Sunday, December 29, 2013

The Appeals Fairy Declines Jurisdiction

If you only read the comments and ignore the post, Volokh can get you through what happened in Mann vs. Steyn a week ago.  Briefly put, the Court of Appeals pointed out that the appeal against the original complaint was moot because there was an amended complaint, sent the whole thing back to the District Court, and told the District Court to allow a marginally allowed friend of the court brief from the ACLU to be considered.  For orientation, the original Judge, hearing the case was Judge Combs-Green, who retired transferring the case to Judge Weisberg.  There are a couple of good summaries, including this from Justin VC

The new trial court stated: "The only scenario likely to cause further delay of concern to Plaintiff is the possibility that the Court of Appeals will not rule on the jurisdictional issue or on the merits, but will dismiss the appeal as moot, concluding that the trial court should not have denied the motions to dismiss the first complaint after the Plaintiff had filed his amended complaint."
But that was not the basis of the Court's mootness ruling. It did not find that the appeal was moot because the trial court ruled on the motion to dismiss after the filing of the amended complaint. Rather, it found the appeal moot because the appealed complaint was not the operative complaint anymore, regardless of the timing of the trial court's decision. The distinction may elide the new trial court, but the appellate court's decision does not specify anything that should eradicate law of the case. Perhaps law of the case should not apply due to the judge's initial error anyway, but that wasn't the basis of the COA's decision.
Which goes back to not filing frivolous appeals. Knowing that they were not entitled to an interlocutory appeal, they filed one anyway. This was not good legal strategy. If the first decision was fortuitously not law of the case - because of the judge's decision to rule on the initial motion to dismiss - then that argument should have been made and decided at the trial level; exactly like it now should. At best, your argument that these lawyers are geniuses is that they set up a frivolous appeal to get a mootness ruling that could be used to confuse the trial court in order to issue a ruling they are probably entitled to anyway. That's simply a waste of resources.
And note that Judge Weisberg telegraphs that he understands Judge Combs-Green's ruling to be procedurally deficient. So defendants' attorneys didn't need to waste the Court of Appeals' time to explain that to Judge Weisberg. He's likely to do what he would have done absent the frivolous appeal in the first instance.
PS - If I was a judge, and someone filed an appeal with me that lacked jurisdiction due to mootness, and counsel admitted they knew it was moot when they filed it, I would sanction counsel for abuse of process. 
However, the thing about the VC comments which could potentially have repercussions was the appearance of one of the defendants, Rand Simberg, dissing Judge Combs-Green.  While she has taken retired status, it is never a good idea to mouth off about a colleague of the sitting judge.Jukeboxgrad put it pretty well
Number comments in this thread posted by Rand Simberg: 61.

Number comments in this thread posted by Rand Simberg that Rand Simberg's attorneys wish he hadn't posted: 61.
 Among them for sure
Exactly.

This has been a case run on luck so far. We've had bad luck by having the previous judge, but her incompetence has also been ultimately to our favor, and against Mann's.

That is why we are breaking out champagne.

UPDATE:  Eli has never been one to resist

29 comments:

Brian said...

OJ Simpson was an overprivileged homicidal maniac, and he managed to limit his public outbursts during trial to one. He had better self control than these jokers (or maybe better lawyers - the one who was with him at the time threatened to quit on the spot if OJ didn't shut up).

On the other hand, the original judge did seem to make a hash of the motions, and it's not surprising that more hashwork would follow. Seems to me that rather than the interlocutory appeal, the D lawyers could've first stuck with motion to reconsider, including on the lifting of the stay on discovery. But it's hard to blame them too much when they've been handed a hash.

Not shutting up their clients though....

Russell Seitz said...

This may end with a large retainer being paid Johnny Cochran to orchetrate the 'If the libel lacks wit, you've got to acquit.' defense.

dhogaza said...

Cochran's been dead some time now.

And it was the prosecution, not the defense, that made the gloves an outsized element of their case. The defense intelligently realized that if they could raise doubts against this element, those doubts might reinforce other doubts (such as those surrounding Mark Furhman).

OJ was guilty.

So was the prosecution - of incompetence. You can't blame defense lawyers for taking advantage of prosecutorial incompetence.

dhogaza said...

Anon 1's surprisingly silent, after having crowed about this case in a previous thread.

Apparently Rand Simberg's attorneys have gotten to him, as he's posted a couple of mea culpa's, a post saying his responses are his personal opinion not his counsel's legal strategy, etc etc ...

Anonymous said...

You missed the best comment of all by AAron.
"Reading the posts of a half dozen lawyers try to outdo each other with their Legalese makes me want to gouge my eyes out. What the fuck are you people talking about?"
This pretty much sums up my views on all lawyer-talk. It is like listening to another language
-Dirt Girl

EliRabett said...

Simberg has not quite figured out that his lawyers represent him, not visa versa. Dh, where are those bon mots btw.

Anonymous said...

Here Dhog. Yep it is on Mann to continue his dumb lawsuit that he does not have a snowball's chance in hell of winning, but keep hoping.

1

John said...

Hurray for the Men With Day Jobs and their delightful Denial Tango!

Eli, could you identify the three musicians, members of the MWDJ?

Thanks!

dhogaza said...

Anon1:

"Yep it is on Mann to continue his dumb lawsuit that he does not have a snowball's chance in hell of winning, but keep hoping."

Whether he wins or not, or I care if he wins or not, is immaterial.

You claimed that the denial of the defendant's appeal in this case caused the *plaintiff* to have to go back to square one, signifying a significant victory for the defendant.

That was, and is, simply incorrect. The amended complaint had been filed before the appeal by the *defendents* was dismissed. The amended complaint goes forward just as it was going forward before the defendents *lost* their appeal.

Why you declared victory over this is mystifying. Why you think this changes anything is just as mystifying.

The summary in the OP is correct. Essentially it changes nothing.


Anonymous said...

"That was, and is, simply incorrect. The amended complaint had been filed before the appeal by the *defendents* was dismissed. The amended complaint goes forward just as it was going forward before the defendents *lost* their appeal."

This is incorrect. The defendants have an outstanding appeal on the ammended complaint. Square one, with a new judge.

1

Anonymous said...

My bad defendants do not have an appeal with the amended case, they are waiting for the new judge to provide a ruling on their request for dismissal, that is the square one.

1

dhogaza said...

Anon1:

"My bad defendants do not have an appeal with the amended case, they are waiting for the new judge to provide a ruling on their request for dismissal, that is the square one."

Congratulations. You are almost there. You almost grasp why the appeal's dismissal was no victory for the defendants:

It was on square one before the appeal court's ruling. It is still on square one after the appeal court's ruling The appeal and its dismissal did absolutely nothing to change that state of affairs.

Thus your victory yelp over the fact that your beloved defendants' appeal was *dismissed* was, well, your bad.

Thank you for playing.

Anonymous said...

Uh no the victory is a new judge and another judgment on request for dismissal.

Thanks for being dumb.

1

Brian said...

No Anon 1, they would've had another chance to move dismissal of the amended complaint regardless.

There was some speculation at Volokh that Ds purposefully filed a legally frivolous appeal to run the clock out on a judge they didn't like, but I'm not sure if the timing for that works.

Maybe I missed one, but AFAICT there wasn't a single lawyer in the Volokh comment thread defending the appeal, and that's a conservative legal website.

Anonymous said...

"No Anon 1, they would've had another chance to move dismissal of the amended complaint regardless."

Correct, my point was that Mann is back to square one even after the mini party here on RR when the prior judge ruled against the defendants request for dismissal.

Back to square one like nothing happened this summer with the case. So it took a "victory" of of Mann's board, in essence a defendant victory, but only to get back to square one.

Please read what I actually say, not what you think I would say.

1

Anonymous said...

"Maybe I missed one, but AFAICT there wasn't a single lawyer in the Volokh comment thread defending the appeal, and that's a conservative legal website."

That is because the appeal was against the original complaint. Once the amended complaint was filed and accepted the original is irrelevant, so of course no one is going to defend that. But when you have a batty judge still making rulings on the original complaint even after accepting the amended one, nothing is going to be normal practice.

The prior judge made the mess, now we start over like it never happened. The RR party from last summer was premature, as I predicted.

1

EliRabett said...

Depends if you think that the amended complaint is the same as the original. Evidently Mann's lawyers don't agree otherwise they would not have filed the amended complaint

EliRabett said...

EINAL, and Brian should feel free to jump in, but this always was going to depend on Mann showing actual malice on the part of Steyn, Simberg, NRO and CEI. The behavior of Simberg, Steyn et al. certainly has not helped their protestations of innocence.

dhogaza said...

"Uh no the victory is a new judge and another judgment on request for dismissal."

The new judge was in place before the appeal was ruled upon.

"Thanks for being dumb."

Well, no. I - and the lawyers at Volokh, not to mention our local lawyer Brian - understand both the timing and the fact that a dismissal of an appeal is never a victory for the appellant.

"Please read what I actually say, not what you think I would say."

When the appeals court first made its ruling, you crowed that the ruling was a victory for the appellants. Now you're arguing that the appointment of a new judge and the new judge's reconsideration of a move to dismiss is what moved things to square run.

Your recent argument is correct, as we've said all along.

Nothing to do with the appeal.

Brian said...

I'm hesitant to rush in to judge - I'm not a DC lawyer or a defamation lawyer - but Mann will likely need to show reckless disregard for the truth, not just the normal negligence.

Ds seem to have linked to reports vindicating Mann, though, so that might not be too hard a hurdle to overcome. Pretty easy to say it would be reckless to not read the reports, therefore the court will assume that Ds were aware of the information in them and wrote what they did anyway. Discovery will also help on that front.

Anon 1 is likely right that our celebrating the denial of the motion to dismiss was premature, but I don't recall knowing about the case's procedural posture at the time. And otherwise I agree with the conservative attorneys commenting at Volokh that the appeal seemed unnecessary.

Anonymous said...

One of the changes in the amended complaint was to remove Mann's false claim on being a Nobel Prize recipient.

"that a dismissal of an appeal..."

A dismissal of an appeal on an obsolete case which holds zero relevance to the current amended case and the upcoming ruling on the Ds request for dismissal. How many times do I have to say square one for you?

Mann will not win this case, which would be justice, as I prefer not to live in a society where a person like Mann whose whines are bigger than his ego.

1

1

Brian said...

So we have unanimous agreement here that the appeal was meaningless for the reasons described by Anon1. The victory Anon1 refers to is the act of sitting around until the old judge retired.

dhogaza said...

"One of the changes in the amended complaint was to remove Mann's false claim on being a Nobel Prize recipient."

Again, moot in regard to the decision on the appeal, as it happened before the ruling.

Be brave, admit your crowing over the appeal decision was bullshit.

"A dismissal of an appeal on an obsolete case which holds zero relevance to the current amended case and the upcoming ruling on the Ds request for dismissal. How many times do I have to say square one for you?"

How many times does it have to be pointed out that the appeal was by the defendants, not Mann, and that it was dismissed, and has nothing to do with the upcoming rulin gon the D's request for dismissal.

"Square one" was revisited when the new judge said he'd revisit the motion to dismiss - which happened *before*, not after or due to the ruling on the appeal.

Which, I must point out, has yet to be granted, if it is. If not, the case will go forward, and as we all know and I trust agree, it will be a difficult case to win given US laws regarding libel and slander. It would be a simple case to win for Mann in the UK …

dhogaza said...

" The victory Anon1 refers to is the act of sitting around until the old judge retired."

Yes, anon1 is trying to make us believe that this is what he said at first, rather than crow about the appeal decision and admit he was wrong about that.

Anonymous said...

I didn't crow about the appeal decision, I crowed about the RR's crowing for victory prematurely this summer due to recent events.

I look FORWARD to the next set of events with this BS case and watch the liar cry some more,

1

dhogaza said...

Anon1:

"I didn't crow about the appeal decision,"

Earlier Anon1:

"Oh and Merry Christmas to Michael "The Liar" Mann and he has to start all over with his foolish case against Mark Steyn."

Clearly a reference to the appeal decision - the amended complaint was filed way back in July, far to early for a Christmas Present.

Anonymous said...

"Oh and Merry Christmas to Michael "The Liar" Mann and he has to start all over with his foolish case against Mark Steyn."


...has to start all over with his case..

Which is true, with a new judge.

Not a single reference to the appeal decision, but rather the current state of the case.

Poor Dhog can only argue against what he wants people to have said. Go pound sand. When Michael "The Liar" Mann will lose his foolish case then I'll really crow.

1

dhogaza said...

"Not a single reference to the appeal decision, but rather the current state of the case."

The nearly six-month old state of the case.

Which you didn't bother to mention at the time, but rather waited until after the appeal decision was announced … just around christmas.

Anonymous said...

"Which you didn't bother to mention at the time, but rather waited until after the appeal decision was announced"

Because nothing was going to happen until said ruling, dummy.

The stage is set, from square one, and Mann the liar will lose.

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