Victor Mignogna v. Funimation Productions, LLC, et al. (2019) - Vic's lawsuit against Funimation, VAs, and others, for over a million dollars.

[Sheryl Nome]

Somebody mentioned the Kimberlin v. Walker peace bond case in relation to this one a few days ago. I had never heard of it before, but the judge (Cornelius Vaughey) eventually got reamed out by the S.C. and has now become a laughing stock of internet law for telling the defendant in this case to basically shut the hell up, and to disregard a well established supreme court precedent because they are in his courtroom and it is ruled by Vaughey Law™ (I'm sure all the US lawyers here know this, I am just laying it out for folks who don't).

The exceptional thing about this is someone had the foresight to surreptitiously record this hearing, and as I was listening to it, it was exactly how I had imagined Chupp's court to sound like. Have a listen, it's only about 25 minutes, but it is truly exceptional.

Aaron Walker Peace Hearing

Court audio from Kimberlin V. Walker - Peace order - May 19th, 2012 Plaintiff: Brett Kimberlin Defendant: Aaron Walker (http://www.twitter.com/aaronworthing) Peace Order #: 0601SP019792012 Warrant

soundcloud.com

Chupp didn't do anything nearly that egregious.

 

[Evil Bunny]

Chupp didn't do anything nearly that egregious.

Agreed, Chupp didn't say anything like that. However ALL sides in the TCPA hearing made MANY MANY unforced errors. Plaintiff, Defense and Judge.

 

[DinkyCowSow]

TCPA is not a trial on the merits of the case. For it to be a trial on the merits, which is a specific legal term of art, the court would have to hear substantive arguments and evidence on the matter at hand (under the preponderance standard), and to render a judgement. TCPA does neither of these things: evidence and arguments are prima facie for the plaintiff, evidence is merely clear and specific, and the court does not render judgement. The court may dismiss causes of action for lack of a prima facie case, but it does not render judgement on those causes. There is no merit in the judicial sense to be tried at this point.

Nor is it summary judgement, as has been pointed out previously, as it does not consider the preponderance of evidence for all parties to the case. Even if it were summary judgement, that would then render it not a trial by the merits in any case, as summary judgement takes place before trial, when the evidence so clearly favours one party (again, under the preponderance of evidence standard, not merely prima facie) as to allow the court to render judgement without recourse to trial.

You are wrong about the standards for a normal summary judgment in Texas. They do not use preponderance of the evidence. The judge actually CANNOT evaluate the evidence to determine if it is true, or try to balance the evidence. Even if the judge KNOWS that the evidence presented to him is wrong, so long as both parties agree on it then the judge cannot overrule it. The moving party puts forward the set of undisputed facts that both parties agree on that would entitle them to win their case immediately. The responding party, if they have any facts that would disagree with that, puts it forward and the judge denies the motion (the judge does not get to try and decide which set of facts he likes more).

 

[Takayuki Yagami]

Somebody mentioned the Kimberlin v. Walker peace bond case in relation to this one a few days ago. I had never heard of it before, but the judge (Cornelius Vaughey) eventually got reamed out by the S.C. and has now become a laughing stock of internet law for telling the defendant in this case to basically shut the hell up, and to disregard a well established supreme court precedent because they are in his courtroom and it is ruled by Vaughey Law™ (I'm sure all the US lawyers here know this, I am just laying it out for folks who don't).

The exceptional thing about this is someone had the foresight to surreptitiously record this hearing, and as I was listening to it, it was exactly how I had imagined Chupp's court to sound like. Have a listen, it's only about 25 minutes, but it is truly exceptional.

Aaron Walker Peace Hearing

Court audio from Kimberlin V. Walker - Peace order - May 19th, 2012 Plaintiff: Brett Kimberlin Defendant: Aaron Walker (http://www.twitter.com/aaronworthing) Peace Order #: 0601SP019792012 Warrant

soundcloud.com

Chupp might have fucked up in ways that are going to bite him hard, and he appears to know it, but that incedent is an order of magnitude more insane.

 

[Lord Xenu]

Chupp didn't do anything nearly that egregious.

I'm definitely not arguing that he did, just his tone and general attitude towards the lawyers that I heard in my head while reading the TCPA hearing transcript (well before I had ever heard of Kimberlin) was clearly echoed in the audio of the Walker case (excepting the Texas vs East coast accents).

I know some of you guys who were there know what it sounded like, but that's how I had imagined it went (with a few more "ya'll"s tossed in).

 

[TherapyMan]

You are wrong about the standards for a normal summary judgment in Texas. They do not use preponderance of the evidence. The judge actually CANNOT evaluate the evidence to determine if it is true, or try to balance the evidence. Even if the judge KNOWS that the evidence presented to him is wrong, so long as both parties agree on it then the judge cannot overrule it. The moving party puts forward the set of undisputed facts that both parties agree on that would entitle them to win their case immediately. The responding party, if they have any facts that would disagree with that, puts it forward and the judge denies the motion (the judge does not get to try and decide which set of facts he likes more).

You have to be trolling if you can successfully describe summary judgment, yet still maintain that the TCPA, which is a dismissal process determining the sufficiency of the pleadings, is a summary judgement, either literally or practically.

 

[teriyakiburns]

You are wrong about the standards for a normal summary judgment in Texas. They do not use preponderance of the evidence. The judge actually CANNOT evaluate the evidence to determine if it is true, or try to balance the evidence. Even if the judge KNOWS that the evidence presented to him is wrong, so long as both parties agree on it then the judge cannot overrule it. The moving party puts forward the set of undisputed facts that both parties agree on that would entitle them to win their case immediately. The responding party, if they have any facts that would disagree with that, puts it forward and the judge denies the motion (the judge does not get to try and decide which set of facts he likes more).

Well, consider me educated on the precise use of "preponderance", then, but I'll suggest this doesn't actually address the central problem in your argument: TCPA is not a trial on the merits of the case, nor is it a summary judgement. Even if it were summary jdugement, by definition it would not be a trial on the merits of the case, but to be a summary judgement it would have to meet a higher standard of evidence than mere prima facie for the plaintiff.

Now can we finally be done with this fucking circular argument? Fuck off back to law twitter.

 

[DinkyCowSow]

Well, consider me educated on the precise use of "preponderance", then, but I'll suggest this doesn't actually address the central problem in your argument: TCPA is not a trial on the merits of the case, nor is it a summary judgement. Even if it were summary jdugement, by definition it would not be a trial on the merits of the case, but to be a summary judgement it would have to meet a higher standard of evidence than mere prima facie for the plaintiff.

Now can we finally be done with this fucking circular argument? Fuck off back to law twitter.

What is your definition of trial on the merits of the case that includes a hearing on summary judgment but does not include a hearing on TCPA?

 

[teriyakiburns]

What is your definition of trial on the merits of the case that includes a hearing on summary judgment but does not include a hearing on TCPA?

Wrong question.

 

[Sheryl Nome]

What is your definition of trial on the merits of the case that includes a hearing on summary judgment but does not include a hearing on TCPA?

Please find me case law where there is a specific carve out for Motions to Dismiss falling under Rule 63 or TCPA hearing falling under rule 63. I will accept either.

Summary Judgement hearings have a specific carve out.

 

[DinkyCowSow]

Please find me case law where there is a specific carve out for Motions to Dismiss falling under Rule 63 or TCPA hearing falling under rule 63. I will accept either.

Summary Judgement hearings have a specific carve out.

Not doing any more work for you, after your best evidence for why rule 63 doesn't apply is "rule 63 doesn't apply to jurisdictional hearings."

 

[Sheryl Nome]

Not doing any more work for you, after your best evidence for why rule 63 doesn't apply is "rule 63 doesn't apply to jurisdictional hearings."

So you get to demand evidence, but I don't. A jurisdictional motion to strike hearing didn't fall under rule 63, but you cite no authority in saying it applies to motions to dismiss.

I think everyone knows why you're not providing that caselaw. Because it doesn't fucking exist.

 

[AnOminous]

TCPA motions are motions for summary judgment. They are asking the judge to rule on the merits of the case before a full trial.

There are multiple ways to rule on the merits of a case before a full trial. Summary judgment is one. A 12(b)(6) motion, the equivalent of what is sometimes called a demurrer in state court (and is currently TRCP 91a.1), is another. A TCPA motion is a third. They are similar but not identical and just saying one is exactly the same as every other is nonsense.

I doubt you have any citation where the Texas Supreme Court says a TCPA is absolutely identical to a motion for summary judgment, or even one that says it is identical to a summary judgment in the specific way you claim it is.

 

[Sheryl Nome]

There are multiple ways to rule on the merits of a case before a full trial. Summary judgment is one. A 12(b)(6) motion, the equivalent of what is sometimes called a demurrer in state court (and is currently TRCP 91a.1), is another. A TCPA motion is a third. They are similar but not identical and just saying one is exactly the same as every other is nonsense.

I doubt you have any citation where the Texas Supreme Court says a TCPA is absolutely identical to a motion for summary judgment, or even one that says it is identical to a summary judgment in the specific way you claim it is.

I would even accept any in texas case, ever, saying a Motion to Dismiss, not a TCPA, is identical to a motion for summary judgement.

I mean, I know that Rule 63 like doesn't apply to motions to dismiss, because

"Although the City and DeVillier argue that Rule 63 must apply to any dispositive motion, we have not found any case law applying Rule 63 to a motion to dismiss. "

Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637 – CourtListener.com

Opinion for Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637 — Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information.

www.courtlistener.com

But I guess the -court- saying it can't even find that caselaw isn't good enough

 

[Mister Y]

@DinkyCowSow : Dismissing a cause of action is still a ruling and not a judgement...
Judgement (summary or not) = guilty / innocent. Dismissing a cause of action does not equate with judging the defendant(s) innocent.

 

[MirrorNoir]

Can someone give me a four-one-one on any recent events of the last couple of weeks to someone who hasn't been able to follow Vic's case as closely as one would like to due to other adult stuff getting in the way plus the recent outages with the website going down a lot these last couple of weeks?

 

[Garm]

Was talking about his behaviour during the TCPA hearing, turning it into an evidentiary hearing and all. Now the thing with him talking about "healing the community", so blatantly parroting Monia, and apparently being swayed by threats send to him by Marchi. As far as I am concerned, he should focus on the case, not on healing the weeb community.

But yeah, I am aware I don't know how the other Tarrant County judges operate. I am also aware Ty didn't deliver his best performance during the TCPA hearing. I'm also quite critical of him. Just putting my thots out there.

I think Chupp is worried about people who are way too emotionally invested in the case having a mental meltdown. Like JoesephTX on the farms here.

Chupp was trying to frame the mediation as "if you truly care about the community, you will stop this." He was seemingly trying to layout practical and emotional reasons to settle the case.

I doubt that the defense would take the advice.

 

[Sheryl Nome]

Can someone give me a four-one-one on any recent events of the last couple of weeks to someone who hasn't been able to follow Vic's case as closely as one would like to due to other adult stuff getting in the way plus the recent outages with the website going down a lot these last couple of weeks?

Most causes of actions were dismissed at the TCPA hearing, defamation for funi/ron/monica and conspiracy for ron/mon are on the table
parties have been ordered to mediation
we're waiting on the written decision from the judge, and then almost certainly we're waiting on appeals.

 

[DinkyCowSow]

So you get to demand evidence, but I don't.

I think everyone knows why you're not providing that caselaw. Because it doesn't fucking exist.

I'm not asking for a specific citation saying "you can amend a TCPA any time you want". I doubt any such ruling exists. I doubt any such ruling to the opposite also exists. I've tried looking for both, but I haven't seen any.

Absent a clear rule or ruling on this, we can only make arguments about how courts are likely to treat it, supported by evidence.

I have presented evidence that Texas courts are willing to treat hearings as trials in some cases, including summary judgment. I think it's likely that judges would treat TCPA the same way as summary judgment, based on the fact that: 1) they are both not jury trials 2) that the judge cannot weigh strengths of evidence during 3) where the judge can end the case based on pleadings.

I think the exact case you cited earlier provides additional evidence of this. The court did not say that rule 63 doesn't apply because it was a motion to dismiss, it said it because it was a motion to dismiss specifically about the lack of jurisdiction. Supreme Court of Texas, Bland Independent School Distrinct v. Blue: "A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit."

The TCPA dismissal is an assertion as to the merit of the case. Much like with a summary judgment the judge takes all the facts as given (summary judgment takes facts as agreed upon by both parties, TCPA takes facts only as plead by plaintiff apart from affirmative defenses). The judge looks at the specific facts (without weighing them) and determines whether they meet the standards for the alleged torts.

@DinkyCowSow : Dismissing a cause of action is still a ruling and not a judgement...
Judgement (summary or not) = guilty / innocent. Dismissing a cause of action does not equate with judging the defendant(s) innocent.

I may have used judgment in a few places where dismissal was more warranted. I would argue that it's still a judgment, just not one of guilty or innocence, but rather a judgment that the case does not have merit. I hope you'll forgive me (after all, a judgment in a civil case actually doesn't have guilty or innocent as that is strictly for criminal proceedings).

 

[PowerBottomFutaLover]

I honestly still on the realization that we all may not truly know what this mediation means. I not sure how this going to go but all theories taken and considered.....mediation still doesn't make sense (timing wise)