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

[AnOminous]

What makes this really confusing is that the district judge has already rejected summary judgment, the appeals court's reasoning for accepting jurisdiction over the appeal appears to suggest that they wouldn't have jurisdiction over an appeal of the district judge rejecting the motion to dismiss under Colorado law, and then their brief argues that its basically summary judgment.

A SLAPP motion isn't a summary judgment motion but uses basically the same standard of evidence. It's also sometimes called a "special motion to dismiss" like in California. I think he'd probably be entitled to file a normal motion to dismiss after this. If not, though, it goes to discovery and at the conclusion of that comes a "real" motion for summary judgment.

I'm not seeing what comes out in discovery that will actually help Nick much though, short of it actually comes out that he really does suck little boys' dicks after all.

 

[elb]

Did anyone happen to tune into the scheduling conference yesterday?

 

[Useful_Mistake]

Did anyone happen to tune into the scheduling conference yesterday?

No, because it was canceled:

 

[Dixieland Buckaroo]

No, because it was canceled:
View attachment 5460052

I assume the appeal takes precedence over anything happening in Judge Fischer's court.

 

[AnOminous]

I assume the appeal takes precedence over anything happening in Judge Fischer's court.

Only a proper appeal strips the trial court of jurisdiction, such as, for instance, a direct appeal pursuant to a notice of appeal of a final judgment. This is not such an appeal. Denial of a motion to dismiss is not in Minnesota generally an immediately appealable order, and the odds of finding jurisdiction are slim at best.

My personal opinion is that unless and until the appeals court seizes jurisdiction, rather than merely considering whether it even has it, the trial court retains jurisdiction, and without a stay, any orders it has issued (if any) would remain in effect.

That said, Fischer probably considers it prudent not to proceed immediately as it could create a huge mess if she proceeds to schedule discovery and then the appeals court suddenly comes back and wants to hear the appeal.

I imagine it's going to get smacked down relatively quickly anyway, but if not, there will be a briefing schedule in the appeals court.

 

[TheClappening]

Literally the only one who I don't think is absolutely horrible is the strip-mall lawyer from Vic's case, and I believe that's only because I don't know enough about him.

Charged his client fairly, probably did the knockout blow to Vic's suit by pointing out Ty's self-own, had some flair (he had an acrostic of something like "GO AWAY NICK" in a motion) without compromising his efficacy... I think he was a pretty good lawyer for this kind of shit show.

I'm not seeing what comes out in discovery that will actually help Nick much though, short of it actually comes out that he really does suck little boys' dicks after all.

Is there some equivalent of criminal mens rea in this kind of civil action.

Like, if Monty does objectively suck little boy dick, but Nick had no way of knowing that fact and threw out the accusation negligently/recklessly, would he still be liable? Or is truth always a defense even if Nick didn't know the truth?

 

[Useful_Mistake]

My personal opinion is that unless and until the appeals court seizes jurisdiction, rather than merely considering whether it even has it, the trial court retains jurisdiction, and without a stay, any orders it has issued (if any) would remain in effect.

That said, Fischer probably considers it prudent not to proceed immediately as it could create a huge mess if she proceeds to schedule discovery and then the appeals court suddenly comes back and wants to hear the appeal.

It does want to hear the appeal. The appellate court concluded that they have jurisdiction to hear it.

 

[Kosher Salt]

Like, if Monty does objectively suck little boy dick

Objectively? Likes and dislikes are by definition subjective, the only way to prove that Monty likes something would be to ask him, and Nick doesn't have to take Monty's self-serving word as gospel.

 

[Useful_Mistake]

New update on the district and the appellate level:

 

[AnOminous]

Is there some equivalent of criminal mens rea in this kind of civil action.

Generally actual malice, if that ends up the standard, requires something similar to a criminal mindset. It's more than mere negligence. It requires subjective doubt as to the truth or falsity of the allegation. That's a difficult claim to prove absent a really dumb admission or something that gives evidence of it, like a journalist who always vets his sources suddenly skipping that process for some dodgy source.

 

[TheClappening]

Generally actual malice, if that ends up the standard, requires something similar to a criminal mindset. It's more than mere negligence. It requires subjective doubt as to the truth or falsity of the allegation. That's a difficult claim to prove absent a really dumb admission or something that gives evidence of it, like a journalist who always vets his sources suddenly skipping that process for some dodgy source.

I guess the real question here is if truth is still an absolute defense.

Like your example, let's say Nick heavily researches the subjects of his shows (lol), but in this one instance, he just pulled "Montegraph sucks little boy dicks" out of thin air, in defiance of his normal standards, and spread the statement.

If false, that would be textbook reckless disregard. I'm just wondering, if the statement turned out to be objectively true but Nick had no way of knowing, if he would have any liability for it.

 

[AnOminous]

If false, that would be textbook reckless disregard. I'm just wondering, if the statement turned out to be objectively true but Nick had no way of knowing, if he would have any liability for it.

Generally truth is an actual absolute defense in the U.S., at least against defamation. There are some "penumbras and emanations" like false light where a true statement could be subject to liability, but that isn't even at issue here. I would almost say that never happens but then there was that Romeo Lacoste idiot who hired an even bigger idiot as a lawyer who sued for being called a pedophile and his lawyer admitted he actually was one in his filing.

 

[UncleTusky]

Generally truth is an actual absolute defense in the U.S., at least against defamation. There are some "penumbras and emanations" like false light where a true statement could be subject to liability, but that isn't even at issue here. I would almost say that never happens but then there was that Romeo Lacoste idiot who hired an even bigger idiot as a lawyer who sued for being called a pedophile and his lawyer admitted he actually was one in his filing.

And how does truth interact with intentional infliction of emotional distress? I can understand how being called a pedophile would be distressing irrespective of truth, but if it is true then I would argue that's on the plaintiff for being a diddler and not on the defendant for bringing it to light.

 

[AnOminous]

And how does truth interact with intentional infliction of emotional distress?

I honestly don't care because IIED is such a weird and unheard-of tort that it barely exists. It doesn't even matter.

 

[Useful_Mistake]

And how does truth interact with intentional infliction of emotional distress?

It doesn’t. Defamation cannot bring forth IIED claim (usually). IIED has higher requirements than any another tort. 8th circuit has noted that “It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” See Hanke v. Global Van Lines, Inc., 533 F.2d 396 (8th Cir. 1976). Defamation, especially one where the statement is true, cannot possibly raise to that level. There also must be real tangible and serious damages, like an “objective physical injury caused by the stress, [seeking] medical attention, [confinement] to [ones] home or a hospital, or [loss of] income.” See Russo v. White, 241 Va. 23, 400 S.E.2d 160 (Va. 1991) (out of circuit, but this generally is true everywhere). This is not merely speculation, cases that allow defamation still usually deny IIED. See, for example, Strauss v. Thorne, 490 N.W.2d 908 (Minn. Ct. App. 1992)

Minnesota court summed up this very well in this quote: “while some defamatory statements could be so outrageous as to sustain an action for intentional infliction of emotional distress, the particular statements [covering up a murder, suborning perjury, engaging in harassment and illegal investigatory activities, failing to investigate major crimes, and physically threatening witnesses] made against the FBI agent, a public official, were not utterly intolerable in a civilized society.” If all that is not sufficient, than what is? The court noted that “courts applying Minnesota law have been extremely cautious in allowing intentional infliction of emotional distress claims to go to the jury”. See Conroy v. Kilzer, 789 F. Supp. 1457 (D. Minn. 1992). That is generally true elsewhere.

To sum up and tidy of this mess of a comment into something approaching an actual point, courts hate IIED, and they hate Defamation with IIED more. False statements rarely amount to IIED, and true statements never.

 

[TheClappening]

I honestly don't care because IIED is such a weird and unheard-of tort that it barely exists. It doesn't even matter.

It wasn't IIED proper (if I understood the case right) but emotional distress did help Hulk Hogan bodyslam Gawker into the shadow realm.

 

[Captain Manning]

It wasn't IIED proper (if I understood the case right) but emotional distress did help Hulk Hogan bodyslam Gawker into the shadow realm.

The Jury awarded $60 million for IIED alone ($140 million total) in the Hogan case. Gawker filed for bankruptcy and ended up settling with Hogan for $31 million.

However, I don't know how applicable any of that is here, because that case stemmed from invasion of privacy and not defamation. I think different law was applied there. Certainly different than the actual applicable law that @Useful_Mistake is citing above. Gawker also forwent their appeal as a condition of the settlement, so we'll never know if what the jury did there was right.

Personally, like a lot of people, I maintain the IIED claim here is bullshit, but that the defamation per se thing is a different matter.

 

[Useful_Mistake]

I maintain the IIED claim here is bullshit

In a righteous world, filing an IIED claim for damages you admit you haven’t suffered and then admiting you need discovery to make up the damages, all that would result in sanctions and prison time. Sadly, we do not live in a righteous world.

 

[Your Starter for 10]

I mean Hulkster could easily show where his behaviour changed after the posting of his (ostensibly illegally recorded and obtained) sex tape inflicted emotional distress as he stopped making public appearances. Also, he had a pretty long history of saying how the situation, even before Gawker's publication, was making him depressed (so Gawker was actually doing the Intentional part of IIED (I'm pretty sure there was discovery where there were internal e-mails saying that they hoped he committed suicide because that would increase their views and shit)).

So you've got the four elements of IIED pretty well drawn out, with virtually no inference mental gymnastics needed from the court (Gawker was intentionally reckless, obtaining and publishing the tape was extreme and outrageous (I mean not to me or zoomers, but to normies and a court, it is), the publication caused the distress (obvously), and Hulkster suffered actual severe emotional distress (obvously here, you have to make a judgement call, but between the psych shit, the cancelled appearances, and just having a sex tape of you banging your buddy's wife posted online it isn't a real big stretch...even a Hulkamaniac has feelings).

Now IIED is fucking retarded at its heart, and should be covered under other parts of the law anyway, but you'd be hard pressed to come up with a more elementally sound case by a more retarded defendant.

In contrast, Monty has like none of those elements. Nick was ostensibly (and demonstrably) drunk, so t wasn't intentionally reckless. Talking shit online, even to the extent that Nick did isn't really extreme (although possibly outrageous, but that in itself isn't enough), there's nothing that Monty can point to to where Nick's words caused distress (I mean he can say it did, but I don't think a reasonable person would believe it), and further to that, I don't think Monty has or can show that he has suffered actual severe emotional distress (there's nowhere he can point to where his behaviour was affected, and I doubt he'd get anyone but a low-tier therapist to say that he had - and they'd be torn apart by any competent lawyer (c.f. Depp v. Heard(not for IIED, but for having an actually competent psychologist shredded on the stand))).

It's the dumbest and weakest part of Monty's suit, and he ought to tell his lawyer to drop it, cause he's just pouring money down the drain for every quarter hour that goes into it.

 

[Useful_Mistake]

(there's nowhere he can point to where his behaviour was affected, and I doubt he'd get anyone but a low-tier therapist to say that he had

Monty and his lawyer run on the novel theory that only Nick has evidence of Monty’s emotional distress damages, and that’s why they need discovery. You can read the hearing transcript, that’s literally their argument