument on. It is just TE appeared to be so thrilled about a transaction that many of her authors, contractors and employees can’t aspire to in the near future possibly due to the actions or inattention of a company she owns. When people are receiving tiny checks, backdated by weeks in unpostmarked envelopes and their questions go unanswered and/or ignored they are likely to take such boasting poorly. It’s that the issue was drug into the overall lawsuit that is so strange.
As for why she leased vs. buying something within her means? I think I could probably accurately speculate but won’t. I will just finish on the note that I am really hoping that discovery gets to the bottom of many mysteries. We are all living in interesting times.
It is a very narrow argument, and I can’t understand why anyone would think the distinction was worth a cause of action in a lawsuit. Sometimes renting will cost more than owning (and sometimes the other way around).
As for the rest, I’m just too exhausted today, sorry. I may need to go back to bed soon.
I hope you get better soonest–and that it’s not the flu!