OA507: Who Knows What Evil Right Wing Judicial Activism Lurks in the Heart of the Supreme Court? The Shadow Docket Knows...

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 507. I'm Thomas. That's Andrew. How you doing?

0:01:23 Andrew: I'm fantastic, Thomas. How are you?

0:01:24 Thomas: I am also fantastic. I feel like this is going to be a really fun episode. We get a shadow docket, we got comic book law. I am excited to talk about it. Okay.

0:01:31 Andrew: Yeah, me too. Let's get to it.

0:01:33 Clip: He who questions training, only trains himself at asking questions. What?

0:01:41 Thomas: Right, Andrew, this is something that kind of, uh, relates to our previous episode, which we used a really long title. And here's the funny thing, I thought I was worried that that was going to break the system, you know, like if I typed in a four paragraph essay for a podcast title. But we were so mad about the, you know, the court, the Supreme Court being a Republican institution, and and media talking about it as though it's a some centrist thingy, that, you you know, we were like, let's just do it. If it breaks the system, so be it. You can handle it, iTunes or whatever, whoever. And it turns out it actually works really well. Like on Twitter, it actually looked better to have that long title because it, like, gave more info. I guess on Twitter when it comes through, it's like, you know, you get that 280 characters. So maybe, maybe I'll make it a habit. You know, maybe they'll utilize that long title. Anyway, all that is

0:01:59 Andrew: Yeah.

0:02:31 Andrew: Paragraph length titles from here on out.

0:02:34 Thomas: To say, in relation to that episode, about how this Supreme Court has gotten a lot of rose-tinted glasses kind of coverage that it really shouldn't, about being more moderate than it is. There was something that you tweeted out recently from the account about the shadow docket and how it's possible that maybe people aren't seeing how right wing this court is because we're not accounting for the shadow docket. Now, I have forgotten what the shadow docket is because I'm not a lawyer. So I was hoping, listener Thomas asked question, could you explain to us the shadow docket? And maybe tell us how the Roberts court is using it to fly under the radar with some of its more right wing decisions.

0:03:14 Andrew: Yeah, so the shadow docket is, isn't an actual thing, right? Right. It's a, it's a colloquial term for the the set of cases that the Supreme Court decides that that are that fall into the category of either they are not fully briefed and or there is no oral argument. Right. Historically, throughout the entirety of the Supreme Court's lifespan, you get cases on the shadow docket when you're talking about like requests for stays of execution. Right. Requests for enjoining particular lower court action.

0:03:50 Thomas: Hmm.

0:03:50 Andrew: Right. When the question is, is this law going into effect or is this person going to be executed tomorrow? You can't have the Supreme Court say, OK, well, we've got your petition now. You know, you've got 90 days to file your response. And like you can't go through that whole rigmarole. We got to know now. Right? So there's an expedited process in almost all of these cases. There's no oral argument. And so historically, the Supreme Court has treated those cases as narrowly as possible, right? Oftentimes, these are the kinds of cases in which you don't get a complete written opinion. You'll just get sort of a per curiam, right, unsigned, you know, the application is denied, go away, right.

0:04:04 Thomas: Right. Right. So Then Hypothetically, was Bush v. Gore a shadow docket? Okay. Gotcha.

0:04:38 Andrew: It was not because that was fully briefed. It was expedited. But there was actual oral argument in Bush v. Gore. But that's a good way to be sort of thinking about, could you have cases that arise in a short period of time that nevertheless have lasting significance? And the answer to that is, yeah, obviously you could. And by the way, and this is what I what I tweeted out, this Supreme Court has broken from the 200 plus year tradition of trying to treat the shadow docket as narrowly as possible. Right. Because because you recognize, right, the likelihood that you've made a mistake, that amicus haven't been able to weigh in, that it hasn't received as much scrutiny and reworking and all of those things.

So the court typically is like, all right, well, you stuff on the shadow docket, we're going to try and confine that as narrowly as possible to the facts of those particular cases and not consciously try to adjudicate, to swing the direction of the court to alter substantive rights with these kinds of cases. And I will point out that even today, like our most reliable trackers, right, like SCOTUS blog, for example, which, you know, live blogs, every actual opinion read from the bench.

0:04:43 Thomas: Right. Yeah.

0:06:03 Andrew: Right. They don't accurately track everything that comes on the shadow docket. Right. Like in order to know what all of these decisions are, you have to go to the Supreme Court's Web site and you have have to read their orders every single day. That's a lot of work. That's a lot for me and I love doing it, yeah, right. So, so that all goes into kind of that designation of shadow, right? The idea is these are things that are really, really hard to figure out. Now, um, what I tweeted out, which happens to be the case, um, lots of commentators, uh, in arguing over, uh, an inarguable proposition, that...

But this is an extremely conservative and divided court, will do things like, well, you know, there were 12 cases that were either six, three conservative liberal or five, four with Roberts defecting to the liberals. But, again, reaching, right, the conservative outcome with all of the liberals in dissent, maybe including Roberts. Right. Right. And they'll say, OK, so match those 12 cases up against. And then what they'll do is they'll look at the rest of the docket and they'll say, here's two dozen cases in which it was nine to nothing.

0:06:21 Thomas: Sounds like something you would do Yeah. Wow.

0:07:12 Andrew: Right. Here's here's a handful of cases in which the alignment is weird and scrambled. And so, you know, you can't really say that this court is partisan conservative. Yes, there are some conservative outcomes, but, you know, they're not the overwhelming majority of the published opinions. We've talked about before how that's a stupid argument, that the relevant question is not what percentage of opinions come out 6-3 or 5-4, right? Because there are plenty of decisions that do not involve the court's conservative agenda or cut across it, right, things. For example, with the court's more libertarian members, it might cut across the court'S ideology as to whether you'd want to expand the police power on surveillance.

0:08:02 Andrew: Right. You could see some conservative arguments in favor of, you You get you get weird alignments on eminent domain cases for the same reason. But as have talked about and cited at great length and and as the Sheldon White House brief in the New York Pistol and Rifle Association case proved. On cases where core Republican political interests were at stake, this Supreme Court has, for the better part of two decades now, reached the conservative outcome with the conservative alignment in an overwhelming majority of those cases, right?

0:08:50 Andrew: Pre-Trump, it was in the 80s. Post-Trump, it's in the 90-plus percent range, right? It is a conservative court reaching conservative outcomes on conservative cases. Steve Ladek noted an additional fact. This is what I tweeted out, that that asked your question, that, yeah, there are 12 fully written, fully briefed opinions on the court docket that were six, three or five, four. If you include the shadow docket, that jumps from 12 to 33 and all of a sudden, yeah, all of a sudden even those made-up ratios from, you know, the the apologists in the media that are like, well, you know, compare the total, start looking dwarfed and and, crucially, these are trust-y one-offs, and, you know, per curiam orders. These are cases that are being used to advance substantive conservative arguments as if they were law. Oh,

0:09:51 Thomas: So Jeez. So, Andrew, who knows how right wing the court is? The shadow knows. Nose.

0:09:56 Andrew: Do. Oh, I like that. So now let me give you two good examples of how the court is using the shadow docket. And Right. The first is the case we alluded to last week, the review of the Knight First Amendment Institute versus Trump. Right. And this was Second Circuit opinion that decided that Donald Trump's personal Twitter account was being used to conduct official business. Right. And that therefore, right, that interaction back and forth constituted a public forum and was subject to the First Amendment, which prohibits discrimination on the basis of viewpoint. Point, right?

0:10:42 Andrew: And Trump had blocked people on Twitter, There right. Are a number of these lawsuits. Example, American Atheists has a lawsuit against local officials. I'm not going to name all of them because I know some are in various stages. But, you members of Congress will do this on their Facebook pages, right, they will post public information. And then if you get on and go, hey, I'm one of your constituents. I'm also an atheist. I'd like for you to not say that the justification for X law is our universal belief in the Judeo-Christian God.

0:11:18 Thomas: You're blocked.

0:11:18 Andrew: They will block you. That's right. The And argument, and I think, to be honest, I mean, when we first covered the Knight decision, I thought it was a close call on Twitter, Twitter, right? There's some There's interactivity, there's some back and forth, but it's much more a kind of one way, I view it anyway. We get into some back-and-forth, some productive conversations, but Twitter is much more of a dissemination, um, Facebook, right, these are starting to look like really match up close to the, uh, public forum, you know, town hall kinds of things. And the idea was, yeah, if this guy showed up at your town hall and said, uh, know, congressman, uh, as an atheist, I I find it personally offensive that you are justifying this law on, quote, you know, our shared Judeo-Christian ethics. You represent me and you You are required to represent the interests of nonbelievers in your district.

0:12:09 Andrew: You would at least have that discussion. Right. And the member of Congress wouldn't be able to say, no, get this guy. Take his car, beat the crap out of him. It's a public forum. The So Second Circuit decided, yeah, that's how Trump is using his Twitter account. Therefore, he can't block Democrats. Trump appealed up to the Supreme Court. But in the time that it took to appeal to the Supreme Court and to brief everything, an important thing happened, which was that we voted Donald Trump out of office. Yay. And so what the Supreme Court did is, and we've talked about this before, a GVR, right? And this is how something gets onto the shadow docket. That is, you grant the cert petition, you vacate the lower court's judgment, and you remand it back to that lower court for proceedings consistent with that Supreme Court opinion.

0:13:03 Andrew: And typically you GVR when the law has changed between the filing of the petition. Right. There's been a relevant Supreme Court decision. So a good example of that would be, you happened in the Arlene Flowers case. Right. That was the Supreme Court decided masterpiece cake shop. Arlene's Flowers. That Was the florist who didn't want to arrange flowers for, gay wedding, Supreme Court, GVR, said, hey, look, you've briefed this up. But in the time that you briefed us up, we decided Masterpiece Cake Shop, which is probably relevant, you know. Bakeries, florists, anti-gay bigots, probably relevant. So we're going to grant cert. We're going vacate the lower court's opinion. We're gonna send it back and say, why don't you give us a different opinion in light of what we've said in Masterpiece cake shop. Make sense?

0:13:53 Thomas: Kinda. I don't know, it's a little complicated. I don't get why they need to redo do these cases once they did Masterpiece, why didn't that already just do all this, or maybe I'm not understanding

0:14:04 Andrew: Well so let's let's stick with the Arlene's Flowers case because this is a really good example right? So Masterpiece got to the Supreme Court first right? And the Supreme Court in that case said there was evidence of anti-religious animus by the Colorado Equal Opportunities Commission. Right. They said, look, we've dug this out of the record and it seems like the people reviewing this case were extra skeptical of religious reasons not to comply with it, which was totally silly. Right? Well, that doesn't mandate on a case with different facts. Right, so now you also have the pending cert petition of Arlene's flowers. And Right the Supreme Court does not want to do, so the Supreme Court could do any number of things. Number one, they could apply their own case to Arlene's flowers, but that would really involve them evaluating the facts, right? And the Supreme court doesn't want to doing that. That's not their job. So yeah, put it in that. But they say they don't want

0:14:05 Thomas: Okay. Right.

0:14:32 Thomas: Which was silly but yeah yeah right

0:15:03 Andrew: Do that, right. So instead what they'll say is, okay, court, whatever the lower courts decision was, right, and in this case, It was saying, yes, Arlene's flowers, notwithstanding your religious beliefs, you've got to make the floral arrangement for the gay couple who wants them to celebrate their wedding. Right. The Supreme Court would say, look, whatever the Ninth Circuit was thinking, that decision does not take into account Masterpiece Cake Shop. Up. We know that it doesn't because it came out earlier. So what we're to do is if we just denied cert, then that ruling would stand. And we would say, oh, we're letting stand a ruling that might be incorrect. So here's what we'RE to DO. We're going TO grant cert. We'RE going TO take this case and have jurisdiction. So now we can tell the Ninth Circuit what to do. But we'RE going to give the Ninth Circuit a chance to get it right. So we're going to vacate their earlier.

So, gee, Grant, we're gonna vacate there earlier decision and say, OK, this couldn't whatever it is, even if you reach the right result, you can't have employed the right reasoning because you didn't know what the right reason was because we hadn't decided masterpiece yet. Now we have and we're to remand our remand to you to figure this out and come to a ruling in light of masterpiece.

0:15:28 Thomas: Okay sure okay

0:16:19 Andrew: And by the way, when you do that, parties can still, and often do, appeal back to the Supreme Court and say, hey, you remanded this, but they didn't get it right. In the Arlene Flowers case, the Supreme court denied, Ninth Circuit said, yeah, notwithstanding Masterpiece Cake Shop, there's no evidence of religious animus here. You got to comply and too bad, no relief for you. And then baronel Stutzman applied petition for cert to the Supreme Court. The Supreme Court is like, yeah, we're not going to take this. Again, And I was careful to say, right, like that doesn't necessarily mean that the Supreme Court is saying that the Ninth Circuit definitely got it right. It just didn't get it wrong Long enough that the Supreme Court had to come in and intervene.

0:16:25 Thomas: Yeah yeah so I guess that's what I'm trying to evaluate here is like, was, so that was a good, good result, right? Okay. But what's the shadow docket part? Was the original thing where they they granted cert but vacated and handed back down, is that the thing that's the shadow doocket thing that goes into those stats

0:17:02 Andrew: Right. Yes. Yes, that was. That's an example of how something gets onto the shadow docket. Right, because they grant cert and they rule without oral argument. Right? that'S one way in which something gets on the shadow.

0:17:21 Thomas: Okay okay guess I'm just trying to make sure it's fit, you know, like it, again, trying to explore the arguments, like, is that, is it fair to count that as a right-wing result if they ultimately, you don't grant cert after the Ninth Circuit comes back to them oh okay, sorry

0:17:38 Andrew: Hmm. So that was an example of how it's supposed to work. Right. Now, let me give you some examples of how this. Yep. No, no, no. Good. I'm glad we went all through that. So was the Knight case GVR? OK, it was not GVR because of a change in the law, but rather because of our old friend, the Munsingwear doctrine. And if you remember, we discussed the Munsingwear Doctrine in episode 181, way back when we first told you that Michael Avenatti was a scumbag. So, you know, there's there's some timeliness.

0:17:50 Thomas: I jumped the gun yeah, oh yeah holy

0:18:20 Andrew: Yeah, it's a delightful episode. If you haven't listened to 181.

0:18:18 Thomas: Moly apropos we told people

0:18:23 Andrew: Go back and listen to that.

0:18:23 Thomas: He was a scumbag that, and 181, that are you sure because

0:18:26 Andrew: Indeed. Yeah, I'm 100 percent. It is called Michael Avenatti is never going to come on our show.

0:18:30 Thomas: I guess you're sure then? I'm actually impressed that it was that long ago. Sorry, I didn't mean to doubt you, but that's, wow. Okay, we called that everybody as you see he's been sentenced to 30 months in prison or whatever.

0:18:34 Andrew: Yep. Nope. Yep. So what the Munsingwear Doctrine says. It says if have a sufficient change in factual situation, right, that can moot the appeal and you can vacate the prior determination and it's no longer precedential. It's no longer on the books because the situation, the fact situation that gave rise to it is gone. And we talked about how, you know, that worked to one effect in Munsingwear, where here I'm not sure that it is correct, to have Munsingwear it out night the decision. But the court said, look, Donald Trump used his Twitter account in a partisan way to block Democrats.

0:19:32 Andrew: He's not the president anymore. We. So there's no reason for the Supreme Court to review hypothetically what a President Biden might do with his Twitter count. Count. Spoiler alert. It's not be a partisan jerk. But but there you go. And so it's like, look, we don't have to adjudicate this because the current president isn't hasn't engaged in this activity. And so unless and until this comes back up again, there's no need to have any kind of binding determination because there's no relief that you can get anymore because Donald Trump isn't the president and these plaintiffs aren't barred from viewing the Twitter and interacting with the Twitter account of the president.

0:19:41 Thomas: Hmm, seems weird.

0:20:10 Thomas: But why not just be like, yeah, seems like the rule is you can't block people if you're the president. Why not just say that?

0:20:17 Andrew: It I think there's a very good argument to say that. And that's why I would not apply the Munsingwear doctrine in this case. Right.

0:20:21 Thomas: Okay. Well, Well, as a lawyer, I agree with you, fellow lawyer.

0:20:25 Andrew: I'm glad I have convinced you. But yeah, that's right. Because I would say that this is a problem capable of repetition yet evading review. Right. I would say, yeah, OK, Trump is not in office anymore, but it could be again. Somebody else could be in office. We know we want to have the guidance. And this is not like this is not so speculative and such a one off that it feels like it's rendering an advisory opinion. You're adjudicating actual rights. Yes. Did it take too And did they temporarily fix it? They did. But I got to tell you, Trump gets back into office. He's going to go right back to behaving like this.

0:20:51 Thomas: Yeah.

0:21:03 Andrew: Right. So, well,

0:21:03 Thomas: Well, and not just that, but like any president who does that will be an identical scenario. You like you say, oh, the facts aren't the same. Why does Trump have to be the president for the facts to have been the same? The facts are the president blocked someone in his official account, right?

0:21:18 Andrew: I could. So the counter argument I might make is if Joe Biden and I gotto tell you like I we follow the at POTUS Twitter account. But, you know, if Joe Biden goes, I don't think Joe Biden has ever fired a White House staffer via Twitter. Right. I don'T think he's, you KNOW, threatened a foreign leader via Twitter, right? If Joe Biden plausibly does not use his Twitter account to conduct official business, that would be a factual distinction.

0:21:33 Thomas: Not that I know of.

0:21:47 Andrew: Right? Right.

0:21:44 Thomas: Oh, that's interesting.

0:21:47 Andrew: And you might say, yeah, hey, look like Joe Biden can block like, you MAGA Russian bot accounts that do nothing but spam, you POTUS threads with, inappropriate you pictures or whatever.

0:21:48 Thomas: Okay. OK, well,

0:22:00 Andrew: You're right. Like, yeah.

0:22:00 Thomas: Also, interestingly, I guess even if this decision, you know, had gone down as president forever, wouldn't the president still be able to block anyone who's not a U.S. citizen if they wanted to?

0:22:09 Andrew: That's a really, really interesting question. And let's let's handle that another time.

0:22:12 Thomas: Well, another time. OK, but that's the way you say it makes sense. So, yeah, if the president, if a future president doesn't use the Twitter account as an official forum kind of thingy, then that OK. All right. Well, maybe. Well, then what the heck? I thought you agreed with me a second ago. Do you not? Do you Not buy that argument?

0:22:17 Andrew: Yeah. Yeah. No, I think it's a reasonable counter argument, but, you know, sort of on the whole I think It would be better to have binding precedent from the Second Circuit. And Right advisory precedent everywhere else. And then, you know, you just say if it's if it'S a subsequent president against which, you know, Twitter trolls claim, oh, yeah, this was, you know, disposed of by the Knight case, you could just distinguish it on the facts. You'd be like, yeah. But, you know, Knight involved a president who conducted official business via Twitter. And Biden doesn't do that. Right. So it in my mind, that's not an argument to GVR. But nevertheless, the Supreme Court decided to GVR.

That's not a big deal. So per curiam opinion that just says the petition for rid of certiorari is granted, the judgment is vacated, and the case is remanded to the Second Circuit with instructions to dismiss the case's moot, see Munsingware, period. That's the opinion. OK, that's why this is on the shadow docket. Clarence Thomas then wrote a 13-page opinion as a, quote, concurrence. And this concurrence is a repetition of the worst nonsense of Donald Trump's arguments About Section 230 and Twitter and literally like says, dominant you digital platforms are different. Unlike decentralized digital spheres, control of these networks is highly concentrated. One person controls Facebook. Mark Zuckerberg. No small group of people controls email. Is a fair argument that some digital platforms are sufficiently akin to common carriers or public places of accommodation, such as to be regulated in this manner. And by regulated, that means restricting their right to exclude people from places of public accommodation. So, yes, Clarence Thomas cites to Justice Harlan's dissent in the civil rights cases.

0:22:38 Thomas: Okay. Hmm. Yeah.

0:24:18 Andrew: Civil rights cases said you cannot impose civil rights legislation on private businesses. 1883, it's one of the worst Supreme Court decisions of all time. Justice Harlan was like, yeah, you can if there are places of public accommodation. Uh, Clarence Thomas, without a shred of irony or human decency, uh, cites to this, is page 1223 of his dissent, uh, the civil rights cases, uh, as an example, to Harlan's dissent in the civil rights cases, as an sample of how we ought to prevent Facebook from kicking Nazis off of Facebook. I am not. I wish I were making this up.

0:24:55 Thomas: Right.

0:24:55 Andrew: Yeah. And after going through this entire huge rigmarole of how, you these small players are really akin to state actors for purposes of the First Amendment, repeating all of the dumbest arguments of Trumpers, it ends with Twitter Twitter made clear the right to cut off speech lies most powerfully in the hands of private digital platforms. Again, this speaks directly to Trump being kicked off Twitter. The extent to which that power matters for purposes of the First Amendment and the extent to which that Power could lawfully be modified raise an interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.

So literally, this is just a lengthy concurrence in a per curiam opinion that is meant to lay out these horrible, stupid, baseless pro-Trump arguments so that, as happened, Trump lawyers and Trump supporting lawyers can cite them in their briefs and go, see, the Supreme Court has said that this is a significant topic for us to discuss. Right. And it's not just tacking on concurrences in cases like the Knight case. It is in many cases issuing full and lengthy opinions. And a really good example of that are the cases against Gavin Newsom, some of which we have followed, the most recent of which was the Tandon versus Newsom case. Right. Involving injunctive relief to churches, home churches, parachurches,

0:26:24 Thomas: Yeah, yeah.

0:26:25 Andrew: Religious organizations. And with the South Bay United Pentecostal Church. Right. Once good old Amy Coney Barrett got onto the court, these cases were all 5-4, allowing injunctive relief by religious organizations on the grounds that the religious organizations were not treated as favorably as the most favorable treatment for any secular institution, never minding the distinction between, you know, yeah, we've talked about these at great length, as

0:26:55 Thomas: Andrew. Seidel came on and was very displeased.

0:26:58 Andrew: Well he should be. So, you might imagine, Tandon versus Newsom a 5-4 decision. The chief justice did not join in the blistering dissent written by Kagan, Breyer, Sotomayor, a blisterings dissent was written without going back to, again, our coverage of those cases. Now, let's put that all into context. These are the kinds of cases that are producing that kind of written opinion, which then gets cited in the next generation of cases. And historically, the Supreme Court has not done that. This Supreme Court overwhelmingly is doing that. And as we pointed out, just 12 reported opinions are 5, 4, 6, 3 with the liberal justices all united in dissent. You add in 21 more shadow docket cases that have adjudicated substantive rights in precisely the way that we've just talked about. It's really, really bad.

0:27:49 Thomas: Yikes. Looks a little different, yeah.

0:27:57 Andrew: Yep. Yep. So there you go. I love that question. And I wanted to to bring that forward and answer it.

0:28:05 Thomas: It's infuriating, and it shows that. The there competent evil people have been the toughest to deal with in this era. Bill Barr, the Republicans on the court who are doing this tap dance to make it look like the court is more neutral than it is. Anyway, we've got so much more to talk about. We'd better get to comic book law.

0:28:14 Andrew: Yep, We we do. And again, I just preempt and say, I think we're going to have to push back. I have so much that I want to tell you about the Cosby case, and I don't think I can do that justice. Justice, uh, even if we were to just go to that segment right now. So Yeah. It's it's really really dispositive. It makes me 100 more confident in uh the initial opinion that we handed down. I've dug through the underlying civil docket. I've read hundreds of pages of documents. I can't wait to share this with you, but but I I think we're gonna have to use that. That is a teaser for for pushing it forward, because, yeah, I got to start with you. I don't want to. I don'T to do justice. I DON'T want TO do an injustice to it. Instead, I want to talk about something super happy.

0:28:41 Thomas: Oh, geez.

0:29:07 Thomas: Holy moly. What a teaser.

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0:33:04 Thomas: That teaser aside, how about some comic book law?

0:33:07 Andrew: All Right. So this is the Third Planet lawsuit. And if you're thinking, yeah, well, that would be planet Earth. That's a good planet to have a have a lawsuit on. That's correct. So, no, this is, gosh, a dozens of you sent this to us. This was retweeted by Cory Doctorow. And, you know, just, and again, I love Cory Doctorow stuff, really permeating the, you know, nerd space that at least I proudly occupy. I mean, you no, no word on if Thomas, who is exposing his kids to Star Star wars 15 minutes at a time, also occupies that But Here's

0:33:07 Thomas: Yeah.

0:33:42 Thomas: I Don't Even know what It is. I'm sorry, I'm not there yet. Okay.

0:33:48 Andrew: The lawsuit. Okay, the lawsuit is brought by Chrysalis Inc., link, C-R-I-S-S A dash, A dash, L-E-S, which I'm sure is meant to be a pun on, you know, Chrysalis, the butterfly thing, I have no idea, anyway, uh which is uh the the holding company for uh the largest uh and uh most prominent contiguously operating uh sci-fi and fantasy superstore, Third Planet Sci-Fi and Fantasy Superstore, um a, it's comic book store, um and it operates in downtown Houston, and if uh we are to take the allegations in the complaint seriously, and I do, it says it is opened in 1975. Third Planet is believed to be the longest continuously running sole proprietorship comic bookstore in the nation.

Generations of Houstonians have come to the store to buy comics, games, toys, books, movies, models, apparel, and other novelties to light the imagination of both children and adults. And I'm quoting directly from the complaint here. I so would go there, right? Next time I'm in Houston, yeah, sure, why not, right? You have this, uh, store bills itself as a local institution, um became in 1988, quote, "the first super store of of its kind in the nation." So current location is at Wake Forest Avenue and Interstate 59. It, however, is located next to the Crowne Plaza River Oaks Hotel in downtown Houston. And again, if this complaint is to be taken at face value, will read paragraph again, this is

0:33:53 Thomas: Geez.

0:35:25 Andrew: An allegation to be proven, I have no idea, quote, "sadly the hotel has long been a location for illicit activities, physical assault, sexual assault, public disturbances, criminal mischief, burglary, theft, prostitution, and other criminal activity commonly occur and are permitted to occur on the hotel premises." So, all right, allegation is it's a hotel full of crime. Um That, that's plausible. Then on the side of the hotel that faces the comic book superstore, there is an open air fire escape. And the allegation is that hotel guests go out onto that fire escape in order to smoke. And then the allegation is defendants, that is, the owners and managers of the hotel, have allowed guests to throw all manner of projectiles off those landings and onto Third Planet's roof and parking lot.

0:36:19 Andrew: Now I'm going to continue. Landed in trucks in the Third Planet parking lot and twice have caused fires. All manner of items from ceramic mugs, plates, silverware, and bottles to cinder blocks, luggage racks, and ladders have Pelted the building and property, causing damage to Third Planet's roof and parking lot. By 2008, the building in the comic book store installed a new roof on the building. Since then, he's paid for and installed multiple patches to repair the damage caused by the barrage of projectiles thrown from the hotel. Then the allegation is they've complained about this to to the hotel on numerous occasions, and the hotel has stiffed them, has said, had said, we're not going to do anything, yeah, right. Then, then we have on or about March 3rd, 2019, matters escalated to a new level of destruction, um and again, allegations, 14 large metal canister fire extinguishers were thrown

0:36:28 Thomas: Oh. My, my God. Jeez.

0:37:00 Thomas: What?

0:37:13 Thomas: 14?

0:37:14 Andrew: From the hotel onto the roof and the park, yeah.

0:37:16 Andrew: The canisters landed on the roof with with explosive impact, caused significant compromise to the structural integrity of the roof, and the roof was irreparably damaged. Then paragraph 19 just says, then came the rain. And and it says, Yeah, it is, right. So might imagine inside a comic book store, they a lot of inventory, but also your best comic book stores are going to have rare collections, right, you know, your your, Action Comics number one, no idea if they have one of those, but right, they'll have, of dot, right, items in the store sell for from a few dollars to thousands of dollars, right, for the older collectible items, they are literally irreplaceable, that is correct, right, there's, that's what makes them valuable, there were only a handful ever printed that, you know, survive, right, some are one of a kind, others are extremely rare.

0:37:27 Thomas: Oh. My. God. Oh. No, this is awful. Yeah.

0:38:04 Thomas: They weren't able to to protect these before the rains came? I mean, often they're in glass and stuff, but whatever. All right.

0:38:07 Andrew: I Don't Yeah. It's not clear. Okay, and again, that's why we're talking about this, uh, in the allegation phase, the allegation is, right, Third Planet, that's the store, has suffered water damage to its inventory stemming from the damage caused by the torrent of fire extinguishers launched from the hotel. Okay, so all of this, yes, all ofthis is to say, right, and here are the causes of action. Right, the first is negligence. Right, that is, the hotel has a duty of reasonable care to prevent its guests from throwing fire extinguishers onto the roof of a nearby building. That, that's a plausible cause of action. The second is trespass. Right, and that is when you toss stuff onto somebody else's property, right, you are allowing an invasion of that property, a physical invasion by these things. The third is is nuisance. Right, and that is you are interfering with the use and enjoyment of the land and property, and then, right, there's a request that they both abate that nuisance and also an injunction preventing them from continuing to allow the nuisance to take place.

0:38:18 Thomas: Okay. Very plausible. Jeez.

0:39:16 Andrew: I need to say, you know, the the injunctive relief is not going to happen in this case. Right. It is a permanent injunction requiring the hotel to close for a year, appointing a receiver to manage the hotel and all other actions necessary to abate. There was there was zero chance that they are going to get an order putting the hotel into receivership. Nice try. But the rest of these are very, very plausible causes of action. If discovery bears out what they have to say, right, which is, you know, you're running a hotel that is in the dangerous area of town that has all these illicit activities. You know that your customers are behaving inappropriately. You've given them access to an exterior balcony and you haven't done anything to stop it.

0:40:03 Andrew: If those allegations are true, this is a very easy case on trespass and nuisance and negligence. So, other than the facts and thinking about tossing fire extinguishers down on the roof of a building, why did a dozen people send this to us? Because of an incredibly clever, but almost certainly wrong, practice that the lawyers for the comic book store did. And that was in the middle of the complaint under a section called "Origin Story." Paragraph 23 says, "To aid in clarifying the facts of this case, plaintiffs provide the facts in illustrated form."

And then there is a 13-page kind of mini graphic novel, right, illustrated comic book that takes all of the items that I just talked to you about, has in little text bubbles quotations from the immediately preceding allegations in the paragraphs, illustrated in comic book form. So there is, for example, that is on, I have to tell you, that is on page 13 and 14. And not only are there the, does it repeat the allegations hotel guests launched a minimum of 14 metal canister fire extinguishers from the Crowne Plaza Hotel onto Third Planet's roof and parking lot, the canisters landed on the roof with explosive impact. You heard me read that to before. They are drawn like missiles in like

0:40:23 Thomas: Yeah.

0:41:12 Thomas: There's like a fire extinguisher hitting the roof, bam, pow, that kind of thing Yeah.

0:41:43 Andrew: A cluster of missiles and they land. There's a mushroom cloud like it's it's really funny. OK, it's a really, really well done comic book. It

0:41:52 Thomas: I feel like it couldn't hurt or will, or will You say the court will say it hurts, don't do this. I don't know.

0:41:54 Andrew: Yeah. So What is going to happen under Texas law. OK. And this involves of the Texas rules of civil procedure that work in conjunction with each other. The first is Texas Rule of Civil Procedure 90, which says every defect, omission or fault in a pleading, complaint is a pleating, either reform or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge of the trial court before the instruction or charge to the jury, or in a non-jury case, whatever, this is a jury case, they demand a jury trial, shall be deemed to have been waived by the party seeking reversal on such account.

What that means is if specific objections are not raised by counsel for the hotel to including the comic book, then the plaintiffs will be able to distribute this comic book to the jury at trial. And And clever as that may be, this would be very, very prejudicial to a jury. But, you know, it will look like, "I'm sorry, you let us plead this comic book and now like it it's in the record, like this is our complaint." Uh We can absolutely introduce that to the... So uh you will have the operation of the next rule. Right. Rule 91, which is called special exceptions.

And it says a special exception shall not only point out the particular pleading accepted to, but shall also point it out intelligibly and with particularity, the defect, omission, obscurity, duplicity, generality or other insufficiency in the allegations in the pleading excepted to. And this is, this is, I'm sad to say, for the comic book, knockdown, drag-out, right? Like it is it is duplicative.

0:42:52 Thomas: Yeah.

0:43:39 Andrew: Those 13 pages of the graphic novel repeat word for word the allegations from the immediately preceding paragraphs. And if this were federal court, I had to look up the Texas rules of pleading because I don't practice in Texas. If it were federal court, you, right, would move to strike. That is Rule 12 F. And it says the court may strike from pleading, from any pleading, and insufficient defense or any redundant, immaterial, impertinent or scandalous matter. So slightly different standard. But again, I think you would prevail even in federal court under federal Rule 12. um It is uh redundant uh and potentially scandalous to have, you know, a

0:43:48 Thomas: Scandalous.

0:44:20 Thomas: Wow.

0:44:20 Andrew: Comic book drawing. I know lawyers use words in a weird way. Um

0:44:20 Thomas: But What if they had not verbally said the thing, so it wasn't redundant. Content.

0:44:28 Andrew: That Would be... so somebody actually asked me, um, have you ever put graphics in the body of your complaint before? And the answer to that is yes. Okay. And where I have done so is in cases involving intellectual property, involving alleged trademark infringement, right? So it's really, really easy. For example, I had a case in which my client was, I think I've even talked about this case in the air before, but my client was selling jewelry knickknacks that involved eggs in a nest. Right. And somebody else, patent trolling, had sent a request that said, you know, this infringes on our eggs in a nest trademark.

0:45:15 Andrew: And so in answering that. I just Right. Dropped down to that paragraph and I said, you plaintiffs allege that their trademark. And then I inserted the picture is equivalent to defendants entirely different trademark. Right? And then inserted the And I've done that on a couple of occasions where where the visual depiction is necessary to understand. Right. Because in words, you would say, as they did in their complaint, both involve, you a bird's nest with eggs. Right? Right. But, you know, you could imagine looking at two different depictions of a bird's nest with eggs and go, OK, well, this is not you know this is not duplicative of a different trademark.

0:46:00 Andrew: Right. This is just, you our argument was, you can't you don't trademark the entire idea of eggs in a nest. Right. Like you can get your precise trademark, but you can't. Doesn't apply to all of them. So I have used graphics where necessary to kind of illustrate an argument like that. Um, I don't know how you would fare if you had integrated each of these panels, right? If a comic book bubbles had been the numerical paragraphs, right. It would be a really, really interesting case. Um. They make it another bite at the apple. This is the third amended complaint. I don't know the, how many times you can.

0:46:22 Thomas: Third.

0:46:34 Thomas: Amended.

0:46:43 Thomas: And The Comic books, the comic book graphics survived into the third amendment complaint, or whatever, third amendment combined. Well. That's cool. Well.

0:46:44 Andrew: Yeah. Yep. So, so I want to tell you, uh, that a motion for special exception is coming in this case, uh, and will likely be granted. It doesn't make the hotel bad guy. They may be bad guys for all the other reasons. Right. Right. They

0:47:06 Thomas: They definitely sound like bad guys based on that complaint. Yeah.

0:47:08 Andrew: Do. Well, you know, but a good complaint will make the defendant sound like bad guys. Right. But particular ruling, while it will be decried, and while the action, while the pleading will be decried by Cory Doctorow, it is what a responsible defense lawyer must do. Do otherwise, you are waiving your right to object to showing this comic book to the jury. And so you gotta give them credit, like you give the plaintiff's lawyers all credit in the world. Uh But 100%, if I represented the hotel, I would be moving for a special exception just to strike. And uh I think that's coming. Um And I don't want... I want to ward off that potential future outrage. There's still lots to be, you know, about. What you could be outraged uh but you you know, we don't know. Right now, these are allegations. So, you know, let's let's

0:47:11 Thomas: That's true. Yeah.

0:47:30 Thomas: Yeah. We'll have to follow

0:47:56 Andrew: Let's take a look.

0:47:56 Thomas: This one, just for fun now that we're invested in the story, I want to know the what's going on with those fire extinguishers. I would. So eventually we'll get a reply brief, right, that might have the hotel's version of the facts. Okay. They'll like, "Well, we... you know, those aren't our fire extinguish..." I don't know what you would say, they probably

0:47:57 Andrew: Oh, absolutely. Exactly. Well, you might also say, look like a really, really good defense on the negligence.

0:48:17 Thomas: Say like we bolted them down, it's just the the customers did it, right?

0:48:20 Andrew: Yeah, right. Would be we exercise the ordinary duty of care. And so, for example, if the fire extinguishers, right, if you have to jimmy open locks to get out of that, because I've never been in a hotel where you can get out on the fire escape, like, you you know, without triggering an alarm. Like, I don't know, maybe I just stay in a better class of hotel. But I try

0:48:21 Thomas: Yeah, yeah.

0:48:30 Thomas: Well oh yeah, hmm. You don't say in a crime hotel, like this, this one. Yeah.

0:48:41 Andrew: Not to stay in crime hotel, Inc. Like there are lots of facts that you could say. No, in fact, the fire extinguishers are in a cage and alarms would go off and the doors were alarmed. And, you know that. Right, like there's a lot that you could assert that would, make you this a closer case. So, you we don't know. We haven't heard from them yet. And and we will. So yeah,

0:49:02 Thomas: We'll see. I just think that if there's ever a real life superhero, and we do, you know, or somebody trying to cosplay as one, and we... due sue that person for like damages of some kind, then we ought to be able to do the comic book brief, you know, like there's no better way to describe the actions of the wannabe Batman, that you know, Jeff Bezos plays Batman because he's a billionaire or something, and we sue him, you there's not a better way you describe it than this comic, these pages, here you go, your honor, all This show is brought to you by Paint Your Life, and they've been with us for a while, and I'm just thinking about how many times I've told you guys about the painting that we have hanging on our wall, Lydia with Phoebe on the Beach. Paint Your Life makes a great gift, and let's face it, there are many times during the year when you need to come up with a great gift for somebody. And if you're thinking PaintYourLife.com, it's such a good idea, it must be expensive.

Well, not really. They're truly affordable. The paintings are truly affordable and the quality is so good. I'm telling you, it looks great. So here's what Paint Your Life is all about. You get a professional hand-painted portrait created from any photo at an affordable price. So you can send any picture and that could be you, your children, a place or a pet. Those are a lot of fun. I've seen some cool pet paintings, or they can even combine photos into one painting.

0:49:15 Andrew: I'm, I'm 100% with you.

0:50:22 Thomas: So that's super cool. Maybe someone didn't make it to that vacation spot that you have a great picture of. Whatever it may be, they can paint them into it. And like I've said, this makes the perfect gift. So if you've got, I don't know, a birthday, anniversary, a wedding coming up, or by the way, you want to gift yourself something. Nothing wrong with that. And it's meaningful. It's personal. It can be cherished forever. At paintyourlife.com, there's no risk. If you don't love the final painting, your money is refunded, guaranteed. And right now, as a limited time offer, get 20% off your painting. That's right. 20% off and free shipping. To get this special offer, text the word OA to 64000. That's OA to 6400. One more time, text OA to 6000. Paint Your Life, celebrate the moments that matter most.

0:51:09 Thomas: Terms apply, available at paintyourlife.com slash terms. One more times, text UA to 6400.

0:51:18 Clip: And thank you, Let's go!

0:51:20 Thomas: And now it's time to thank our Hall of Famers, our all-time greats. Something we agreed to do when we started the show, and we're going to keep doing it because we're locked into an eternal contract, even though this list gets longer and longer.

0:51:30 Andrew: Unbreakable.

0:51:30 Thomas: We still love it. Here we go, Andrew, start us off.

0:51:30 Andrew: All. Right, thank you. Too now here's something we hope you'll really like." I love that, that's a great reference. Alex and Roger are still thinking of a good name. Comedian Aaron Trahan, a.k.a. GameJumperX. KellyWovet.com, I make stuff on a loom with my hands, come buy it, Okay? Now that Thomas has two small children, it is the perfect time for an episode on train law, because trains are great. That thing in the attic. Market report: hiking equipment was trailing, elevators rose while escalators continued their slow decline.

0:52:05 Thomas: Yep.

0:52:07 Andrew: Oh, so good.

0:52:08 Thomas: I'm here for every one of those, you want to do those are funny

0:52:09 Andrew: All of the dad jokes. Yeah, all the dad joke... jokes. Potato face, if Thomas can't pork the streak, he can at least streak the pork. Liberals own guns to support root cause mitigation, not ineffective gun control. And hey, look, like we will continue to do this so long as you're a Hall of Fame patron. I disagree somewhat with this, I think Thomas disagrees strongly with it, but hey, like, you know, reasonable position. There you go. That guy. This vaccine card is written on a cocktail napkin, and it still says "not vaccinated," and And not vaccinated is spelled wrong. Eminent low main. Nice. Excited about the return of social events, but will be more excited about the return of before and after care once kids can be vaccinated. Social justice alchemy. We cut down that twerps hickory.

0:52:11 Thomas: Yeah.

0:52:53 Andrew: Nice twerp hickery. Tell Morgan get Tom's son. I have. Zach Bloom. Ray. Follow Pizza School the Corgi on Instagram. The second cutest corgi after Lily. Yeah, get behind that. It uh, although you know, Morgan ace associate Morgan Stringer has a very, very cute corgi named Tucker uh that is adorable. Live baseballscorecards.com. Legal Eagle is so handsome. California employment work accident or litigation questions, call or text attorney David Nitka, 310-776-5879. Again, that's attorney Davit Nitka, three ten seven seven six five eight seven nine. The Smiths. Andrew, thou art a gobbler mouching zoiliest, get thee hence. Praise be unto Hamilton, that mansion is vote 50 is our fault, not his. So let's get at it. I I wish I could shout that username that from the rooftops. Yeah, absolutely crazy.

0:53:46 Andrew: Dog, horse, goat, chicken lady. Rest in peace, Brandon Bernard. We must abolish the death penalty. Justice for beer budget botanist on Fiverr. Plan of the week is this Diffenbachia, if eaten, mouth swelling prevents speech, but a great house, A great house plant. Well, I'm definitely not going to eat it. Sparkle Donkey Tequila. Put a pin in that. Now take out that pin. Weird. This pin says Sparkle Monkey Tequila, but I'm not sure why. Oh, that's excellent. List it in fur ears. Steel can't comb up with something clever, that was pretty clever. East Coast Mary, all right, best coast. Uh, new book, The Greatest Gift of All: Logical Path from Religion to Humanism, by Mark Mclean, out now. To exd5, I

0:54:01 Thomas: Wow. We Hey, so we already did that, we need We need black's move. For move two still Sitting Here. Oh,

0:54:35 Andrew: Yep. All Right. Right. Jen, say hi to Lady Tiamat, Vex Alia, Marjorie Van Helsing, keeper of the gray sand sea. I. Land, this enters tapped. T for w or g, one wg until end of turn, this becomes a three four elemental creature With Reach, it's still a land.

0:54:56 Thomas: Man. Oh, It, I can't remember the one with rich, I love that creature. Land, it's a man land, uh, I'm blanking on the name, it's not treetop villages, the green one. This is from the newer generation of man lands that I, I have played with, but I can't remember. I'll know it, I'm gonna feel dumb when I remember it, but uh, good uh, good, good magic card there. I may remember it before these shoutouts end. We'll see.

0:55:17 Andrew: My My Son Alex has a t-shirt that says uh, untapped lands are why I have trust issues, so I'm, I was gonna say I bet that's funny if you play Magic, but uh, uh, that's all I can add here. Anyway, uh, Adam Borchoff, we've had baseball law, but what about hockey law? Yeah, I'm down for hockey law. Brian K, I liked my pork streaks paired with at Casa Agria and at Emperor's Brewery Beer. 75 percent of Tulane, of Tulare County DAs have less than two years experience and they're doing felonies. Some are only provisionally licensed. Wow.

0:55:50 Thomas: Huh.

0:55:51 Andrew: Starting to question Legal Eagle, seeing as he agrees with the PA Supreme Court about Cosby being tricked. Yeah, I I back channeled Legal Eagle on that. And next time we talk on Cosby, I will speak to that a little bit. But I think that's a bit far. It. I just I think he's wrong, but, you know, still devastatingly handsome. So there you go. Lee Sharp, says, oh, no associate in this lineup has ever knocked back a few fajitas. Thomas Kleberg, buddy freaking Geierson, followed Morgan on Twitter, now seeing different side of the platform. Supreme Court justices should have 18 year term limits and so should Conrad Michaels. No.

0:56:03 Thomas: Jeez.

0:56:30 Andrew: No coin at this firm has ever failed the bar exam. Two fabulous lesbians who haven't been changing their Patreon name a lot because their daughter is recovering from surgery. Oh well, I'm glad she's recovering, sorry about the uh, sorry about the surgery. Sorry y'all, if I had a nickel for every time I forgot to change my Patreon name, I would have a lot of nickels. Okay, it looks like the Patreon spreadsheet got screwed up, the list just stops there. Edgy veggie pop, new house, sassy Italy, tourists can't wait for Europe to be open again. Yeah, me too. Les deux lesbien fabulo, Jennifer Tchaikovsky, horsey Mchorsey face, equestrian, one smart cookie, scent cutters, does Jack Black know you have his pick of destiny, more like imminent dough main. John Brown did nothing wrong. Mike Hall, Evie Huntington, Harvard alum, no hood, I don't Yep.

0:57:12 Thomas: Do we have a move?

0:57:18 Andrew: Maybe this is black's move. To exd5, qxd5, how many Moves Till this makes

0:57:23 Thomas: Queen takes D5. Oh, wow. Okay. Aggressive, but maybe that makes sense. The queen has taken D5, everybody. We're on move three. White to move. Move.

0:57:25 Andrew: Yeah. Yeah. Right. How Many Movements until this makes the wiki Don't use Mortuary Taylor Green's initials, they are for heroes like FDR, villains get full names like John Wilkes Booth. Yeah, and I, MTG becomes, you know, Magic the Gathering Which really upsets That's Thomas.

0:57:37 Thomas: That's up to Teresa.

0:57:46 Thomas: Exactly. I know it's been, it's

0:57:47 Andrew: So, yeah.

0:57:47 Thomas: Been confusing for some MTG fans.

0:57:48 Andrew: Yeah. Meaning Magic the Gathering. So we will refer to her as Marjorie Taylor Gray.

0:57:52 Thomas: Yeah. By the way, I thought of Wandering Fumeral is one of the mainlands, but I don't think it's that one. I'm still working on it. I're still working.

0:57:59 Andrew: Nuzzly, Fuzzly Torshton Peel, the Satanic Temple elect Thomas Smith, president of the American Honky Tonk Bar Association. Support your local Peruvian restaurant. Yeah, get some Lomo Saltado. Angry Mac Face. Penelope is glad Sydney got sanctioned for terpsichore. The Books That Burn podcast reviewing fictional depictions of trauma since 2019. 19. This is not the greatest patron name in the world. No, this is just a tribute. Masking in public now is like going to a nudist resort. You don't want be the first to take your pants off nor last. Good All advice. Oh, Wayne. Anyone who ever lost at poker knows better than to try bluffing a Texas bankruptcy judge. Murray Gregerson. La la la la. Listen to the Esquire. Get it? Esquire. I like that they wrote in Get It? Esqire, because otherwise S and choir, I might not have gotten it.

0:58:47 Andrew: So that was excellent. Told another podcast, Minneapolis is the home of the two fabulous lesbians. They were marginally less impressed. P-Ness. That will never not be funny. Actually, we can stop reading Patreon names anytime we want. It's not a contract. Act of consideration is ongoing. I wish our newborn would exercise his right to remain silent at four in the morning. Society, Society for the Protection of the Third Amendment, celebrating a perfect record since 1792. Put your boss on a performance improvement plan. Past the PRO Act. Uh, we've got a repeat of the the first move one

0:59:21 Thomas: That is, well, that's, that is a different game now when someone's playing a different Game of Chess. Sorry. There's only one game.

0:59:21 Andrew: Oh oh yeah, I, so, well, I will read it because we we promised to read it, but but we got to we got to not reply to this one. This is one E4 comma C5. So next year you can get in on the next game.

0:59:29 Thomas: Okay. We got to read it. Yeah, different, different black opening. Probably a better better black opening, honestly, response to white, but that's okay. We're already, sorry, we're already ahead of that.

0:59:38 Andrew: Yeah, absolutely. Yeah. Crimer. No criming. Jake Seattle. Pete Guardian's ad litem of the galaxy. I still love that one. Christopher Brown. Philly live show 2022. I'll bring the scotch and cheese steaks. Who's bringing gritty? A podcast that pairs a man racing a quarter at a real-life lawyer. Lawfulcopter says, Andrew and Thomas, from the bottom of my heart, thank you for everything you guys do. Objection. Strangling Uncle Frank. I'm going to allow it. And with that, all yours, Thomas.

1:00:08 Thomas: Gosh, MR, OA live show in Sydney, Australia, please. I won't be vaccinated until October at the earliest. Thanks, government. Odin the Law Dog, associate professor of critical Beagle studies. Robert M, Dormis Decisis, that broke my brain for a second as I was not expecting it. Dormi Decisis. Lou, shout out to 5D Chess with Multiverse Time Travel. It's a great game on Steam. We can all hope that Joe Manchin is a fan. Our council advises that apparently nobody gets to put the Eli in Feline. Another Minneapolis waiting for our live show in Minneapolis. Not quite, but good enough. Close enough for non-lawyer work. Marble Colorado Live Show. Pauly Hernandez. Christ, seven years of college down the drain. Metacon 7.

1:00:54 Thomas: Emily Rainbow Spence. The best cardboard crack dealer in the Maritimes. TheDeckBoxHalifax.com. They probably know the magic card I'm trying to think of. Jason Kopis. Ian Hamilton. Strict Mutiny. Gosh, they're doing a lot of these this time. They're just... Strict mutiny. I like it. This profile name is hilarious in the context of some other podcast. Bad Textualism Hot Take. F your church, we can't legally respect it. No law respecting an establishment of religion. Yeah, Nate Drex, just some random guy more qualified to practice law than Giuliani. Yeah, definitely take burger restaurant naming advice from a podcast. My Foley Stock Basement Bar is your Foley Stock Basement Bar. For a Philly live show platinum event, you pick what's on tap. Gosh, that's definitely gonna happen. Jeff Galback.

1:01:40 Thomas: Jennifer Cratch. Side note, starting next week we'll be reading every patron name, not Not just time, the all time.

1:01:47 Thomas: No, that we won't be doing. That would, that would take a long time. Civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. Laughing my ass off because Thomas knows more about the law than a coin does. John Bilderbeck, give to modestneeds.org. Give to modestneeds.org, my friend's cousin mixed Coke with Cop Rocks and he died. Stephen Balticate Sandoval, because I know to read lawsuits from the bottom, I know two of Trump's lawyers use AOL emails. Ha ha ha, you also pointed that out, not that Chris Wallace. Philip Kizer. Andrea, the arbitrary and capricious. COVID showed me I'm the kind of guy that wants a little prick. OA 505 is the best episode title. Trump is going to prison in Georgia is a close second. Just kidding, that's ridiculous.

1:02:32 Thomas: Abscion, dude, pain strumpet, sorry for making you use that last one for so long, it was dumb. Anyway, Jonathan, Lord Kinbote, way to go, Thomas, pork that streak like a, whoops, never mind. RIP my friend Harry Mosley, survived cancer twice only to be shot by some punk. Milo Meadsong wishes all Stephen Breyers a happy retire now. Alfred Wallace, join your labor union, together we bargain, alone we beg. Parsh lives matter, dark eyes unionize, edge dancers for Bernie. No associate of this firm has ever ran a joke into the ground. We spent 20 minutes getting legal advice from the firm this week and I didn't fanboy out once. Thank you, Andrew. Andrew, false, anonymous, word origins.org, your source for word and phrase origins. My witty names aren't original and my original names aren't witty. I giggle every time Andrew Clownhorn makes it past the edit. That only happens for, uh, patrons actually, so that, that, that would be, we are reading off patron names, so that wasn't making it past the edit. There was something I, uh, let in for the, the patrons.

1:03:31 Thomas: RIP Notorious RBG. Nerd Gnostic sells art on Society6. They said I could be anything, so I became two fabulous lesbians. Derek, I don't pray, but when I do, it's for evangelicals to get vaccinated. Our kitchen is your kitchen. For an eventual Seattle live show platinum dinner, the offer stands. Big easy blasphemy. It's kind of nice having a competent federal government again. SummitShuffleboard.com. A string of unpronounceable characters. If opening arguments has joined the MSW network. Does that make you Allison Andrews' boss? Malika Chandler. They said I could be anything, so I became two princes who adore you. Soggy Pants.

The 1929 Apportionment Act is unconstitutional, preventing states getting reps relative to population. Sakashite Fukasumi. Priti Patel literally wants to imprison for life people who rescue drowning refugees from sinking boats. Oh, they sound great, whoever that is. Awesome. Adopt a homeless pet and oppose Why does Andrew drink so much scotch? Mostly because of Teresa Gomez. David in Brooklyn. Sam Donow. Mitchell. Alexa, add moral realism to my shopping cart. True Story. Total Eclipse of the Heart by Bonnie Taylor is a song about vampire love. I agree with that 100%. Natasha Crunstrap wants you to support the Justice Policy Institute. Sam Buck and Conrad Michaels. Oh, man. Thanks so much, top patrons.

1:04:59 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:05:05 Thomas: Right, well, now it's time for T3BE answer time, and, uh, we'll see if I made it four in a row or if the luck has ended.

1:05:13 Andrew: Okay, Thomas, this was a question about an investor filing a complaint against his stock broker. And it was a question about service of process. So again, you a lot of distracting stuff in the initial couple of paragraphs. But basically, the investor filed in state A, he lives in state a against a stockbroker who lives in State B. So perfectly plausible, ordinary situation, right, could be a federal cause of action pursuant to the Securities and Exchange Act, could be state law tort and say that there's diversity and he had over $75,000 in stock. None of those are part of the question.

The question is, the process server gets the summons and complaint and goes to the stockbroker's office and hands it to the secretary, to the administrative assistant. The stockbrocer then answers the complaint, asserts the defense offensive improper service of process. Then the hypothetical says, assume that the states are using federal rules of civil procedure. This is also a stock kind of assertion on bar questions, right? So that it will be the multi-state bar exam, right? Because different states may have different rules. They'll say, yeah, yeah. Just assume the federal rules apply in both states. Is the court going to dismiss the action for improper service of process? And here you immediately ruled out both a no, because the service was

1:05:53 Thomas: Okay.

1:06:38 Andrew: Made on a person of suitable age found at the stockbroker's place of employment as being wildly overbroad. Good work, right? Yeah. Yeah. That is federal rule.

1:06:46 Thomas: Yeah, got that one Find anyone As

1:06:50 Andrew: Yeah, so

1:06:50 Thomas: Long As you're 18 or something, I can give you these papers. I don't even know who you are. What is, what is this?

1:06:55 Andrew: But here's why. And again, it's a really good illustration. I think this helps a lot of law students who, you know, listen along because this is designed to penalize brute force memorization. Right. Federal Rule 4E2 says that service is appropriate on a person of, quote, suitable age and discretion when service is made at the defendant's dwelling or usual place of abode. Right. So, yeah, you can think of. Right.

1:07:27 Thomas: Mm-hmm.

1:07:27 Andrew: What's the whole suitable age thing? Think, oh, yeah, I remember. Yeah, suitable age. Fine. Right. That's why that's distractor. And that is, yeah. I gave the pleadings to Mo Brooks's wife or to his 19 year old son. You know what? That is OK. Right?

1:07:39 Thomas: So That is Okay, oh, Okay.

1:07:43 Andrew: Because you're at his house. You gave it to a person of suitable age and discretion at the house. But as you point out, the minute you think about that at the business context, you're like, wait, yeah OK. I got I found the first person in the joint and And handed it over to them and booked out. What if it was a client, right? Who knows? So good elimination on A. You also eliminated D, which was, yes, it's going to dismiss because the process of state A courts is not effective in state B. Well, if that were the case, you could never sue somebody in federal

1:07:43 Thomas: Okay. Yeah. Yeah. Yeah. Yeah. It

1:08:15 Andrew: Court on diversity jurisdiction.

1:08:15 Thomas: Didn't Make any sense. Okay.

1:08:16 Andrew: Yeah, that's nonsense, right. Right. So classic

1:08:17 Thomas: Good. All right, well, Either I got it right or the coin got it right, The classic, uh, scenario. Okay.

1:08:21 Andrew: Example. So it boils down to, is it your answer? C. Yes, because an individual defendant may not be served by delivering process to a third party found at the defendant's place of employment. Or is it B. No, because the stockbroker waived her claim for improper service of process by asserting it in her answer. And you puzzled through B for a while. And I want to tell you where B comes from. Right. So the first is, you know, you sort of asked, dismissal really the right remedy for insufficient service of process? And the answer is yes, because it is dismissAL without prejudice, typically. Right? So in other words, you can file again and serve the person again. Now, what's the harm? What's the reason why you would do that? The clock is still ticking. So in another words, if you have a three-year statute of limitations and you file the complaint two years, 11 months, and then the person successfully evades service of process, you get desperate. You have some improper service.

1:09:05 Thomas: Gotcha. Mm-hmm.

1:09:23 Thomas: Mm-hm. Okay.

1:09:30 Andrew: Then they move to dismiss. The court will say, yeah, fine, we're dismissing without prejudice. File again. You file again. We're now outside the statutory period.

1:09:37 Thomas: The Without prejudice thing, that's what I didn't think of. Okay. Got

1:09:41 Andrew: Yep. Yep, so that's why dismissal is a proper remedy here. Um, then you said, well, where else could you raise these defenses other than, uh, in your answer? And the answer to that, and I think you'd remember this if you thought about is in a motion to dismiss, right? Like a motion to dismiss is in it comes before it says has answered the complaint. Right. So you can move to dismiss instead of answering.

1:10:01 Thomas: You Is That Not What this is, oh, oh, Okay, oh, Okay, Yeah, Gotcha.

1:10:11 Andrew: But now that I've led you down that path, I got to tell you, You got it right. And the coin got it wrong because this is another super Super tricky, attractive distractor. And it has to do with the fact that Rule 12B, which allows you to present defenses to the complaint, says every defense listed here to a claim for relief must be asserted in the responsive pleading if one is required. In other words, you have to raise this in your answer, but a party may assert the following defenses by motion, by not answering.

And the things that you can raise by motion without answering are lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim upon which relief could be granted. That's 12B6. That's the one we talk about all the time, right? You haven't pled a sensible complaint here. And failure to join a required party under Rule 19. I'm not going to get into each one of those, but I will tell you from a practical basis, right, lawyers, and I will do this, will say, yeah, if you have a plausible 12B5

1:10:11 Thomas: Okay. Yeah, yeah. Oh, man. Right.

1:11:24 Andrew: Motion to dismiss or any other reason, right. Right. Then you file that via motion rather than answering the complaint, because then you don't have to take a position on any of the allegations in the complaint. If it turns out that you win you

1:11:36 Thomas: But you don't have to do that, and that's why B is wrong?

1:11:38 Andrew: don'T have to. And that's why B is wrong. And there is a unique kind of circumstance in which I've said lack of personal jurisdiction is a defense that can be asserted. That's a 12 B2 via motion. That has even more tension than than this case, because one of the the bases for lack of personal jurisdiction is you're suing me in Iowa and I've never been to Iowa. I don't even know where Iowa is on a map. I've never done any business in Iowa. You can't sue me in Iowa, And right? Think about this. Of hiring an Iowa lawyer and filing an answer in Iowa is a form of doing business in Ottawa, Right. Right. So there's this kind of like catch-22. So it's generally considered best practice when you are raising lack of personal jurisdiction to specifically call that out and to say, yeah, we are appearing via counsel solely for the purpose of contesting personal jurisdiction. And we have moved pursuant to 12B2 for lack of personnel jurisdiction because my client doesn't have anything to do with the state of Iowa. That's an example of kind of practice.

But again, the fact that this was raised in an answer might run contrary to how you anticipate doing things, but it's not required. It's not waived. And so therefore, we proceed to the merits. And on the merits, the rule governing service of process for E2 provides that an individual defendant may be served by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process on behalf of the defendant.

1:11:41 Thomas: Ah, wow. Yeah.

1:13:14 Andrew: Right. So in other words, just saying I gave it to your administrative assistant is not enough. You've got to give it to somebody who's authorized to receive it or to the defendant themselves.

1:13:25 Thomas: Wow. Four in a row. I will say I didn't nail this one quite as fully as the last ones. I think that I did ultimately get the right answer, but not quite for the right reasons on B. be. I'm not going to fault the coin for getting it wrong. You know, it was an attractive answer. It was very plausible. But yeah, wow. Four in a row, at least in terms of getting the right answer.

1:13:39 Andrew: Well we will cut the coin some slack but uh but you're doing fantastically well thomas

1:13:45 Thomas: Wow. Jeez. Cause sometimes you get a little bit lucky, you know, and then that helped. All right. Well, I think we'd better find out who this week's big winner is. And Andrew's on a little trip, so it's once again my turn to do the T3BE. Andrew picked it though. It's from CJ at Spaghettified on Twitter. Spaghetified, just like it sounds. Spaghetti and then F-I-E-D. Super early answer, so as not to be swayed by the superb analysis of Thomas. Oh, maybe they answered before they even heard the segment. Okay. The answer is C, because you can't sue Ronald McDonald by delivering papers to Greg behind the register.

1:13:54 Andrew: Yeah

1:14:33 Thomas: And yeah, well, yes, that is true. It doesn't address the attractive distractor in answer B, whether or not sure, Answering the complaint kind of negates that, but that's okay. CJ is still the winner. Nice job. You got it right and don't try to sue Ronald McDonald by delivering papers to someone at a McDonald's. And that's our show. Big teaser on the Cosby stuff. We had to push it. Can't believe it. Really excited to hear the scoop on that, Andrew.

1:14:59 Andrew: Me too.

1:15:00 Thomas: Well, you already know it.

1:15:02 Andrew: Oh, I can't wait to share it with you. Oh, and um, secret thing, if you're in that three dollar tier where you get my show notes, I'm leaving it in, all the Cosby stuff, all the references. All the documents, uh, that you are uploaded, uh, secretly to the Open Args website, like, you know, you get a sneak, you get your sneak preview if you want

1:15:11 Thomas: Oh, wow. Wow. Good call. Good call. All right. Well, then our $3 and up patrons already know what's up, but everybody else will find out on Friday.

1:15:23 Andrew: Yeah.

1:15:29 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:16:03 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.