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

[Sheryl Nome]

Latest citation says there is no caselaw ever on applying Rule 63 to Motions to Dismiss, try to keep up.

Its just not a thing boy.

 

[DinkyCowSow]

Latest citation says there is no caselaw ever on applying Rule 63 to Motions to Dismiss, try to keep up.

Its just not a thing boy.

Which citation is that?

 

[AnOminous]

@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.

A judgment is any final determination of a court case on the merits, civil or criminal. Hence, motion for summary JUDGMENT. A dismissal can be a judgment if it is on the merits, but not if it is for lack of personal jurisdiction or otherwise without prejudice. A TCPA dismissal is a judgment on the merits. If your case is dismissed under the TCPA, you can't just file it again and give it another go.

 

[Sheryl Nome]

Which citation is that?

"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

Its not definitive, by any measure, but it doesn't seem like anyone has ever really tried to apply Rule 63 in a substantive motion where it would matter, as the court goes on to say.

"In this case, there is no basis in the record to conclude the amended pleading was not considered by the trial court, and there was no showing of surprise or prejudice on the part of the City or DeVillier. Therefore, even if Rule 63 applies to a motion to dismiss, this argument does not help the City or DeVillier because we must presume leave of court. "

An appeals court on this matter would have to decide if rule 63 applies to a MTD, but they might not even reach that and instead say 'Trial court considered it anyways' Because Chupp.. Ultimately kind of did when Ty was able to read off unopposed. I wouldn't expect an appeal on the rule 63 area to be substantive in Mignogna v Funimation.

 

[DinkyCowSow]

"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

Its not definitive, by any measure, but it doesn't seem like anyone has ever really tried to apply Rule 63 in a substantive motion where it would matter, as the court goes on to say.

"In this case, there is no basis in the record to conclude the amended pleading was not considered by the trial court, and there was no showing of surprise or prejudice on the part of the City or DeVillier. Therefore, even if Rule 63 applies to a motion to dismiss, this argument does not help the City or DeVillier because we must presume leave of court. "

An appeals court on this matter would have to decide if rule 63 applies to a MTD, but they might not even reach that and instead say 'Trial court considered it anyways' Because Chupp.. Ultimately kind of did when Ty was able to read off unopposed. I wouldn't expect an appeal on the rule 63 area to be substantive in Mignogna v Funimation.

It is possible that this is one of the things Ty could raise on appeal, and then the court would have to answer for it. "The court did not accept my amended petition, and this was a mistake of law." Of course, if the court doesn't want to answer that they might do something wacky to avoid it (like saying the trial court erred by allowing the first response after it was late).

I tend to think they would rule that rule 63 applies because of everything I've stated previously. Nobody has ruled on it, but I think the arguments for it applying are strong.

 

[HTTP Error 404]

Are you guys STILL giving Dinky Cow Sow attention? Wow.

 

[ObeseScreamingBlackMan]

Are you guys STILL giving Dinky Cow Sow attention? Wow.

Autism never changes.

 

[Sheryl Nome]

Dumb

Tys amended petition was presumptively allowable given apparently never, in the history of Texas, has any judge thought rule63 applies to motions to dismiss except for Chupp as far as I can tell

 

[NotaLolyer]

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.

If TCPA motions are motions for Summary Judgement, why does the actual text of the law say 'Motion to Dismiss'
That text makes me think its a motion to dismiss, and not a motion for Summary Judgement.

Care to answer that question?

It might be because its a Motion to Dismiss. And not a Summary Judgement
And its really interesting, because when you try to find if Rule 63 applies to Motions hearings, or motions to dismiss, the only answer I've ever found is that no, a Motion to Strike for lack of Jurisdiction does not fall within Rule 63. While its not set in stone, I would say if one kind of motion that requires a hearing and arguments doesn't fall within rule 63, its likely no motions to dismiss do.

Now, Motions to Dismiss CAN count as an Adjucication on the Merits. Does that make the TCPA hearing a Trial on the Merits per se? No. The Summary Judgement hearing is a specific carve out in the case law, and there is no such one for the TCPA, and no such authority because the TCPA is not a motion for summary judgement, and I cannot, cannot find, anything about MTD under Rule 63.

What the bird fails to understand is why the TCPA is written the way it is, it’s quite literally written in a way that sounds like it’s not challenging the 7th amendment because like I said earlier, Texas is wacky.

The Texas one specially fails at what it’s supposed to be doing unlike similar laws.

Also as a side note, I hate that it has the same initialism as the telephone consumer protection act cuz it made it hard for me to find citations while drunk whiskey researching the out of state rules and findings.

It is possible that this is one of the things Ty could raise on appeal, and then the court would have to answer for it. "The court did not accept my amended petition, and this was a mistake of law." Of course, if the court doesn't want to answer that they might do something wacky to avoid it (like saying the trial court erred by allowing the first response after it was late).

I tend to think they would rule that rule 63 applies because of everything I've stated previously. Nobody has ruled on it, but I think the arguments for it applying are strong.

Jesus Christ we’ve been telling you twitlaws for how many pages now that Ty has strong appeal points? You keep admitting we’re right without saying it, that’s why law is for scumbags and why Nick is right when he says it.

 

[DinkyCowSow]

Tys amended petition was presumptively allowable given apparently never, in the history of Texas, has any judge thought rule63 applies to motions to dismiss except for Chupp as far as I can tell

Chupp's refusal to allow the amended petition was presumptively the right choice given apparently never, in the history of Texas, has any plaintiff thought to amend their late TCPA filing within seven days of the hearing as far as I can tell.

 

[Sheryl Nome]

Chupp's refusal to allow the amended petition was presumptively the right choice given apparently never, in the history of Texas, has any plaintiff thought to amend their late TCPA filing within seven days of the hearing as far as I can tell.

People have thought to amend their motions to dismiss on the eve of the hearing though, which the TCPA is, and the court said 'Well Rule 63 has never been applied here, so there's no authority to apply it'

 

[DinkyCowSow]

I've been waiting the past 5 pages for that citation. The only ones I've seen offered here are courts dodging whether it applies in general because the party didn't offer evidence of the filings prejudicing them.

So which cases are you talking about here, with courts saying rule 63 does not apply to motions to dismiss?

 

[Sheryl Nome]

I've been waiting the past 5 pages for that citation. The only ones I've seen offered here are courts dodging whether it applies in general because the party didn't offer evidence of the filings prejudicing them.

So which cases are you talking about here, with courts saying rule 63 does not apply to motions to dismiss?

Why can't it read guys? Why can't it read?

"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. "

Can you read that this time. Emphasis mine. I must also emphasize that the TCPA IS a motion to dismiss.

 

[DinkyCowSow]

Why can't it read guys? Why can't it read?

"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. "

Can you read that this time. Emphasis mine. I must also emphasize that the TCPA IS a motion to dismiss.

Yes, there is no case law for it in either way. No one has said it does, no one has said it doesn't (well, we have one judge who said it does now!).

 

[Sheryl Nome]

Yes, there is no case law for it in either way. No one has said it does, no one has said it doesn't (well, we have one judge who said it does now!).

The court in that case not applying it strongly suggests that rule 63 does not apply

 

[NotaLolyer]

I've been waiting the past 5 pages for that citation. The only ones I've seen offered here are courts dodging whether it applies in general because the party didn't offer evidence of the filings prejudicing them.

So which cases are you talking about here, with courts saying rule 63 does not apply to motions to dismiss?

Exactly, you have to show burden, which not only did the defendants not do, but they misused a rule to knowingly mislead the court into not being shit canned straight to jury trial.

Couple that not showing burden with the citation @Sheryl Nome posted and you have a sure fire appeal point.

How much more wrong do you want to be?

Your only argument is “well the COA might side with me”
While everyone else is shitting on you with already existing citations that show they’re highly likely to not.

You know that when the COA doesn’t affirm the lower court the defendants are fucked. The only argument to them not being fucked, for months, has only been not surviving TCPA.

 

[Dumb Bitch Smoothie]

This thread is like opening Pandora's box sometimes.

 

[AnOminous]

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.

He clearly hasn't been paying any attention if he doesn't know Vic has been willing to talk settlement since before the suit was even filed, while the defendants have been loudly and publicly screaming about how they'll never, ever settle under any circumstances.

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

So far as I can tell, it would be a case of first impression and nobody's opinion is inherently worth any more than any others. The issue is whether, in this regard, it is more like a summary judgment motion, where revising the pleading would be subject to more restrictions, or more like a 12(b)(6) or 91a motion, or special exceptions, where amending the pleading is a standard response up to the hearing date, or even after the ruling on the motion.

 

[Sheryl Nome]

I think applying Rule 63 to the TCPA could have constitutional implications anyways, because calling the TCPA a 'trial' suddenly distinguishes it as being similar to to an actual trial (Where there is a finder of act) or Summary Judgement (Where necessarily, there are no facts in dispute).

There are facts in dispute at the TCPA point.

 

[Garm]

He clearly hasn't been paying any attention if he doesn't know Vic has been willing to talk settlement since before the suit was even filed, while the defendants have been loudly and publicly screaming about how they'll never, ever settle under any circumstances.

Chupp was talking to the lawyers right? He was probably thinking "these people would have an ethic responsibility to look out for their clients.

Ty: He had a round 2 planned. I think settling wouldn't bother him too much as long as he got the information he needed.

Lemoine: I think we are all in agreement that Lemoine probably isn't getting paid. And the judge is explaining that a TCPA pay out might be years from now depending on how appeals go. So he has to convince his senior partners to float Monica and Ron for a long time. Casey and Andrea seem gone as well.

Sam Johnson: Probably can't pull off the same trick in appeals as he did with Chupp. And he knows it.

Volney: I don't think Volney has done much so far.

These lawyers would have a responsibility to lay out what is going on and not what LawTwitter is spewing. The judge signaled that this lawsuit is probably going to go forward at some point in the future.

But you are correct that the defendants are wannabe costhots, the sheepdog and a cucked corporation that won't settle until it is too late.