Steve Quest (p/k/a Montagraph) vs. Nicholas Robert Rekieta & Rekieta Law, LLC (2023)

[AlSharptonPogrom]

Legal Genius Nicholas Rekieta is trying a wonderful new strategy of winning by deciding to straight up start ignoring appellate court orders

You used the term 'legal genius' incorrectly. Be Better.

Rekieta is eligble to declare himself incompetent by virtue of being so wet-brained (dipsomania) that he gets strokes.

 

[Useful_Mistake]

Nicholas claimed that the judge agreed that he and Montegraph are both public figures.

I cannot recall this. Did it actually occur?

From the judgement (attached)

incorrectly

How so?

 

[Telvanni]

An apology costs $0 Nick.
Then again, we're way past that point aren't we?

 

[AnOminous]

Nick ignored the appellate court order and did not file his memoranda

Literal pure and unadulterated retardation, incompetence, and arrogance.

There can't be much belief that it stands much chance of success, but I doubt he will cross the line of sanctionable frivolity by failing to do so.

Has Nick quit paying, or has Randazza dun goofed?

This is well below competent practice.

Randazza isn't just going to pull a no show unless it happens to be extremely special circumstances I cannot envision in this case.

Possibly, the very important witness known as Mr. Green was unavailable.

It has to be delayed, I find it extremly hard to believe they rage quit on the appeal already.

I certainly hope so, because shockingly bad practice actually upsets me to witness.

But remember the rule, lolsuits involving lolcows always have loljudges and lolyers.

 

[Balldo's Gate]

Reminder that:

• If Rekieta did not file a memorandum by yesterday the court may apply sanctions "including dismissal ofthe appeal", and anything filed late "may not be considered by the court"
• There was a requirement to voluntarily dismiss the appeal if they determined that the court lacked jurisdiction (one excuse gone)

I'm aware of that and don't actually agree with the judge on this. While SLAPP motions are generally treated according to the evidentiary standards of a motion for summary judgment, i.e. requiring something more than a scintilla of actual evidence to proceed, they're entirely different, as they occur before all but the most limited discovery in most cases (I think it was ludicrous to have multiple depositions before the one in Mignogna).

If it should have been treated as anything other than what it purported to be, it should have been as a motion to dismiss. And the model SLAPP is California's, which indeed calls it a "special motion to dismiss," as Randazza did in this case as well.

As it stands, though, Monty should have the opportunity to present some evidence for this IIED claim, as ridiculous as I think it is. My distaste for the tort aside, it is hardly outlandish practice to bring a claim like this along with defamation.

The reason why it was treated as a motion for summary judgement is because Randazza said that was what it was (link to the relevant rule added)

The Colorado Anti-SLAPP law is applicable through this motion, which is functionally a motion for summary judgment, under Minn. R. Civ. P. 56. The claims should be dismissed, and Defendants should be awarded their fees.

In Randazza's reply brief he explicitly asked for summary judgement if the judge concluded that CO law did not apply. This was a decision by Rekieta's side and the judge was just going off of what they said.

A judgment of dismissal, under the Colorado Anti-SLAPP law, is proper. However, even if the Colorado Anti-SLAPP law does not apply, summary judgment remains appropriate, no matter which state’s law is applied.

With respect to a motion to dismiss, IMO Monty appears to have at least stated an IIED claim to a sufficient degree of specificity that Rekieta must know what he is being accused of (and indeed does, because he's said it's ridiculous). The problem is that Monty has not provided any evidence of some of the elements beyond Monty saying so.

 

[AnOminous]

The reason why it was treated as a motion for summary judgement is because Randazza said that was what it was (link to the relevant rule added)

This may be seen as an exceedingly fine distinction, but while it is treated (evidence-wise) in the same manner as a motion for summary judgment, it is in fact a motion to dismiss. It was literally captioned as a "special motion to dismiss" because that is what it is.

The problem is that Monty has not provided any evidence of some of the elements beyond Monty saying so.

And he is not obligated to do so until discovery concludes. The only presumably dispositive motion yet filed was a special motion to dismiss based on the laws of another state which do not apply in Minnesota.

 

[John Andrews Stan]

I don't think Rackets or Randazza are actually that smart to begin with

Rackets definitely isn’t that smart.

But gimme a break. For whatever else you can say about Randazza — and I’ve said it all — saying he’s stupid is, well, stupid. Smart people do stupid things sometimes. That does not make Randazza as low IQ as Nick.

 

[AnOminous]

Smart people do stupid things sometimes. That does not make Randazza as low IQ as Nick.

Randazza is getting mountains of money from a retard for doing the retarded shit he's being paid to do.

An intelligent person would have apologized and retracted the utterly made-up and clearly defamatory dumb shit Nick said.

Seriously, "Holy fuck, I was drunk off my ass and said some insanely stupid shit! Sorry dude!"

But no he'd rather squander six figures to defend his imaginary "right" to launch absolutely vile accusations of child molestation against some random guy.

 

[John Andrews Stan]

But no he'd rather squander six figures to defend his imaginary "right" to launch absolutely vile accusations of child molestation against some random guy.

That’s why I’m glad Randazza is there to help him. Nick deserves the ruin he’s bringing upon himself.

 

[Dumpster dived waifu]

Still nothing? Is it now safe to assume they fucked up and missed the deadline?

 

[Kosher Salt]

The documents have finally dropped. Filing date for the appellant's memorandum & exhibit was the 25th at 3:49 PM local time, and the respondent's informal memorandum & proof of service was filed roughly 40 minutes later (4:31 PM).

Spoiler: Memorandum - Appellant

Spoiler: Exhibit 1 to jurisdictional memorandum

Spoiler: Memorandum - Informal - Respondent

Spoiler: Proof of Service

The clerk got around to entering them to the docket today at 11:27 AM and 11:30 AM local time (5-10 minutes ago).

 

[Useful_Mistake]

Main points of Nick's argument:





(images cleaned up by me)

Main points of Montagraph's argument:








(images cleaned up by me)

My thoughts. Both parties agree that Colorado's Anti-Slap is based on California's and thereby Californian caselaw is instructive.
Nick:

Montagraph:


Problem for Montagraph rests that California (and the 9th circuit) has recognized that denial of an anti-slap motion is immediately appealable under the collateral order doctrine. Nick indeed points that out. See:



And, indeed, Nick did not misrepresent the cases. See:

Zamani v. Carnes, 491 F.3d 990 (9th Cir. 2007)

I originally thought that Nick would lose on the jurisdictional grounds, but I am not so sure now. Seems like, on this issue at least, the Appellate court does have the jurisdiction to review the denial of his motion. That's pretty interesting

(images cleaned up by me)

 

[Your Starter for 10]

IANAL and also I'm not a lawyer, but I'm just going to re-iterate my feelings and let any of the native legalese speakers correct me.

This seems like a huge, pointless waste of everyone's time, with only a tiny chance of success. The appellate judges would have to really go out on a limb to grant this motion. Whereas the next motion, a regular motion to dismiss is probably 50/50 (even now that Rekieta has probably passed off the judge more than Monte has). Although I guess there is some debate as to whether that would be before or after discovery - hopefully after, as while discovery won't really affect anything trial or motion-wise, it could potentially be hilarious).

And this current appellate level motion won't even cost Monte much as the retort should just be a one page reply that says "This is a Colorado law. Minnesota found this law to be unconstitutional. And also fuck Colorado." So maybe two hours of lawyer time. I mean of course Monte's lawyer will fuck it up and charge more, but theoretically speaking, he shouldn't even need to file a response.

 

[AnOminous]

The documents have finally dropped. Filing date for the appellant's memorandum & exhibit was the 25th at 3:49 PM local time, and the respondent's informal memorandum & proof of service was filed roughly 40 minutes later (4:31 PM).

That doesn't surprise me. It would be really un-Randazza-like to Beard up the case like that.

 

[Useful_Mistake]

And this current appellate level motion won't even cost Monte much as the retort should just be a one page reply that says "This is a Colorado law. Minnesota found this law to be unconstitutional. And also fuck Colorado.

Yeah, but he filed an 11 page response in which he conceded on very important points for Nick. So, this won’t be cheap for Monty either

 

[Spaded Dave]

Yeah, but he filed an 11 page response in which he conceded on very important points for Nick. So, this won’t be cheap for Monty either

I like that because I'm on team "It gets sent back to the lower court who then decides that even under Colorado law Nick is still fucked".

 

[Your Starter for 10]

Yeah, but he filed an 11 page response in which he conceded on very important points for Nick. So, this won’t be cheap for Monty either

Oof I missed that. Well it wouldn't be a lolsuit without at least one lolyer displaying his incompetence over an unnecessary document at least ten times longer than it needs to be.

 

[Useful_Mistake]

I like that because I'm on team "It gets sent back to the lower court who then decides that even under Colorado law Nick is still fucked".

That’s my take on it as well, I think the appellate court should rule it has jurisdiction to hear this appeal, rule in Nick’s favor and order the lower court to apply Colorado law, and then Colorado should still deny his anti-slap motion because as Defamation is an exception to the First Amendment (R.A.V. v. St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) ) naturally, false statements of fact would not be in “furtherance of the person's right of petition or free speech under the United States constitution” (Colo. Rev. Stat. § 13-20-1101)

Now, that’s not to say that Nick couldn’t somehow prevail on trial, but I don’t think he’d win on anti-slap.

Oof I missed that. Well it wouldn't be a lolsuit without at least one lolyer displaying his incompetence over an unnecessary document at least ten times longer than it needs to be.

My take on their memorandas:

My thoughts. Both parties agree that Colorado's Anti-Slap is based on California's and thereby Californian caselaw is instructive.
Nick:

Montagraph:


Problem for Montagraph rests that California (and the 9th circuit) has recognized that denial of an anti-slap motion is immediately appealable under the collateral order doctrine. Nick indeed points that out. See:



And, indeed, Nick did not misrepresent the cases. See:

Zamani v. Carnes, 491 F.3d 990 (9th Cir. 2007)

I originally thought that Nick would lose on the jurisdictional grounds, but I am not so sure now. Seems like, on this issue at least, the Appellate court does have the jurisdiction to review the denial of his motion. That's pretty interesting

He also conceeded to 2/3rds of Nicks points here:

 

[Kosher Salt]

I think the point that I found most significant was that apparently the collateral-order doctrine's 2nd requirement, that the order "resolves an important issue completely separate from the merits of the action" (which seemed questionable to me), has been considered by courts which determined that denial of the anti-SLAPP motion does resolve an issue that is separate from the merits of the action, because denial of the motion is not an indication that the case has merit.

I think dismissal of a case on an anti-SLAPP motion would be indicative that the case lacks merit, but the reverse is not true.

Admittedly I only kind of skimmed the respondent's memorandum. The court seemed inclined to dismiss the appeal already, so Monty's memorandum is basically preaching to the choir. If Nick's memorandum wasn't convincing, I'm sure the court will tell us why.

 

[AnOminous]

Problem for Montagraph rests that California (and the 9th circuit) has recognized that denial of an anti-slap motion is immediately appealable under the collateral order doctrine. Nick indeed points that out. See:

This is essentially the argument I predicted, because it is the only sensible argument that the collateral order doctrine applies (like this post among others). This would be essentially rock-solid. . .in a state with an anti-SLAPP law. Generally such states (like Texas and California for that matter) provide for an immediate appeal either by the plain language of the statute or in the federal system by court-created doctrine (like a qualified immunity argument).

The long and short of it is that an immunity argument (like SLAPP or "stand your ground" in Florida) is not merely a defense but an actual immunity to standing trial at all. Therefore, since the right would be destroyed by going forward, an interlocutory appeal is proper.

I think Monty has the best of it here because there is no such right in Minnesota, which has in fact done away with its SLAPP statute on adequate and independent state grounds based on its own state constitution, which gives a higher degree of protection to the right to a jury trial than some other states.

I also don't think Nick can argue around the fact that since the immunity itself doesn't exist, clearly the right to an immediate appeal doesn't either.

There's a bit of a legal ouroboros here in that the court may actually have to address the merits of this argument to conclude it doesn't have jurisdiction, but I think that conclusion is inevitable. The fact the panel ordered memoranda on the issue indicates they are leaning that way. My personal preference under the circumstances (not based on my view of the parties but my general opinion on appellate jurisprudence) is that they do not address it at all but merely conclude per curiam that they don't have jurisdiction and don't go into it.

I could actually see them addressing it, though.

What I do not see is Nick winning.

I'm not really criticizing Randazza here. He's making the only argument he can really make under the circumstances.

I think dismissal of a case on an anti-SLAPP motion would be indicative that the case lacks merit, but the reverse is not true.

Nevertheless, the general rule is that the denial of an anti-SLAPP motion is immediately appealable because of the nature of the right at issue (immunity from suit).