OA512: Actions Continue to Have Consequences!

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 512. I'm Thomas. That's Andrew. How are doing?

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

0:01:26 Thomas: I am fantastic because we're about to be reunited at last. Couple days here.

0:01:31 Andrew: And it feels so good. A little peaches and herb there.

0:01:33 Thomas: Yeah. While we're on the topic of previews for things, first off, next episode, Activision. Everybody has been asking us about that lawsuit. So Andrew has done the research. I've done the research of having played video games before that's what I bring to the table it's Blizzard, right? Is that the same company?

0:01:53 Andrew: I bring a little bit of that, too. I mean, you know, it, uh... Well, Activision owns Blizzard

0:02:00 Thomas: Yeah, So.

0:02:00 Andrew: Now. Yeah, exactly.

0:02:01 Thomas: I have some Blizzard experience, which is sad because I've always liked Blizzard, but it sounds like maybe not the best company. So that's next week, look forward to that. That also, Q and A coming up. And, uh, this is going to be a little different, folks. We do the Patreon Q and A at the right around the end or beginning of every month. And as always, patrons can ask questions. You'll get the question thread that Andrew, uh, may have already put up as I'm speaking, or, and everybody can show up to the YouTube and, you know, hang out, chat, interact, see us. It's super fun, but because Andrew and I on a little, uh, little, little OA family vacation, we, uh, we're going to do the Q and A, and, F it, we'll do it live and we'll be together, but we just have no idea when will be the time that we have a set aside to do that.

0:02:48 Thomas: So at some point next week, you'll get a Patreon Q and A on YouTube. Uh, we'll try to give you some notice, but we're just not sure when, how the scheduling is going to work out. But when we do, not only will it be super fun and we get to, you know, hug and kiss in real life, but also there may be some special guests around us, it'll be very much, very fun. So.

0:03:09 Thomas: Look forward to that, okay, but also looking forward to this show. Some sanctions updates, some other stuff, so let's get to it.

0:03:09 Andrew: Yep all right

0:03:17 Clip: Down the law, down the law.

0:03:20 Thomas: So first, Andrew, there was an update on the Swallow, Mo Brooks, all that. Remember that good stuff where they're serving Mo Brooks's wife and so forth? What's the update there?

0:03:31 Andrew: Yeah So, uh, this is an important lawsuit. Right. In the U.S. District Court for the District of Columbia, Eric Swalwell is suing four people in connection with the January 6th insurrection. Three of them are Trump, Trump Jr., and Rudy Giuliani. They have kind of taken one track, which is to argue that they have presidential immunity, and the son of the presidential immunity, immunity, and a guy who's now disbarred but was an attorney for the presidential immunity.

0:04:04 Thomas: Yeah.

0:04:05 Andrew: Those arguments.

0:04:06 Thomas: Hereditary presidential immunity. That's a new one for this country. I thought we we weren't into that kind of stuff.

0:04:07 Andrew: Right. Yeah. Those arguments, not great. Not going to cover those today because the interesting developments have all been about Alabama House member Mo Brooks. We talked about him evading service of process, which he did, and then failed, it appears, right, from reviewing the docket, fails timely to answer the complaint, you know, you have after service, that's what triggers your obligation to answer. That's why you evade service, to give yourself more time. So Eric Swalwell moved to default him, right? For a default judgment against Mo Brooks. And then Mo Brooks filed a motion that said, I did file it on June 24th, but for some unknown quote, for reason unknown to Brooks. And although the court clerk received Brooks's petition to certify on June 21st, they inaccurately date stamped that as being received on July 2nd, 2021, eight days after the court clerks actual receipt of Brooks's Petition to Certify. Um, this super weird because all the filing is electronic in federal court and now in most state courts.

0:04:30 Thomas: Ooh. Yeah. Yeah,

0:05:15 Andrew: So, yeah, I don't know. But whatever. It doesn't matter. Courts are incredibly reluctant to default somebody. So the motion for default was denied. But you might have noticed I said he didn't answer. He didn't move to dismiss. He filed a petition to certify. And you might say, what the hell is that? And the answer is, if you recall our coverage of the E. Jean Carroll case in Episode 498. Right. This is a motion to certify pursuant to the Westfall Act. Right. To say, oh, I'm a congressman. And so everything I said in connection with the January 6th insurrection was part of doing my job. So therefore, the Department of Justice and or the House, the House of Representatives Council ought to defend me instead.

0:05:22 Thomas: Yeah, yeah. Oh boy. I I know. We, uh, give a lot of leeway with this stuff, for uh, what's your job and what isn't your job, but I got us there. We can, we draw the line at I'm a Congressman. I was just doing my job when I was trying to overthrow the government. Is that, Can we draw a line there? Can we all agree that's not doing your job? That's the opposite of doing your job?

0:06:07 Andrew: Yeah, Well, not only can you and I and all of our listeners agree, as it turns out, so can the Department of Justice and the House of Representatives Office of Council.

0:06:40 Thomas: Oh, they get a say in it. I didn't. Okay, good. I thought some judge was going to tell us or, you know, the argument would be, well, I was trying to get reelected by overthrowing the government. So therefore, it's part of my job.

0:06:41 Andrew: Yeah, that that's right.

0:06:51 Andrew: Well, remember that the operative case here is the Ballinger case, right? Carey versus Ballinger, uh, that was the congressman who said giving interviews was a part of his job, and uh, if in those interviews he happened to say unbelievably racist things about the Council on American Islamic Relations, which, shocker, a Republican congressman did, uh, that that was nevertheless within the scope of his employment. And the U.S. District Court for D.C., right, that this particular court agreed with that assessment and was affirmed on appeal. So wide ranging definition of what counts as acting within the Scope of Office or Employment does not apply to Mo Brooks.

0:07:23 Thomas: Yeah.

0:07:34 Thomas: Okay. Thank God.

0:07:35 Andrew: Again, remember, in Episode 498, right, we talked about the reasons why Merrick Garland and the Biden DOJ decided that Trump giving interviews counted as being within the scope of his employment. We explained that while that was disheartening in the individual case, that there were good reasons for the DOJ to intervene in that Trump case under the Westfall Act. Here, there are not good reasons. And the DOJ actively declined. I mean, they they wrote a 22 page brief saying, you do whatever you want with this guy. He's not ours. And it is it thorough and detailed and and kind of hilarious to read.

0:08:21 Andrew: Right. Like whenever you get to write a header like instigating an attack on the United States Capitol would not be within the scope of a member of Congress's employment. That's a pretty good one. So yeah, I mean, it goes through, it analyzes the question of what counts as the scope of your employment and then says the DOJ has declined certification under the Westfall Act. Brooks has the burden to show that he was acting within the scope of his office or employment as a member of the U.S. House of Representatives at the time of, it's pled this way, "the incident out of which the complaint arose." Brooks has not carried that burden. And the arguments are, first, the record indicates that Brooks' conduct was undertaken as part of a campaign-type rally, and campaign activity is not of the kind he is employed to perform or within the authorized time and space limits for a member of Congress. And again, differentiate that from the president, right? Right. Like so, one of the things that, you know, was frustrating about the Trump case, but but represents reality is the president is always on the job.

0:08:31 Thomas: Yeah. Yeah.

0:09:24 Andrew: Right. There really isn't. And so, you I mean, you this is kind of the Dershowitz argument from the second impeachment. Right. That is very, very difficult to parse out. This is actually Dershowitz's argument from the first impeachment. Sorry, too many impeachments and too many bad Dershowitz arguments to get them all straight.

0:09:40 Thomas: Yeah. Yeah. I just have a handy guide, which is somehow whatever Trump did is fine. That's the argument.

0:09:43 Andrew: Right. Well, that that it's a one step flowchart, right? Did Trump say this and pay me for it? Yes, it's fine. But yeah, no, Dershowitz's argument was that you cannot really disentangle trying to get reelected from acting within the public interest. And while the argument stated that broadly is and rightfully should be ridiculed, right, there's a core to which that is true, right? Like presidents get reelected when they do good stuff for the country. And so, doing you good stuff, motivation might be to be reelectED rather than altruism. But nevertheless, like we would say, OK, well, doing you good stuff is within the purview of of the president. Members of the House of Representatives in particular, because they run every two years, which means they run all the time.

0:09:47 Thomas: Yeah. Yeah, yeah.

0:10:37 Andrew: They're never Right. Not running for office. This. Is a clear delineation, I think, and it's evident in the case law and evidence in this brief of, you when you're on duty and when you'RE off duty. And so part of what underlies this particular filing is the DOJ saying, yeah, can draw lines here and we can see that That what he was trying to do is charitably, right, at best, the most that Mo Brooks can say is, well, you know, I was talking to my constituents and riling up the crowd and whatever. And like, OK, great. But your participation at a campaign event is not within the scope of the office or employment as a member of Congress. That's a thing you do to get reelected.

0:11:24 Andrew: But that's not a thing in which the government over which the governor has any interest. And again, remember, the point of the Westfall Act, which we went through great history in episode 420, I'll pause for requisite giggle, was to protect civil servants, right? It was to protect the government's ability to get people to want to sign up to work for the government and to say, hey, typically when I go to work for IBM, I'm not personally liable for bad stuff that IBM does. So I'd like the same kind of assurance that I can come to the government and do my job and, you know, not be not be held personally liible for this.

0:12:06 Thomas: But this is Like you work in PR in a building or something, and you take a sick day, and then out you're outside the building and you're trying to convince a crowd of people to burn down the building you work in, and then like the next day at work you're like, so can you, um, I have these expenses from yesterday, do you mind, as the company is going to pay for that. What? I was doing public relations. I'm a PR guy. I was talking to the public about burning this building down. Reimburse me.

0:12:31 Andrew: I I'm laughing but in his petition this is paragraph uh 41 congressman mo brooks said that, quote, his conduct occurred in the context of and in preparation for congressional votes on January 6th, 2021. That's a weird kind of preparation, right? Hey, I'd like not to be here to run out and encourage you to storm said votes and make them not happen, which, by the way, is what happened, right? I mean, it's just, when a Thomas analogy is slightly more favorable to Mo Brooks than what happened. Yeah. This now remains within the judge's discretion, but the fact that the DOJ has weighed in and said in a really well-briefed argument, decline. That means that the likelihood that judge here is going to find that the Westfall Act applies is very, very, Very, Very low. And remember, the judge in this case, I guess I should give a little bit of a disclaimer. This is, we've talked about him before, Judge Amit Mehta, a former partner of mine at Zuckerman Spader.

0:12:51 Thomas: Yeah.

0:13:41 Andrew: If the name is familiar, that's because he was the judge from the the district court for the District of Columbia over the Mazars litigation in D.C. Right. And he wrote the like masterful 97-page opinion that that we praised with respect to Congress's rights to subpoena the the Trump tax records. So I have a little bit of a bias because I know him personally. But again, this is an incredibly thorough up and coming judge. And I think it's very clear what's going to happen here. Mo Brooks is on his own.

0:14:20 Thomas: Yeah, what? OK, what, why we, OK, we've covered that Mo Brooks is the world's stupid, the country's stupidest member of Congress probably, which is Yeah It's Tough Yeah Uh, but I mean he's still a functional human being, so what is he thinking here? Is that, do you think, like, yeah, yeah, Biden, DOJ, you guys have my back, right? Right. We go way back. Huh? You're going to cover me on this. Or is this just a stalling tactic? Is that all it is?

0:14:28 Andrew: Whoo A lot Of A lot Of competition There But No I think that he thought that the DOJ would actually certify here, probably Based on the decision in the E. Jean Carroll case, right, would say, look, yeah, the Westfall, I remember that the Westfall Act is named because it overturned a Supreme Court decision, right, the Westfall case in 1986. And it was an example of like bipartisan support, like, oh my God, let's immediately protect and, you know, put in as sweeping broad language as possible to make sure that, you know, we're covering ourselves. And typically, right, when it comes to construing statutes that protect members of the government, right, administrations tend to construe those broadly, regardless of whether it helps the party in power or the party out of power, because, right, they recognize that it's shifting.

0:14:52 Thomas: Wow.

0:15:39 Andrew: And so, you if this were a lesser case, right? If this were the Ballinger case, and it was a member of Congress saying derogatory stuff during an interview and then getting sued for defamation, a Democratic president might look at that and go, go, well, we're unlikely to say openly racist stuff in our interviews, but it's not unlikely that we won't get sued by cranks for defamation because that happens all the time. And we want to establish the precedent that, you what members of Congress say at press conferences is covered by the Westfall Act. And, you Know,

0:16:14 Thomas: Yeah. So in Mo Brooks's mind, it's like, Hey, maybe next year it's Democrats trying to stage a coup and on to? Some good news. Sanctions updates. You know, we're always going to be covering this and it's always going to make us happy every every single time. Andrew, I know we were waiting on some briefs that I'm sure we're just going to totally change this entire thing. Right. I mean, we're just a couple additional supplemental briefs away from everything being cool with what the Kraken lawyers did. Am I right?

0:16:21 Clip: YOU BETRAYED THE LAW!

0:16:49 Andrew: Is exactly right. And we have now passed the the briefing deadline. It was originally the 26th. It was extended by two days to the 28th. So as we are recording this yesterday, day. Everybody who wanted to file a brief has now filed the brief. And we're going to walk through this. And I want to just piggyback on what you said. We're covering the sanctions motion for a lot of reasons, right? Number one, because it is sort of the first brick in the wall of actions having consequences. Number two, because it's hilarious. Number three, and I I really really I can't stress this uh enough, narrative that the right wing has been feeding, including during this very sanctions hearing, that we discussed that broke down a lot off of movies, right, is, well, you know, we just want an evidentiary hearing.

0:16:51 Thomas: Mm hmm. Yeah.

0:17:39 Andrew: We we we're getting kicked out, nobody ever is bothering to listen to our evidence, and, and, as the judge pointed out, well, not only is that that a lie, right? Like their their evidence has been evaluated by dozens of courts issuing 100 page opinions that go into detail about how terrible and stupid these affidavits are.

0:17:39 Thomas: It's just a lie.

0:17:56 Thomas: Yeah, we went over them. I only emphasize it because it's a very important lie. You know, it's the one that seems really sticky among Republicans that I've heard from, which is, well, they didn't even get there. Oh, technicality, never even got their day in court. And it's like, as we went through, there was one of the rulings, if I remember right, Andrew, that we broke down on this very show that was like, well, we don't need to go into this because, you know, you have no standing and this is BS, but just for fun, and then they like still went into the evidence and we're like, again, we don't need to do this, but we're going to, this evidence is terrible, you have no case.

0:18:00 Andrew: Yeah, that happened both in Michigan and in Pennsylvania that we say it from. So, but again, I want to speak in terms of, if you were talking to an Uncle Frank in your life who was parroting that nonsense and you can't get them to sit down where we thoroughly debunk that over an entire episode of OA, might want to point out that what's happening in the sanctions hearing is that the question is not, are your arguments correct? Right. The question here is, do your arguments cross the bare minimum of not being 100 percent nonsense? And spoiler alert, they're losing that battle. Right. So if you were to have a trial, it would be I mean, again, it Would Be Something About Which You Could Not Parody. Right. Like it would just be it minute after minute of Sidney Powell standing up going, first we'd like to call our first witness, Spider, and the judge go like denied.

0:18:32 Thomas: Yeah yeah yeah how

0:19:30 Andrew: OK, well, now we'd like to called Terpsichord denied. Right. And like it would just be a series of, you're kidding me. Right. So with that in mind, uh, who filed briefs, who didn't file briefs, um, let's go through it, I'm gonna start off with yeah

0:19:36 Thomas: Many pages were there, sorry, that, that's a call back to the lot of them, what font

0:19:49 Andrew: Yeah no, that was a big thing every single, every single brief filed here was was over length, was the court said filed 10 pages, nobody filed less than 20 um with the exception of Emily Newman, right, you might remember Emily Newsman from such hits as It's My First Day, um usually

0:19:54 Thomas: Oh my god, yeah she's yeah it fits that she's the one person that maybe listened to what the judge wanted here. And Andrew, good idea to listen to what The Judge wants, right?

0:20:15 Andrew: Usually it is, so, so weirdly, Emily Newman hired a new lawyer, right, we told you she had a high price, two thousand dollar an hour lawyer, uh, at, the hearing, uh, who comported himself well by not saying a lot, um that was

0:20:21 Thomas: Yeah. Oh my God. I'm so sorry to interrupt again, but that must've been the most, can this be an email ever? Imagine her sitting there, Emily Newman, who did not talk, sitting there with her $2,000 an hour lawyer, just watching the Zoom go on for for like seven, eight hours. Oh God, please. Can we just

0:20:27 Andrew: Yeah yeah for six hours yeah, yeah yeah, she wrote it, she wrote a five-figure check for that, for that day uh yeah that

0:20:44 Thomas: For that? Uh, can we adjourn? Can we adjourn motion to, Oh, that would have been the worst.

0:20:51 Andrew: It may be why she had to hire Timothy Galligan. And it may be why she didn't file a brief here. I mean, she may be broke. But yeah, I mean I cut to the punchline. Her argument at the hearing was it's my first day. I worked five hours on this case from home remotely. I was never involved. I didn't do anything substantive. Nobody tells me anything. Nothing I did wound up in the brief. I didn't do anything.

0:20:54 Thomas: Yeah.

0:21:14 Thomas: Who am I? Who are you? Where are we right now? What is life?

0:21:15 Andrew: Yeah. Right. Right, right. You get a little Admiral Stockdale there. Yeah, I was

0:21:21 Thomas: Oh, I was going for a George Harrison, I guess.

0:21:25 Andrew: Going for who am I? Why am I here? Right. Any event, she also made the argument at the very end through counsel at the the very end that she never actually received a copy of the Rule 11 sanctions motion, right? And the response from counsel for City of Detroit, right, Fink, David Fink was, "We emailed you, we sent the Rule 10 notice, we send a hard copy to Sidney Powell's address at Turtle Creek in Texas. And by the way, we sent six copies there and all," "All the other lawyers listed at that address managed to get their copies, but not you. Come on." Right. And Emily Newman didn't file anything.

0:22:05 Thomas: Huh?

0:22:06 Andrew: At minimum, if I represented her, you would file a five page pleading that contains your affidavit that reiterates the things that counsel argued at the hearing. Right. Because counsel's arguments at the hearings are not evidence. Right? Right. And you you repeatedly heard that from in sort of desperation from the Kraken lawyers as the hearing wound on where he, David Fink, was summarizing facts in evidence and they would say, "Well, now he's testifying." And David Fink would go back and go and on a couple occasions he went back in and rephrased the statement. And he was like, "Yeah, it's not testimony when I'm summarizing the evidentiary record before the court." But that last one was. So let me reframe. A that. Lawyer's argument is not evidence. So Thomas Buchanan, Emily Newman's attorney, saying "it's her first day, it's five hours," that doesn't count until you put that in an affidavit and put that on the record and you sign it under penalty of perjury.

0:23:02 Andrew: And that's because lawyers are not responsible to the same degree for stuff they make an argument as opposed to stuff they've signed. Right. That's the whole purpose of this proceeding in the first place. So Emily Newman did nothing. I thought that was weird. The next strategy was Lin Wood. Lin Wood filed two briefs which overlap a lot. And as we pointed out on social media, I found this really, really odd. We talked about this again, I think, on the Law and Awful Movies. He hired Paul Stablein, a local Birmingham, Michigan attorney who seems to be a pretty lefty guy who expressed a lot of opinions about the insurrection.

Election and but nevertheless decided that he was going to represent Linwood. Not a decision I would make, but, you know, Paul's got to do what Paul's gotta do. Linwood's brief essentially amounts to who are you people? I don't, I never had anything to do with anything ever. I should say as a sidebar, you might recall the reason that Linwood had to file two briefs is because immediately after the hearing, David Fink filed an emergency motion to sanction Linwood for his conduct during and after the hearings, which included allegedly broadcasting out the portion of the hearing in violation of the court's local rules.

And the court said, yeah, show cause, Linwood, why we should not sanction you for violating the court's local rules. And so that part of Linwood's brief, I think, is probably going to carry the day. I think that that Judge Parker is going to say, yeah, OK, I was heated because you're a jerk and I wanted you to show cause. But the argument is provided the factual assertion is that what Linwood did was provided a link to a another social media streaming of Sidney Powell's closing argument.

0:24:19 Thomas: What

0:25:06 Andrew: And and the argument that I find reasonably persuasive is the the sanctioning rule prevents you from recording and broadcasting the hearing. Right. Takes takes it out of the court's control, basically. And here he didn't really broadcast anything. He posted a link to somebody else broadcasting It. By the way, you footnote, Paul says, "Here's a link to a Google search that presumably shows that the entire hearing is available on YouTube right now." Now, I did not click on that link because, you know, I'm, I'm a member of this court. Would be very surprising to me if the court, having lots of good reasons to sanction Linwood, decides to gild the lily and also sanction him for for broadcasting when, you know, what he did was post a link. I think that's fair. Now, having mounted that vigorous defense of Linwood, the bulk of the rest of his two pleadings are inexplicable to me.

0:25:26 Thomas: Right.

0:26:11 Andrew: And the reason is, right, remember, Linwood's argument is, I don't know who any of you people are. I didn't have anything to do with it. This is all Sidney Powell. And, you know, I didn't even know, you know, where I am. Yeah, go ahead.

0:26:25 Thomas: Yeah, it was, well, again, listened to lot of awful movies, it was great, but it's like, yes, my name was on this brief, no, I didn't give permission, but I didn't not give permission and I'm not mad about it, but also I had nothing to do with it, get me off of this, but, also, yes it's fine, my name was there, but not, you know, like, it just, it was every which way, it's classic equivocating, I

0:26:47 Andrew: That is exactly right. The piece of evidence, there were several pieces of evidence including right. Linwood's Twitter account or not Twitter anymore, but whatever. Right. Like statements Linwood made over social media. But what I said and found most damning was Fink's having unearthed and placed into evidence the brief that Linwood himself filed, right, in Delaware, where, as we talked about this, the state trial court judge in Delaware revoked his pro hoc vice motion where Linwood represented Carter Page, In right? An unrelated litigation. Litigation. And that got appealed all the way up to the Delaware Supreme Court as a collateral appeal.

0:27:33 Andrew: And in arguing before the Delaware, in arguing before the Supreme Court, Linwood said the Superior Court, the trial court here, abused Abused its discretion and should not have kicked Lin Wood out of the state, basically. So the precise argument, the Supreme Court, the Superior Court, that's the trial court, has abused its discretion by sui sponte revoking appellant L. Lin Wood's pro hac vice privileges, where that revocation was based upon conduct unrelated to the litigation for which Wood was admitted to practice pro hac vice, where the conduct in those other jurisdictions was not found to have violated any of those jurisdictions' professional rules of conduct, and where Woods' conduct before the Superior Court, the trial court, met the requirements of the Delaware rules of professional conduct and did not threaten to prejudice the fairness of the proceedings.

0:28:21 Andrew: This is a losing argument in the Delaware Supreme Court. It also kind of reveals the shell game, he's saying in Delaware, I haven't been disciplined anywhere else, so you shouldn't discipline me here. And then he's going Michigan and saying, well, you shouldn't, I don't have anything to do, you can't sanction me here because I didn't have any to do with this case. But the problem is that literally the opening paragraph in this brief, this right, is the statement of fact section, it's page four, and these are? His own words through counsel. Appellant L. Lynn Wood is a well-known attorney who enjoys a stellar reputation in his home state of Georgia, where he is licensed to practice law. I mean, there's an open disciplinary proceeding against him, but he decided not to add that in. With Wood's reputation comes a degree of notoriety attributable to his involvement in numerous high-profile cases around the United States where he has been admitted to practice before both state and federal tribunals on a pro hac vice basis.

0:28:31 Thomas: Yeah

0:29:19 Andrew: By way of illustration, Wood represented plaintiffs challenging the results of the 2020 presidential election in Michigan and Wisconsin, period. So that's a pretty bad piece of evidence if your argument is I don't even know where Michigan is, right? And it might shock you. It shocked me that in what amounts to 49 pages of briefing by Lin Wood, right, that repeats stuff like Mr. Wood did not file this lawsuit. He was not a party to it. He did not submit the complaint. He did not sign the complaint he did not advocate in this court. It Right. Says that over and over again with citations to cases at no point in any of those forty nine pages does Paul Stableline try to distinguish Woods own words in the in the Delaware Supreme Court.

0:30:12 Andrew: That's not a good strategy. And I I will tell you that the city of Detroit's supplemental brief mentions all of that again. Right. And it's like, look, for the first right, that various other counsel have said that Linwood was one of the drivers of this lawsuit, which, again, is represented in the record that, you know, Sidney Powell tried to fall on her sword, you for the first time ever at the very end of this hearing. And just don't don't don't buy any of that. So, you know, for example, David Fink says Wood admitted during the hearing that he offered his services as a trial lawyer to Powell in connection with this case. That alone satisfies the Michigan Rules of Professional Conduct Rule 8.5(a) criterion of an attorney who, quote, offers to provide services.

0:31:01 Andrew: He's right. That's the law. It's very, very clear. Linwood is getting sanctioned.

0:31:06 Thomas: Couldn't happen to a nicer guy

0:31:09 Andrew: One more argument that rightly makes fun of, which is, well, I didn't practice in this jurisdiction because I didn' even try to get admitted. And, you know, and that would be like if I went into Idaho and said, yeah, I'm a licensed Idaho attorney and started, you know, appearing in various cases and was like, oh, well, you know, I'll wait. There must be some error in the computer or whatever.

0:31:35 Andrew: And then, you know, take a whole bunch of people's money and flee the state of Idaho. State of Idaho absolutely can sanction me for doing that because I'm evading the very rules that are are attempted to apply. So, uh, that rule 8.5 subsection a says a lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction. If the lawyer provides or offers to provide any legal services in this jurisdiction, So so that's Linwood. That's not going well.

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0:34:00 Andrew: Then we have Stephanie Lambert Gentile. You might recall Stephanie Lambert Gentile as being the lawyer who handled the appeal. And again, she, she had clicked that box of don't even show my face unless I'm being spoken to. So, you know, really, really tried to hide during this entire six hour proceeding. She was, was basically asked two questions by the court, again, we, we actually play this question on the Law and Awful Movies, um, the first was, uh, well, I suppose I should take a step back, her argument in her brief opposing sanctions was one of the dumbest things I've ever read, right, and it said, "We attorneys have a First Amendment right to say demonstrably false stuff in lawsuits suits because of, you know, my freedoms" and bald eagles.

And and then it was justified by a statement that said, I would cite case law for this, but it would be so long as to offend the court. It literally said that. Right. And so the first question Judge Parker asked that we played was, counsel, I promise you I won't be offended. But would you like to cite those cases for me? Right. And then she engaged in a remarkable, like, four minute dissembling of, you know, whatever that is like. So I hope that answers the court's question, which Judge Parker is

0:34:43 Thomas: Jeez. Yeah, yeah. Oh, yeah,

0:35:19 Andrew: Like, nope.

0:35:19 Thomas: You can see the look on her face was please don't make me talk anymore. Please say that that answered the question. Nope. The judge was like, actually, no, that did not. That word salad did not, in fact, answer my very simple question of is there anything that a lawyer could say that It would go too far and wouldn't be covered by the First Amendment, according to your analysis. Is

0:35:28 Andrew: Yeah.

0:35:39 Andrew: There's sort of an uncomfortable silence. And then the court says, "Judge Parker says this." You can see the frustration, right? Because she's not even attempting to engage in the argument. "Says, I want you to take some time and look at," this is a case from the Sixth Circuit. Now, the Sixth Circuit, right, is binding over the Eastern District of Michigan. That's the circuit that sits over top of it. It's the Mezabov case, which you, I'm certain you're familiar with. Mezobov v. Allen, 411 F3rd, 712. And the court has noted that, quote, "it is unquestionable that in the courtroom itself, whatever right to free speech an attorney has is extremely circumscribed. Furthermore, it appears that no circuit court has ever granted an attorney relief under the First Amendment for this narrow category of speech because an attorney, by the very nature of his job, job voluntarily agrees to relinquish his right to free expression in the judicial proceeding."

0:35:40 Thomas: Oh,

0:36:30 Andrew: "Our Sixth Circuit sees no basis for concluding that free speech rights are violated by a restriction of that expression in filing motions and advocating for clients in court. An attorney is not engaged in free expression. She is simply doing her job," end of quote. Now, when the judge reads that from from the bench. Oh, and I should add, after reading that, that opinion, Judge Parker says, "I think that is, I was concerned and you have not done anything to put aside my concerns, Miss Lambert, that there is, in fact, a circumscribed right that an attorney has when they are acting in a capacity as a lawyer in the courtroom." Room And then uh, Stephanie Lambert Gentile says, "Well, okay, brief, we'll." That Um, her brief is 21 pages long. I feel real good about this. This is this is not, this does not count as a T3be.

0:37:15 Andrew: Question, would you like to guess how many times that brief cites to Mezibov versus Allen? Zero

0:37:21 Thomas: Please, look, I'm just, at this point, you know, I don't like to see the public speaker fail. I don'T like to be people be so dumb. Like, please tell me at least once. Just, ah, not even once.

0:37:32 Andrew: Times not Even.

0:37:35 Thomas: That the judge out of an abundance, out of an overabundance of kindness and patience that she did not owe to this person decided to be like an elementary school teacher and be like, sweetie, here's if you'd like to look at case law that that's nothing that lawyers have to look out when they're going to make an argument you know, like you have to base it on something here. I can direct you to You turn to your turn to this page and your reader and and read this case and then you could write a little brief about it and then I'll give you some extra credit if you do a real good job. Do a real Good job. And then she just ignored it. Didn't even didn't even cite it.

0:37:36 Andrew: Once yeah didn't didn't try to distinguish uh because you can't because the rule is super duper clear right, she did however finally give that that string site that if you recall, the only other thing in six hours that Judge Parker said to Stephanie here was, hey, also, I won't be offended if you give me that string site about how attorneys have fantastic First Amendment privilege. That's what necessitated the help in the first place, because she was, you know, mute on that subject. This actually has a 20 case string site in it. It's on page two, page one to two, and it cites 20 cases. It cites them for the proposition that, quote, in more than 20 Supreme Court cases, sidebar, this is she cites exactly 20, not more than20, but whatever. Over the past five decades, one or more justices has asserted or assumed that a lawsuit is a petition and is therefore covered by the right to petition the government for grievances under the First Amendment. Without a single colleague disputing the premise and then

0:38:34 Thomas: Yeah. Oh, God. Oh my god so

0:39:21 Andrew: There's a list of the 20 cases, yeah, right, I mean, it, it is, so let's start off with it.

0:39:23 Thomas: It's not even the cases are decided it's just someone might have said some dicta that another justice like didn't bother to answer is that what you did oh my

0:39:33 Andrew: Correct, uh, and that the dicta is nothing more than a, a complaint is part of a petition for grievances before the government, and therefore forecovered by the First Amendment, nobody would dispute that because it's true. The question is, is that complaint filed by your clients or is it filed by you, right? And the whole point of the Mezabov case is, yeah, you are acting on behalf of your client's right to petition the government for redress of grievances. So you, as the lawyer, do not have or have deeply circumscribed rights as to what you can say in facilitating your client in validating their rights. It's not about, could you imagine? I mean, suppose I went into court? And my client said, okay, I want you to oppose this injunction. And I go, great. I also have an 87-page screed about international Jewry that I'd like to add in. And my claim would be like, yeah, maybe skip adding in the protocols of the elders of Zion. Yeah. And I tell my client, yeah,

0:39:49 Thomas: God right right right sure right nope First Amendment First Amendment I'm being being oppressed. Witness the oppression inherent in the system.

0:40:41 Andrew: Look, I have a right as a lawyer to speak. I have the right, I so desire, to publish serially on Twitter the Protocols the Elders of Zion.

0:40:46 Thomas: Yeah. And the judge has a right to say, sir, this is a Wendy's.

0:40:54 Andrew: Exactly, exactly, exactly. Literally nothing in Stephanie Gentile's brief, Stephanie Lambert Gentile's brief, seems to even be aware of that argument.

0:41:03 Thomas: It's so bad. Andrew, often

0:41:04 Andrew: Yeah, you

0:41:05 Thomas: You'll be like, ah, Thomas could be a better lawyer than this person. I'm like, yeah, but probably not. Cause you know, I still don't know a lot of the ins and outs. I am a better lawyer than that. I don't sorry. I absolutely could do a better job.

0:41:13 Andrew: Are absolutely unquestionably. And by the way, I know this because once again, David Fink has done research that I didn't do. I was like, how is she involved in all this? Turns out Stephanie Lambert Gentile is part of the right-wing freak show. Right. Right. This is on page 14, footnote three of the city of Detroit's brief here, which, again, all of these will be linked in the show notes. We've uploaded all of them to our Web site. That footnote says directly contrary to Ms. Powell's claim. Right. That's the claim that only Sidney Powell and Howard Kleinhandler did any of the work. Stephanie Lambert Gentile, one of the local attorneys who Powell seeks to shelter with her 11th hour magnanimous claim of responsibility, appeared on The Gateway Pundit the day after the sanctions hearing where she admitted that she was not simply hired as local counsel. She, quote, reached out to Sidney Powell team and the Rudy Giuliani team to provide evidence, end quote, of supposed election fraud. And there's a link. She then appeared on One American News Network on July 14th, 2021. Right. That's two weeks ago and promised.

0:41:31 Thomas: Right. No,

0:42:21 Andrew: Again, I want to I would emphasize two days after the sanctions hearing appeared on One American News and promised that new suits will be filed in Michigan and other states as well. So spare no sympathies for Stephanie Lambert Gentile.

0:42:36 Thomas: This person's The Worst and

0:42:38 Andrew: She's a garbage person committed to the overthrow of democracy and repealing her. Disbarment is too good.

0:42:47 Thomas: Is a Terrible lawyer Not

0:42:48 Andrew: Good. Yeah.

0:42:49 Thomas: Even one of the competent Evil geniuses, not even close.

0:42:50 Andrew: Yeah, building our way up to I might describe as the only superficially plausible argument in any of these briefings. Not And surprisingly, it was submitted by Donald Campbell, the lawyer for all the rest of the Kraken team.

0:43:06 Thomas: He the one that I said was kind of convincing? Yeah, yeah, okay. Not surprising.

0:43:08 Andrew: Yep. Kleinhandler, Powell. This is argument. And it's a very, very technical argument. But sometimes technical arguments win, win, it right? Is this, in general, courts have imposed a strict compliance rule with Rule 11, right, and we've talked about that. You have to serve the motion to the other party 21 days in advance, and the purpose of that is to protect litigants from sanctions wherever possible, So right? In order to mitigate what might be the chilling effect of saying, hey, if you file something so stupid it is not even justified by a good faith basis to extend the law, we're going to sanction you from that.

Order In to say, well, we do want to encourage, the right, Sidney Powell Brown v. Board of Education argument, We right? Do want to encourage lawyers to be creative and to take cases on behalf of oppressed minorities and in situations where the law seems stacked against you. So the strict procedural requirements of Rule 11 mean that, um, okay, you try, you make an argument, then opposing counsel says this argument is so frivolous and so bad that we're going to sanction you unless you pull it, and you look at it in kind of the sober light of day and you get three full weeks, that's a long time, right?

You get three full week to say, all right, I'll withdraw, right, I, yep, I did a bad court thingy, uh, my bad, I'll withdraw the pleading and then there's no sanctions, right, no harm, no foul, you get to go for again, I'm trying to make the best case I can for Campbell's argument because I think you're not going to have any too much of a problem here, so Campbell's agreement is under Rule 11 subsection c2, so subsection b is the one we keep quoting, that is the lawyer's duty duty to investigate that

0:44:01 Thomas: Yeah.

0:44:50 Thomas: Case.

0:44:50 Andrew: They clearly did not do, right? Subsection C2 says a motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11b. The motion must be served under Rule 5, but it must not be filed or presented to the court if the challenged paper, claimed defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time that the court sets. That's and that is called the safe harbor provision of Rule 11. And it has led to the practice of what we call the safe harbor letter, right? And that is I send a letter over to opposing counsel that says, hey, man, we are going to file the attached Rule 11 motion unless you withdraw it because you're monster, and and you get the full three weeks.

0:45:38 Andrew: And there are a bunch of cases in which even though the rule does not say it has to be accompanied by a letter, courts have helped. Yeah. If you don't if you just send the pleading, if you Just send the motion over to the other side without any introductory letter, that's not sufficient to comply with the spirit of the rules. And we're going to say that's a bad motion thingy. We're going deny it. Right. Right. We're going to say, nope, we want you to strictly comply with the procedural requirements. Now, I need to tell you, Fink complied with he sent both a safe harbor letter that said, hey, we're going to file the attached and he sent the motion. He attached that actual motion.

0:46:23 Thomas: Closed all.

0:46:23 Andrew: Yeah.

0:46:24 Thomas: Set. I.

0:46:24 Andrew: You'd think it would be case closed. Um, here's the argument that that Howard Kleinhandler is is making, um, and I'm curious your your thoughts on it. The argument is, sure, but you only sent over the motion in your December 15 email, you did not send over the brief that you filed in in connection with with that motion. And under the local rules, you have to file a motion with the brief in support of that together. So you didn't comply with the local rule. So therefore, this was not good service. So, therefore, you didn't comply with Rule 11. And by the way, Rule 11, the motion, you know, the procedural defects in Rule 11 should be applied, right.

0:47:19 Andrew: We shouldn't just, you know, say, well, it's enough and as good. Right? So, you accordingly, then the the 21 day safe harbor period did not commence until January 5th, 2021, which was the day you actually filed the Rule 11 motion with the supporting brief. We withdrew our complaint on January 14th. That's nine days later. So therefore, you can't sanction us under Rule 11. What do you think of that argument?

0:47:48 Thomas: Don't know, man, I have no idea, you're the right lawyer, this is the kind of thing that I, it sounds super like get out of jail free for technicality, but I don't know, sometimes the law is that.

0:47:58 Andrew: Yep. I'm here to tell you happily that this is not going to be a meritorious argument. It's very clever. But what he's done is he's smashed together two separate requirements, right? Right. So the local rule 7.1 D1A says that each motion must be accompanied by a single brief or will be rejected by the court. Right. So in other words, when you file a motion, you have to file a brief. So the motion, I guess I should have taken a step back on this one. A motion is the formal request for relief from the court? So right? Typically you might, happens all the time, you would say, I'm motion, I'm filing a motion for summary judgment. The motion would say defendants hereby request that this court issue a summary judgment in their favor on all counts for the reasons set forth in the attached brief.

0:48:04 Thomas: Thank God, but

0:48:57 Andrew: And then that attached brief, maybe 20 pages, maybe 100 pages. Right. So the motion itself is only a couple of pages long. And then the attached brief sets out all of the arguments and explanation as to why the relief should be granted here. Here, it is very, very, very, very clear. Well, I want to say two things. Number one, there has never been a case in the sixth circuit or elsewhere dismissing a rule 11 sanctions on the grounds that, the party against whom sanctions were sought did not receive both the motion and the accompanying brief, right? The plain language of 11 C2 just says you have to get the motion, right?

And when you look into the rationale in cases that throw out sanctions, they say that the reason you have to give them the brief is to let them know what it is you want them to withdraw so that they can take full advantage of the safe harbor provisions? So right? That they get the full 21 days, they can go look back over it, and that's why Rule 11 is unavailable when you don't serve the safe harbor letter. If you don't let them know, hey, this is the exact thing that we think is a problem and that we want you to withdraw, then you can't respond to that in order to avoid sanctions. And sanctions are kind of a last resort sort of thing. So as it turns out, have read the safe harbor letter and the motion that it attaches.

0:50:35 Andrew: And while it does not the legal arguments, it absolutely contains each and every statement of all of the arguments that the City of Detroit claims are subject to sanctions pursuant to Rule 11b2, to right? It says, and this is a rather lengthy letter, it

0:51:01 Thomas: It Basically it makes Reference To It, or gives them enough information to know substantively what's going on, but doesn't technically, like, attach the document. Is that the so

0:51:09 Andrew: Technically attaches the only document that they need to attach, which is the motion itself, right, motion that was filed. It does not attach the brief. Rule 11 does not require you to attach the grief.

0:51:21 Thomas: He's just lying about what the requirement is?

0:51:22 Andrew: Well, what they're saying is that if you filed a brief in any other context without the accompanying motion, it would be be struck. So therefore, you should view this as if it should be. And the court is just going to say no court's ever said we can't give Rule 11 relief on the subject. And by the way, what the court would strike is very different than what you need to have notice, which is the whole point of Rule 11 in the first place. So complies with the black letter written rule as written.

Uh, this argument yeah is not going anywhere and and I need to tell you, like, that's the best that this argument, that that that any of them ever get, that the last thing that that I need to point out, that again, David Fink does an amazing job, is uh, because this caught my ear during the sanctions hearing, um, Howard Kleinhandler, when asked the basis of you having relief in this case, cited an 1873 case and said, "Fraud vitiates everything," And that struck me as super duper weird. And I went and did a little bit of Googling immediately afterwards. And as it turns out, this is a big, stupid meme from like essentially sovereign citizen

0:51:35 Thomas: OK, now.

0:51:49 Thomas: Yeah, yeah. So nice try, but no cigar. Yeah.

0:52:43 Thomas: Gold

0:52:43 Andrew: Level logic on the right. Yeah.

0:52:45 Thomas: Fringe on the flag, yeah.

0:52:47 Andrew: Gold fringe on the flag. Case that they cite is a case called Throckmorton, and it has absolutely nothing to do with elections. You know, it is total bizarre nonsense. And as a result, the city of Detroit's supplemental brief, there is an entire section that says, oh, by the way, like all of these, you know, lawyers who are, we're arguing should be sanctioned for misconduct are continuing to engage in the same kind of misconduct. For example, section three, the header, This is fantastic. These attorneys ignored Michigan election law and procedures and support their claims with Internet memes rather than rigorous legal analysis.

0:53:34 Andrew: That's page nine. It'll be linked. I wish I had more time to go over it. But yes, Howard Klein Handler endorsed a sovereign citizen level gold fringe on the flag argument that no self-respecting lawyer would repeat in open court. And and so, yes, at the hearing itself on sanctions, Klein Handler made it more likely that he will be sanctioned. So there's so much more I could get into about how good this brief is.

0:53:34 Thomas: I

0:54:00 Andrew: I encourage all our listeners to read it for themselves.

0:54:00 Thomas: Think the only thing left to do is take bets on, like, the over-under of the sanctions sandwich. Will we get sanctions from sanctions, or sanctions, sanctions, sanctions, sanctions? How many layers of incept-sanction, incept-sanction, how many players, Andrew, will we get? One layer, two layers, three layers?

0:54:20 Andrew: I think we will get at least two layers of sanctions. I think we will get sanctions related to Rule 11, and I think we will give inherent sanctions related to the nonsense of arguments that were advanced at the hearing itself. And I hope that we get both the fraud vitiates everything and Stephanie Lambert Gentile is like, does that satisfy the court? No. I can continue to give you word salad that doesn't and answer lots of questions um

0:54:21 Thomas: Nice. Delicious. Yummy.

0:54:38 Thomas: Oh god. Nope. Ah. Well, these

0:54:53 Andrew: Great

0:54:53 Thomas: Consequences, these sanctions hearings, they are doing a lot to uh refresh my faith in the law and lawyers. So again, encourage everybody to check out the Law'd Awful Movies, and uh, also, uh, you know, feel feel good about good people in the the law, especially that judge. She's great. Oh, so fun.

0:55:01 Andrew: Absolutely

0:55:11 Clip: And thank you, Let's go!

0:55:13 Thomas: Now It's time to thank our new patrons at patreon.com/law, and it's my turn to go first. I will say, tons of new patrons. Thank you guys so much. Um, I hope you're enjoying the, uh, Law'd Awful Movies that we, you know, I know we keep advertising it on this episode, but it's because it's very relevant, and it was very good. So I hope you're enjoying it and asking those questions in the Patreon Q&A thread. That's going to be a ton of fun. The ad-free shows each and every episode and the reordering of the parts at the end so that you get the T3B first. Uh, I hope you're enjoying all that. Thanks so much for pledging. Thank you, too, Bradley Parsons, Elderly Pepper, Hunter, William LaFrance, Lauren Leslie, Megan Muse, Gerakion, Denmark, you can have Skåne back. There's a, sorry, symbols that I can't read.

0:55:13 Andrew: Thank

0:56:00 Thomas: Who Knew I Could Love Someone Elses Zoom Call This Much? Yeah, there you go. Lifetime Conservative Being Pulled Begrudgingly To The Left by Facts and Logic, wow, congrats, that's awesome, Taylor Freed, Jeff Atkinson, Quackers, Derpity, Juliet Fee, Ham Burger, Cory Lyerly, FrankSensei, SlackerSavior, uh, DitIsNietMijnNaam, sorry if I didn't pronounce that right, Trent Hibbarrd, Paula Peffer, Phil Dougherty, MillsInLondon, ladlibertine, Kathleen Connell, Lesley Lonergan, Jeremy Brum, SaltySeattleDriver on YouTube wants stronger driver training and stricter licensing regulations. Oh, cool. Michael Coates, Still Want Willkie, and Dave Presson. Your turn, Andrew.

0:56:50 Andrew: You to Robin Daugherty, Buzz Bomb, Jessica Adams, Paul Arndt, 2 Nerds in a Pod A Video Game Podcast. Ooh, I know there won't be a Texas live show, but I can dream. Hey, you know, that's not necessarily the case. Heather Skinner, Raine Serrano, Mitch Gresko, Adam Morris, lilibet, Ghost 7, thanks to Stephen Joseph, Elizabeth Relins, Norrick, Daniel Cohen, Phil Richardson, Tomasz Dudziak from Poland. And I'm sure I apologize for that mispronunciation. Sam Mast, Canadian Idiot. Hey, that's self-described. I'm, I'm certain. I'm you will. Have great taste in podcasts. So Tyler Larson, Jim Early, Jennifer's Research and Running Club - Burn and Learn! I like that.

0:57:35 Andrew: Cordy Crawford, Joseph Moore, Fashun Smith, a string of unpronounceable characters, Sad Elf, Rachel Tan, and becoming a patron because your ads aren't as creative as the ones on scathing also always shares really valuable information. So it's worth, so it's more than worth it. That is an outstanding endorsement and also fair criticism. And Jake Dorset, thank you all so much for supporting the show.

0:57:53 Thomas: That's fair. All that is fair.

0:58:00 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:58:06 Andrew: Yep.

0:58:07 Thomas: Now it's time for T3BE. I... oops... I... pork my streak... oops.

0:58:13 Thomas: I broke mine streak, but maybe I can re-streak to pork again at a later date.

0:58:18 Andrew: All. Right, Thomas, a consumer from State A filed a $100,000 products liability action in federal court

0:58:25 Thomas: With the state is this just Hold on, is this just a federal court thingy, like, section of the bar exam, or what's going on here?

0:58:26 Andrew: Yeah I know I You know, sometimes you're gonna run a questions in a row, so

0:58:34 Thomas: All right I guess sometimes it's been a fake out, so maybe it's not

0:58:38 Andrew: Consumer files a $100,000 products reliability action in general court against a manufacturer incorporated and with its its principal place of business in State B. The consumer claimed that a flaw in the manufacturer's product had resulted in severe injuries to the consumer. In its answer, the manufacturer asserted a third-party complaint against the product designer, also incorporated and with its principal place of service in State D. Believing that the consumer had sued the wrong defendant, the manufacturer claimed both that the designer was solely responsible for the flaw that had led to the consumer's injuries and that the manufacturer was not at fault. The designer is aware that the manufacture did not follow all of the designer's specifications when making the product. Which of the following arguments is most likely to achieve the designer goal of dismissal of the third party complaint?

0:58:48 Thomas: Okay oh wow okay okay

0:59:31 Andrew: Yeah, this is an interesting question. A, the court does not have subject matter jurisdiction over the third-party complaint because both the manufacturer and the the designer are citizens of State B. B, the manufacturer failed to obtain the court's leave to file the third-party complaint. C, the manufacturers' failure to follow the designer's specifications caused the flaw that resulted in the consumer's injuries. Or D, the manufacturer's third- party complaint failed to state a proper third-party claim.

0:59:34 Thomas: Yeah okay okay I think this is another one that I just have no chance at. I... I'm gonna give it my best, but I think it's going to depend on some rules that I'm not going to know the specifics of. There's a lot here, so this is... it's kind of a federal jurisdictiony thingy. Like, I think answer A is the most... like, that okay, so consumer, State A, hundred thousand dollar action against, uh, manufacturer, State B. They claim flaw in the product, severe injuries, okay, got that. The The manufacturer says, no, no, the designer, who is also in the State B, so that's an interesting complication, they're responsible for it. And you're like, you got to sue them because, you know, we didn't design it, sue them. And then it says the designer is aware that the manufacturer did not follow all the designer's specifications when making the product.

1:00:47 Thomas: I actually think that's not going to matter, but I could be wrong. Because, here's why I think it's not gonna matter. It says, which of the following arguments is most likely to achieve the designer's goal of dismissal of the third party complaint? And when you're just dismissing a complaint, I don't think, again, it could be out on a limb here. I don'T think you're going to get to the, uh, to the discovery phase. I donT think you'RE going to GET to the like, well, you know, here, did you actually do this? We'RE going TO get into the facts.

I THINK if you'RE trying to see which is most LIKELY to achieve a goal of dismissing the problem with the complaint itself. You're going to be like, it's either going to be wrong jurisdiction or you didn't do a court thingy correctly that Thomas isn't going to be able to figure out. So that's why, that's kind of where I'm leaning. Let's see. Okay, oh, here we go. "A court does not have subject matter jurisdiction over the third party complaint because both the manufacturer and the designer are citizens of State B." Okay, I've thought through this, and this A seems pretty plausible to me.

Because, reminder, we're in federal court, and then in the answer, so it says the manufacturer, in the answers to the complaint, asserts a third-party complain against the product designer, also incorporated in State B. So I think it's saying if you're going to file a complaint, so if the manufacturer is going to sue the designer, we shouldn't be in federal court because you're both in State B.

1:02:13 Thomas: And that seems pretty plausible to me. I'm trying to work out how this should work, though, because it feels like you'd still want to be able to like assert this. You know, you still want to being able to say like, yeah, we're suing somebody else for this. You should still sue somebody else for this, even though it's in federal court and you should be suing in state court. You know, like, so I'm not, that's my only doubt about this, is that it still seems like you should be able to assert this in response, it seems to me, but maybe you have to do so in a different way. Maybe that, maybe you can't do it in your answer. That could be. So A is very plausible. The court, so this shouldn't be in federal court because they're both in state B and you should take it to state B court. So that's, I like that one. B, the manufacturer failed to obtain the court's leave to file the third party complaint.

1:03:02 Thomas: Oh, gosh. See, that could also be it, though. That could be like the same kind of answer, but slightly different. So maybe you got to say like, "Hey, can we file a third party complain here, even though it's in state court?" And then we'll take that on as a part of this... you gosh, so it could be B. This is why I'm not going to get it. That maybe it's... maybe it's kind of the same reasoning, but B is the better answer there because you got to ask for permission first or something. Maybe. See, the manufacturer's failure to follow the designer's specification caused the flaw... see, I just don't think it's C at all. I think C is an attractive distractor because we're not going to get to that phase, I believe. I'm, who knows, but I don't think that's it. So I'm dismissing C. C is no, I don't think it's it. D, the manufacturer's third-party complaint failed to state a proper third-party claim. What? Yeah, I just, D is, I, oh man, it could be D.

1:03:53 Thomas: I just don't know. Like I'm really not sure how me with the information I have, how I would evaluate that. It seems like a proper third party claim. You're saying like, oh, actually I didn't, you know, it's the designer solely responsible for the flaw. I don't know. It seems Like a proper claim, but maybe there's some technical reason it'll be not a proper claim. I, geez, that, so I'm going to dismiss D and I have no confidence in whether or not that's right. Right. So I'm between A and B get, what's bothering me here is I know in the past it's been like, sue everybody and let them sort it out. Like we've talked about that, whether it's a, you you know, contributory negligence kind of thing. And in the past, it's not up to the plaintiff to just know exactly who's responsible. Like they don't need to know, Oh, was it designed to be bad?

1:04:40 Thomas: Or did you just make it incorrectly, that how would they know that? They don't, you know, so it's, it's been like, okay, this lawsuit should go forward and then you you sue each other later and figure out who's responsible. And the jurisdiction-y thing is interesting, but that feeling leads me to believe that it could actually be D, where like that, like somehow that's why it's D is like, no, you actually, you didn't state why this should be a good third party claim, but I don't know. I'm just so in the dark on this one. I think I'm going to to stick to my A and B answer, and I have to pick one so that the coin can beat me. I don't know, B seems like the kind of answer that's not normally... I can't think of a time where it's been like, well, you didn't obtain leave to file the third party complaint.

1:05:27 Thomas: Maybe it is. I just, I feel like that's not often what these questions come down to. I'm going to go with A. My A is my final answer. I want see what the coin says. See if the coin agrees with me for once. The coin agrees. Okay, the coin and I say A. Zero percent confidence. This is one of the hardest questions I think we've ever had. The only one I feel comfortable eliminating is C, so watch that be the answer. So that's my final answer.

1:05:51 Andrew: All right, and if you'd like to play along with Thomas and the coin, this is a chance, if you're keeping your own stats, to maybe gain ground on both of them, or, you know, maybe they both got it right and there's nothing you can do yeah who knows, uh, that is not a hint. Yeah, uh, you know how to play along with this, just share out this episode on social media, include the hashtag T3BE, include your answer, your reasons therefore, we will pick a winner and shower that person with never-ending fame and fortune. Fame and fortunate not guaranteed. Thank

1:06:01 Thomas: Hope there's no hint there yeah and And that's our show. Thanks so much for listening. We'll see you on Tuesday, and we'll see you sometime next week with an in-person, at least for Andrew and I, Q&A on YouTube. Check it out, and we will see you then.

1:06:30 Andrew: Until then.

1:06:31 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.

1:07:04 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.