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- Jun 8, 2019
Victor Mignogna v. Funimation Productions, LLC, et al. (2019) - Vic's lawsuit against Funimation, VAs, and others, for over a million dollars.
- Thread starter 5t3n0g0ph3r
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DragoonSierra
kiwifarms.net
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- Nov 10, 2015
Theres something about excessive fines in the Constitution and courts have ruled that extends to the states.
Kinda like Ron eh?
Why would he need conspiracy to stick to get discovery from Denbow? They offered her affidavit to the court as proof they didnt defame him they have a right to question it right?
I believe Nick said if a reasonable offer to settle was rejected it could be used to sanction even the winner of a lawsuit. It would be a good idea for Ty to actually offer settlement at this mediation. Nick said Vic would probably take just a retraction and an apology. That could be seen by the court as a reasonable settlement offer.
All lawyers do that. Shit the defense did it and was even 1 day over the deadline.
Also according to Nick he was potentially signaling to Moronica if youre serious about what you said youll settle this.
lawtwitterthrowaway
kiwifarms.net
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- Sep 10, 2019
If you'll review the transcript again, you'll see why Rule 11 got brought up (i.e. Instead of fixing his faulty 8/30 response, Ty filed a whole new document, thereby attempting to bypass his shitburger)There's nothing in that rule 11 about amending pleadings.
Rule 63 basically says that you can file amendments freely except when it comes to trial. TCPA is not a trial. There's a squiggly bit in the middle of rule 63 that suggests that filings can be tossed if they surprise a party, but reading it in concert with related rules (66, and 166) suggests that that really only means amendments within 7 days at trial. Tossing an amended pleading for 'surprise' also requires some showing of surprise, which I don't think was really a thing. Almost nothing new was in the 2ap
Regardless Chupp allowed the affidavits.
Caselaw on rule 63 suggests its VERY permissive, so absent a trial date I think amended pleadings pretty much have to be accepted in texas.
See
"We hold the same to be true under rule 63's requirement that leave of court be obtained before amended pleadings can be filed within seven days of trial or thereafter. The rule applies in instances where there is a trial on the merits of the case. It does not apply in the instance of a hearing on a plea to the jurisdiction, as such is preliminary to a trial on the merits. Therefore, we will consider appellant's amended pleadings as the "live" pleadings in this appeal. "
Grand Prairie Hosp. v. Tarrant Appraisal D., 707 S.W.2d 281 – CourtListener.com
Opinion for Grand Prairie Hosp. v. Tarrant Appraisal D., 707 S.W.2d 281 — Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information.www.courtlistener.com
This has a STRONG suggestion that any hearing that is preliminary of a trial on the merits is permissible for the plaintiff to amend their petition as they please.
Nevertheless, we're discussing Rule 63. And while you've shown that there's no caselaw applying to amending a petition before a dismissal hearing, that cuts both ways. With no actual caselaw in effect, allowing or not allowing a filing falls under the purview of Chupp's discretion. And, you know, that can be appealed, but trying to appeal it means that they'd be arguing that it was an abuse of his discretion, which...well, it's not exactly an easy standard to get by.
- Joined
- Jun 11, 2019
Ty said there wasn’t anything new in the 2aP
It was opposing counsel that brought up rules other than the rule 11 as their burden so that’s not the full truth because Ty said he didn’t think it violated the agreement and he’s right, they never showed their burden for it as the defendants. If that issue is proposed at appeal there is enough evidence to show they weren’t burdened by those silly arguments unless they want to lose what they also filed late (also on rule 11 extension btw) AND their amended pleadings.
You’re still arguing the stupidity of a COA affirming something to the effect of “your honor if we allow their TCPA Standard prima facie evidence clearly my clients will be proven guilty”
There is no case citation on it specifically, wanna know why? Because only amateurs throw hissy fits about that stuff and clearly we have very very guilty defendants with counsel that just want a quick gimme technically win and out.
They have one now by Mediation so you’re damn sure Ty is ready to move forward no matter the ruling after failed mediation.
Defamation moves forward? Great Vic is happy
Everything dismissed? Great time for an expedited appeal where all the issues will probably be brought to an actual trial.
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lawtwitterthrowaway
kiwifarms.net
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- Sep 10, 2019
Percy the liar admitted otherwise at the hearing (got called out for it, too!); News at 11.
In other news, I was actually reading the case law Sheryl was referencing, and this stood out to me.
Given that we do in fact have basis to conclude that the amended pleading was not considered by the court, and the parties themselves can show surprise or prejudice if they so wish.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. However, Rule 63 does apply to a summary judgment hearing. See Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490-91 (Tex.198. In such a case, if there is no basis in the record to conclude the amended pleading was not considered by the trial court, and there is not a sufficient showing of surprise or prejudice on the part of the opposing party, leave of court to file the amended petition is presumed. See Goswami, 751 S.W.2d at 490-91; Johnson v. Rollen, 818 S.W.2d 180, 183 (Tex.App.Houston [1st Dist.] 1991, no writ.) 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.
And given we do have a transcript here, this bit's not going to be arguable.
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- Jun 11, 2019
1) Where? His response said I didn’t think it would violate the agreement.
2) they won’t because like I said they did the exact same thing, filed a day late AND on a rule 11.
3) you’re right but not arguable for the defendants because we also have their late pleadings and amendments.
Where’s their “surprise” and burden when they been doing that this entire time to the plaintiff?
Neither of you have still answered that question in like how many pages now?
- Joined
- Sep 26, 2017
Which would only matter, if again, Rule 63 applied.
I think Rule 63 is extremely unlikely to be applied by an Appeals court to MTDs if it has not been done previously, as that would radically reshape how law is practiced in Texas.
- Joined
- Jul 19, 2018
The rest of the time it's like opening one of those dog shit bins they have at parks
- Joined
- May 24, 2019
I've recently watched Rough N' Rowdy amateur "boxing", and it's made me both want and consider some silly things.
One thing I've noticed about Ronald J. Soye the Turd is in all of his public photos or appearances he's wearing a suit. Looking at the folds in the suit around his upper-arms it does actually look like he has some mass there. He doesn't look overweight in the face so he may have some decent bi/triceps, so I reckon he'd be able to take Nick in a boxing match. HOWEVER, if Nick comes in cosplaying as Drexel I think RJS will be too busy Tweeting about how racist this disgusting alcoholic lawyer is to do anything other than take the beating.
Ronald J. Soye the Turd vs Thick Lasagne would be interesting to see, RJS the Turd will have the reach but Vic has much more muscle, anime and God on his side.
Now, the match I'm most interested in is Carey "Amazon Prime" Christie vs Casey "Behave yourself, woman" Erick. Erick will probably discuss with RJS backstage how he should interrupt the match by running in with a remote and beat Christie over the head. Christie will still win though because Christie is a forward-thinker, and would put Laci in the front row to "disarm" any attempted interruption with her bright pink gun.
Ty vs Lemoine will be fucking boring, unless Lemoine's allowed to bring his walking stick in. Just keep backing away and wait for Lemoine to suffocate himself due to exertion.
One thing I've noticed about Ronald J. Soye the Turd is in all of his public photos or appearances he's wearing a suit. Looking at the folds in the suit around his upper-arms it does actually look like he has some mass there. He doesn't look overweight in the face so he may have some decent bi/triceps, so I reckon he'd be able to take Nick in a boxing match. HOWEVER, if Nick comes in cosplaying as Drexel I think RJS will be too busy Tweeting about how racist this disgusting alcoholic lawyer is to do anything other than take the beating.
Ronald J. Soye the Turd vs Thick Lasagne would be interesting to see, RJS the Turd will have the reach but Vic has much more muscle, anime and God on his side.
Now, the match I'm most interested in is Carey "Amazon Prime" Christie vs Casey "Behave yourself, woman" Erick. Erick will probably discuss with RJS backstage how he should interrupt the match by running in with a remote and beat Christie over the head. Christie will still win though because Christie is a forward-thinker, and would put Laci in the front row to "disarm" any attempted interruption with her bright pink gun.
Ty vs Lemoine will be fucking boring, unless Lemoine's allowed to bring his walking stick in. Just keep backing away and wait for Lemoine to suffocate himself due to exertion.
- Joined
- Aug 5, 2019
Disagree.
A TCPA hearing is based on the merits of the lawsuit itself, your definition implies the merits of the case.
Dismissal under the TCPA because of the (lack of) merits of the (frivolous) lawsuit = ruling, not a judgment.
Dismissal during a trial or a summary judgement because of the merits of the case itself = judgement, that is how you are judged "innocent".
Don't forget, in a TCPA hearing, the judge is not supposed to validate the evidences, just to check if the plaintif as a reasonable reason to fill the lawsuit.
The TCPA hearing is not supposed to include the merits of the case (discovery is not even supposed to have happened at this point).
Don't conclude that a TCPA hearing fulfill the definition of a summary judgement based on Chupp doing stuffs he shouldn't have done at a TCPA hearing.
A TCPA hearing is not a judgement, it's a ruling, it's just supposed to be a judge saying "this lawsuit is legit/stupid", and not answering "does the defendant look guilty?".
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- Sep 26, 2017
I'm not quite sure about what you're trying to tell me there, could you explain?
7proxy
kiwifarms.net
- Joined
- Feb 8, 2019
I don't think he has been paying attention to anything and just wants to be done with it. Didn't he say something to that effect in their first hearing, "then why are you here?" (paraphrasing his response during the "I told them to stop tweeting" discussion)
I'm 99.9% talking out of my ass but Chupp strikes me as someone who wants to expedite cases so he can brag about closing 300 dockets a year, or whatever his numbers are. Resolving cases through mediation without issuing any major rulings would be great for that.
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Why are you all still responding to that exceptional individual? When have they ever shown to be anything but the purest form of autism and/or deliberately trolling? Stop responding to it and let it wither.
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- Sep 26, 2017
A motion to dismiss is a final determination on the merits of that case, you can't re-bring a lawsuit that has been terminated on the merits
- Joined
- Dec 28, 2014
If it's with prejudice it's a final judgment for the purpose of res judicata, for the purposes of appealability, and, for that matter, any other purpose that is of any importance.
I'm not sure how you can say that a dismissal with prejudice that permanently ends a case and precludes it ever being filed again is not a final judgment. For what purpose isn't it one?
lawtwitterthrowaway
kiwifarms.net
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- Sep 10, 2019
And again, the discretionary powers of the judge mean that he can reject the filing under Rules 63 or 11 or 70 (or even 59, it's not like it wasn't brought up at the hearing).
You seem unfamiliar with standards of appellate review in Texas (which really is my fault except for the part where it's actually not at all my fault). Go look it up. Little hint: focus on "abuse of discretion" and what that means the appellate court actually has to find to reverse Chupp on something like this.
Enjoy reading the adventures of Ty rightfully getting slapped around by a judge for his filings before they get struck! I highly recommend the second one, where Chupp asks him why the second amended petition is so important if it's actually identical enough to the first one that no surprise occurs and he desperately tries to lie his way out of it. Oh, and the bit where Chupp points out that there was surprise, and exactly what it was.
THE COURT: Sure.
MR. VOLNEY: It's crazy what you can find in the Texas Rules of Civil Procedure if you look carefully enough, but there is a rule, Rule 59, that deals with exhibits to pleadings, Your Honor. So that rule says, in effect, that the only appropriate exhibits to a pleading like the plaintiff's second amended petition would be items like contracts, instruments, notes, accounts, bonds. And, in fact, there is a Fort Worth Court of Appeals case that reads Texas Rule of Civil Procedure 59 to say that you can't include things like depositions, unsworn declarations, unauthenticated emails, unauthenticated tweets, those sorts of things, to a petition in order to make them part of the Court's record. So the second amended petition is improper because it was filed late past the deadline established by the parties' Rule 11 agreement as a responsive pleading to the TCPA motions.
THE COURT: Well, let me just ask them real quick. Is that considered a responsive pleading to the TCPA motion?
MR. HSU: Your Honor, no, actually.
THE COURT: Okay. So we're not even going to deal with it, then. They're not using that one, they're using the old one for this hearing.
MR. HSU: Well, Your Honor, if I may address something to the Court real quickly.
THE COURT: Oh, okay. MR. HSU: According to Rule 63, first and foremost, counsel mentions that this is a -- that the second pleading was done in response to the TCPA hearing. First and foremost, when a -- as the Court is probably well aware, when an actual pleading is actually supplemented, that pleading in and of itself takes the place of the old pleading. The old pleading in the eyes of the Court does no longer exist. We couldn't litigate it if we wanted to. In this instance the new pleading would actually stand in place of the old pleading.
And in addition to that, I believe, Mr. Lemoine --
THE COURT: Let me ask you this. Is this something I should consider for this TCPA motion?
MR. HSU: Yes, Your Honor.
THE COURT: And were you supposed to file everything with regards to the TCPA motion by August 30th, 2019?
MR. HSU: Your Honor, the Rule 11 actually mentions specifically the responses, not as to any amendment to pleadings, it's actually silent on that fact. And, moreover, Your Honor, according to Rule 63, the plaintiffs can actually file an amended pleading at any given time.
THE COURT: Why didn't y'all file it on the 30th?
MR. HSU: It was a --
THE COURT: You asked for time. I gave you time, right?
MR. BEARD: Yes, Your Honor. THE COURT: Okay. And so you asked for 30 days, how much did I give you?
MR. BEARD: Well -- yes, Your Honor, you did. But we weren't -- I mean, the CLE materials and the appeals court cases over and over say amend the pleadings, amend the pleadings, amend the pleadings. We got our response done, and then we amended the pleadings. We didn't feel like we were under a deadline for the pleadings.
THE COURT: Okay.
MR. BEARD: The pleadings don't contain anything that isn't in our response.
MR. VOLNEY: Not true.
THE COURT: Okay.
MR. VOLNEY: Not true.
THE COURT: Hold on. Hold on.
MR. BEARD: Well, if I could finish.
THE COURT: Yeah, go ahead and finish.
MR. BEARD: We did replace affidavits that were defective with unsworn declarations, but that's it, as far as I know. Most of the other evidence -- the amended second -- the second amended petition does summarize the evidence, the prima facie evidence that we've got. But, I mean, there is no surprise in this, none whatsoever. It simply restates what's in our response and our first amended pleading and does it in a cleaner, easier to read way.
THE COURT: It seems like a way to try to get around the Rule 11 agreement to me. If you want me to consider it, it seems like everything you wanted me to consider, you should have filed on August 30th.
MR. BEARD: Well, we did. I mean --
THE COURT: No, you didn't. I mean, you didn't file this on August 30th, right?
MR. BEARD: No, we didn't.
THE COURT: Okay. So you didn't. I figure everything you wanted me to consider, you would have filed by the August 30th date.
MR. BEARD: Your Honor, also we had filed affidavits with our response. They were pointed out to be defective, and they were defective, so I pulled them down. We did amend our petition to put -- to replace those defective affidavits with unsworn declarations that are no longer defective.
THE COURT: But you didn't replace them in your response. MR. BEARD: Didn't know -- well, no, we didn't, because we didn't know they were defective. That was pointed out by opposing counsel over the Labor Day weekend.
THE COURT: Right, but you knew they were defective as of Labor Day weekend, but you didn't --
MR. BEARD: That's --
THE COURT: Okay.
MR. BEARD: Sorry. Excuse me.
THE COURT: So what I'm saying is you replaced them in the petition, but you didn't replace them in your response.
MR. BEARD: Correct. Because --
THE COURT: And you were doing that because you'd be missing your deadline to do the response, and now you're trying to get around that. You couldn't file them, could you, in your response, and you didn't file them.
MR. BEARD: Maybe I'm not being clear.
THE COURT: Okay. I'll be clear. You filed your response on the 30th, I guess?
MR. BEARD: Yes.
THE COURT: Okay.
MR. BEARD: Well --
THE COURT: And then you had defective affidavits and you were told about that and then I guess --
MR. BEARD: I found that -- I'm sorry. Sorry, Your Honor.
THE COURT: Okay. And so instead of supplementing your response to the TCPA motion, you didn't do that, you actually withdrew those affidavits in your response.
MR. BEARD: Correct.
THE COURT: Okay. And you didn't add any new affidavits to that.
MR. BEARD: Correct.
THE COURT: And you're trying to get around that by filing an amended petition and want me to consider those affidavits as part of your response.
MR. BEARD: Well, I suppose, but I --
THE COURT: It's yes or no. If you don't want me to consider those affidavits as a part of your response, just tell me.
MR. BEARD: I do want you to consider those.
THE COURT: Okay. Just say yes, then, that's what you're doing.
MR. BEARD: Yes, Your Honor.
THE COURT: Okay. So you're trying to get around the August 30th deadline by filing an amended petition --
MR. BEARD: Well, I'm trying to --
THE COURT: -- and they're trying to strike your petition.
MR. BEARD: Your Honor, I'm trying to correct a defective filing.
THE COURT: Well, the defective filing you didn't correct. You added a new filing. You could have corrected the defective filing, which was the response to the motion -- the TCPA motion. You didn't correct that. You actually withdrew stuff from that and didn't add anything to it.
MR. BEARD: Correct, because we were outside of our -- our deadline had passed for that. I honestly didn't think that amending our pleadings would run afoul of the Rule 11.
THE COURT: Well, I think they don't want the affidavits considered.
MR. BEARD: I'm sorry?
THE COURT: I don't think they want the affidavits considered.
MR. BEARD: No, they do not.
THE COURT: Right.
MR. VOLNEY: Or the --
MR. BEARD: Because they're devastating.
MR. VOLNEY: Or the unsworn declarations.
And, if I may, Your Honor, that's the point of Rule 59. You don't get to put into evidence matters just by slapping them on a second amended petition. If this were a contract, a promissory note, you know, some legally operative instrument, which is what the rule talks about, then maybe. On top of that, there's a Rule 70 problem, because there is surprise here to us because they filed it late. And it's not a mistaken affidavit, and Mr. Lemoine is going to address that point. So there is a surprise to us under Rule 70. But more than that, I mean, there is problems with the declarations themselves in that they don't include the dates of birth and the home addresses of the -- of the declarants, they're X'd out. I don't think that is proper under Rule 21(c)(a)3, which doesn't allow -- or under the Texas Government Code. So there is multiple problems here. There is levels and levels of problems here. But the rule about exhibits to pleadings, Rule 59, is what controls here, and the Rule 11 agreement, and we'd ask the Court to strike it.
MR. HSU: Excuse me. And then in further of that, Your Honor, in considering the TCPA motions and the ramifications of the motion to strike, the Court is supposed to take all the pleadings and all the information brought forth at the -- before the TCPA motion was filed and review those for whether or not we meet the burden of having a prima facie case. And in this instance, Your Honor, pleadings do directly go to that. And amending the pleadings, according to Rule 63, provided there is no surprise, which in this case, Your Honor, the withdrawn affidavits are the same as the -- as the unsworn declarations. There is no surprise here. These are the same issues. These are the same documents that parallel both pleadings, Your Honor.
THE COURT: Did you say there is an issue with their affidavits also?
MR. VOLNEY: Well, with the unsworn declarations under the Texas --
THE COURT: Were they withdrawn, though?
MR. VOLNEY: No, the -- well, the affidavits were withdrawn because it was pointed out that they were fraudulently notarized.
MR. HSU: Your Honor --
MR. VOLNEY: The unsworn declarations were then attached to the second amended petition as an end run around our Rule 11 agreement.
THE COURT: Okay.
MR. VOLNEY: But the problem with the declarations is Rule 59 doesn't allow you just to slap a mixed bag of evidence on your pleading and make it part of the Court's record. That is the problem there. But the other fundamental problem is the dates of birth and home addresses of the witnesses aren't included in those declarations, which is a requirement of the Texas Government Code related to unsworn declarations. And just one other final point, there is a bunch of stuff that they have attached to the second amended petition that they did not attach to their response, which they attempted to file. They filed late on, I guess, early Saturday morning. So that -- those particular items are listed in my bench brief. So it's not fair to say that this is not anything new, as if -- there's not a one-to-one equivalency between what they tried to attach to their response and what they attached to their second amended petition. So I don't want to bog the Court down --
MR. BEARD: May I --
THE COURT: Yes. I mean, I guess both of y'all are going. Does anybody else want to stand up over there.
MR. BEARD: I'm sorry, I --
MR. HSU: Sorry, Your Honor.
THE COURT: Well, I mean, one of y'all probably needs to figure out who is doing this argument.
MR. VOLNEY: Your Honor, I have a copy of the Fort Worth court of appeals case, Texas Electric Service Company versus Commercial Standard where they said you couldn't attach a deposition, which is, in effect, sworn testimony to a pleading, and then make it part of the record that way under Rule 59, so I think that's dispositive of this issue.
THE COURT: But I mean, I can attach an affidavit to Rule 185 sworn account.
MR. VOLNEY: Right.
THE COURT: And that's an affidavit.
MR. VOLNEY: But that's an instrument that's a sworn account that's actually called out in the rule, notes, accounts, bonds, mortgages.
THE COURT: Yeah, but can I attach an affidavit to it.
MR. VOLNEY: Right. That is the type of instrument that the court rules allow for a -- under Rule 59, not just random emails, tweets, declarations that they tried to -- they should have gotten into evidence under the parties evidence. Thank you, Your Honor.
MR. VOLNEY: It's crazy what you can find in the Texas Rules of Civil Procedure if you look carefully enough, but there is a rule, Rule 59, that deals with exhibits to pleadings, Your Honor. So that rule says, in effect, that the only appropriate exhibits to a pleading like the plaintiff's second amended petition would be items like contracts, instruments, notes, accounts, bonds. And, in fact, there is a Fort Worth Court of Appeals case that reads Texas Rule of Civil Procedure 59 to say that you can't include things like depositions, unsworn declarations, unauthenticated emails, unauthenticated tweets, those sorts of things, to a petition in order to make them part of the Court's record. So the second amended petition is improper because it was filed late past the deadline established by the parties' Rule 11 agreement as a responsive pleading to the TCPA motions.
THE COURT: Well, let me just ask them real quick. Is that considered a responsive pleading to the TCPA motion?
MR. HSU: Your Honor, no, actually.
THE COURT: Okay. So we're not even going to deal with it, then. They're not using that one, they're using the old one for this hearing.
MR. HSU: Well, Your Honor, if I may address something to the Court real quickly.
THE COURT: Oh, okay. MR. HSU: According to Rule 63, first and foremost, counsel mentions that this is a -- that the second pleading was done in response to the TCPA hearing. First and foremost, when a -- as the Court is probably well aware, when an actual pleading is actually supplemented, that pleading in and of itself takes the place of the old pleading. The old pleading in the eyes of the Court does no longer exist. We couldn't litigate it if we wanted to. In this instance the new pleading would actually stand in place of the old pleading.
And in addition to that, I believe, Mr. Lemoine --
THE COURT: Let me ask you this. Is this something I should consider for this TCPA motion?
MR. HSU: Yes, Your Honor.
THE COURT: And were you supposed to file everything with regards to the TCPA motion by August 30th, 2019?
MR. HSU: Your Honor, the Rule 11 actually mentions specifically the responses, not as to any amendment to pleadings, it's actually silent on that fact. And, moreover, Your Honor, according to Rule 63, the plaintiffs can actually file an amended pleading at any given time.
THE COURT: Why didn't y'all file it on the 30th?
MR. HSU: It was a --
THE COURT: You asked for time. I gave you time, right?
MR. BEARD: Yes, Your Honor. THE COURT: Okay. And so you asked for 30 days, how much did I give you?
MR. BEARD: Well -- yes, Your Honor, you did. But we weren't -- I mean, the CLE materials and the appeals court cases over and over say amend the pleadings, amend the pleadings, amend the pleadings. We got our response done, and then we amended the pleadings. We didn't feel like we were under a deadline for the pleadings.
THE COURT: Okay.
MR. BEARD: The pleadings don't contain anything that isn't in our response.
MR. VOLNEY: Not true.
THE COURT: Okay.
MR. VOLNEY: Not true.
THE COURT: Hold on. Hold on.
MR. BEARD: Well, if I could finish.
THE COURT: Yeah, go ahead and finish.
MR. BEARD: We did replace affidavits that were defective with unsworn declarations, but that's it, as far as I know. Most of the other evidence -- the amended second -- the second amended petition does summarize the evidence, the prima facie evidence that we've got. But, I mean, there is no surprise in this, none whatsoever. It simply restates what's in our response and our first amended pleading and does it in a cleaner, easier to read way.
THE COURT: It seems like a way to try to get around the Rule 11 agreement to me. If you want me to consider it, it seems like everything you wanted me to consider, you should have filed on August 30th.
MR. BEARD: Well, we did. I mean --
THE COURT: No, you didn't. I mean, you didn't file this on August 30th, right?
MR. BEARD: No, we didn't.
THE COURT: Okay. So you didn't. I figure everything you wanted me to consider, you would have filed by the August 30th date.
MR. BEARD: Your Honor, also we had filed affidavits with our response. They were pointed out to be defective, and they were defective, so I pulled them down. We did amend our petition to put -- to replace those defective affidavits with unsworn declarations that are no longer defective.
THE COURT: But you didn't replace them in your response. MR. BEARD: Didn't know -- well, no, we didn't, because we didn't know they were defective. That was pointed out by opposing counsel over the Labor Day weekend.
THE COURT: Right, but you knew they were defective as of Labor Day weekend, but you didn't --
MR. BEARD: That's --
THE COURT: Okay.
MR. BEARD: Sorry. Excuse me.
THE COURT: So what I'm saying is you replaced them in the petition, but you didn't replace them in your response.
MR. BEARD: Correct. Because --
THE COURT: And you were doing that because you'd be missing your deadline to do the response, and now you're trying to get around that. You couldn't file them, could you, in your response, and you didn't file them.
MR. BEARD: Maybe I'm not being clear.
THE COURT: Okay. I'll be clear. You filed your response on the 30th, I guess?
MR. BEARD: Yes.
THE COURT: Okay.
MR. BEARD: Well --
THE COURT: And then you had defective affidavits and you were told about that and then I guess --
MR. BEARD: I found that -- I'm sorry. Sorry, Your Honor.
THE COURT: Okay. And so instead of supplementing your response to the TCPA motion, you didn't do that, you actually withdrew those affidavits in your response.
MR. BEARD: Correct.
THE COURT: Okay. And you didn't add any new affidavits to that.
MR. BEARD: Correct.
THE COURT: And you're trying to get around that by filing an amended petition and want me to consider those affidavits as part of your response.
MR. BEARD: Well, I suppose, but I --
THE COURT: It's yes or no. If you don't want me to consider those affidavits as a part of your response, just tell me.
MR. BEARD: I do want you to consider those.
THE COURT: Okay. Just say yes, then, that's what you're doing.
MR. BEARD: Yes, Your Honor.
THE COURT: Okay. So you're trying to get around the August 30th deadline by filing an amended petition --
MR. BEARD: Well, I'm trying to --
THE COURT: -- and they're trying to strike your petition.
MR. BEARD: Your Honor, I'm trying to correct a defective filing.
THE COURT: Well, the defective filing you didn't correct. You added a new filing. You could have corrected the defective filing, which was the response to the motion -- the TCPA motion. You didn't correct that. You actually withdrew stuff from that and didn't add anything to it.
MR. BEARD: Correct, because we were outside of our -- our deadline had passed for that. I honestly didn't think that amending our pleadings would run afoul of the Rule 11.
THE COURT: Well, I think they don't want the affidavits considered.
MR. BEARD: I'm sorry?
THE COURT: I don't think they want the affidavits considered.
MR. BEARD: No, they do not.
THE COURT: Right.
MR. VOLNEY: Or the --
MR. BEARD: Because they're devastating.
MR. VOLNEY: Or the unsworn declarations.
And, if I may, Your Honor, that's the point of Rule 59. You don't get to put into evidence matters just by slapping them on a second amended petition. If this were a contract, a promissory note, you know, some legally operative instrument, which is what the rule talks about, then maybe. On top of that, there's a Rule 70 problem, because there is surprise here to us because they filed it late. And it's not a mistaken affidavit, and Mr. Lemoine is going to address that point. So there is a surprise to us under Rule 70. But more than that, I mean, there is problems with the declarations themselves in that they don't include the dates of birth and the home addresses of the -- of the declarants, they're X'd out. I don't think that is proper under Rule 21(c)(a)3, which doesn't allow -- or under the Texas Government Code. So there is multiple problems here. There is levels and levels of problems here. But the rule about exhibits to pleadings, Rule 59, is what controls here, and the Rule 11 agreement, and we'd ask the Court to strike it.
MR. HSU: Excuse me. And then in further of that, Your Honor, in considering the TCPA motions and the ramifications of the motion to strike, the Court is supposed to take all the pleadings and all the information brought forth at the -- before the TCPA motion was filed and review those for whether or not we meet the burden of having a prima facie case. And in this instance, Your Honor, pleadings do directly go to that. And amending the pleadings, according to Rule 63, provided there is no surprise, which in this case, Your Honor, the withdrawn affidavits are the same as the -- as the unsworn declarations. There is no surprise here. These are the same issues. These are the same documents that parallel both pleadings, Your Honor.
THE COURT: Did you say there is an issue with their affidavits also?
MR. VOLNEY: Well, with the unsworn declarations under the Texas --
THE COURT: Were they withdrawn, though?
MR. VOLNEY: No, the -- well, the affidavits were withdrawn because it was pointed out that they were fraudulently notarized.
MR. HSU: Your Honor --
MR. VOLNEY: The unsworn declarations were then attached to the second amended petition as an end run around our Rule 11 agreement.
THE COURT: Okay.
MR. VOLNEY: But the problem with the declarations is Rule 59 doesn't allow you just to slap a mixed bag of evidence on your pleading and make it part of the Court's record. That is the problem there. But the other fundamental problem is the dates of birth and home addresses of the witnesses aren't included in those declarations, which is a requirement of the Texas Government Code related to unsworn declarations. And just one other final point, there is a bunch of stuff that they have attached to the second amended petition that they did not attach to their response, which they attempted to file. They filed late on, I guess, early Saturday morning. So that -- those particular items are listed in my bench brief. So it's not fair to say that this is not anything new, as if -- there's not a one-to-one equivalency between what they tried to attach to their response and what they attached to their second amended petition. So I don't want to bog the Court down --
MR. BEARD: May I --
THE COURT: Yes. I mean, I guess both of y'all are going. Does anybody else want to stand up over there.
MR. BEARD: I'm sorry, I --
MR. HSU: Sorry, Your Honor.
THE COURT: Well, I mean, one of y'all probably needs to figure out who is doing this argument.
MR. VOLNEY: Your Honor, I have a copy of the Fort Worth court of appeals case, Texas Electric Service Company versus Commercial Standard where they said you couldn't attach a deposition, which is, in effect, sworn testimony to a pleading, and then make it part of the record that way under Rule 59, so I think that's dispositive of this issue.
THE COURT: But I mean, I can attach an affidavit to Rule 185 sworn account.
MR. VOLNEY: Right.
THE COURT: And that's an affidavit.
MR. VOLNEY: But that's an instrument that's a sworn account that's actually called out in the rule, notes, accounts, bonds, mortgages.
THE COURT: Yeah, but can I attach an affidavit to it.
MR. VOLNEY: Right. That is the type of instrument that the court rules allow for a -- under Rule 59, not just random emails, tweets, declarations that they tried to -- they should have gotten into evidence under the parties evidence. Thank you, Your Honor.
THE COURT: And I'll tell you, as far as the second amended petition is, I don't think I can consider it, because we would never have a hearing like this, because you would always file a petition right before -- a new petition right before, and it would void everything that was filed before it. It's not fair to them to file their motion to dismiss, and you not file a proper response to it, and then you come in and amend your petition, which may nullify what their motion to dismiss is. At some point in time we have to have a motion to dismiss hearing. And you can't just keep repleading to get around it. Because that's what you're doing, is you're repleading bad stuff to get around the motion to dismiss, when your -- when obviously you thought your first amended petition was deficient.
MR. BEARD: In that case, Your Honor, may I ask for a trial amendment to replace those defective affidavits with unsworn declarations that are identical, and declarations are allowed to suffice as affidavits, and I can explain the --
MR. LEMOINE: We're opposed for a couple of reasons.
THE COURT: Go ahead. So he's got affidavits that are attached to -- that were attached to his response; is that correct?
MR. LEMOINE: That's correct.
THE COURT: And then you've withdrawn those because there was an issue with the notary.
MR. BEARD: Yes.
THE COURT: What was the issue with the notary?
MR. BEARD: I was the notary, and I thought I could notarize, based on a telephone call, knowing the affiants, and that turned out to be wrong, just a -- and so --
MR. LEMOINE: It's not just wrong. It's contrary to what the statements in the affidavit are, which is subscribed and sworn before me today. And there is a specific mobile notary provision that is in the notary statute. You have to take a -- I think you have to do a different course, and then you have them on Skype, and you watch them sign it, and then you can notarize it. He didn't do any of that. And then when I -- and I'll give credit to Mr. Volney, because I wanted to wait until we got here to make the argument, but Mr. Volney said, no, maybe we're mistaken, give Mr. Beard the opportunity to explain it. We sent over an email and said please explain it, because it looks bad, it looks like you said people were in front of you, one in Odessa and two in Fort Worth, please explain it. No explanation for 39 hours.
THE COURT: Okay.
MR. LEMOINE: And then the second amended petition comes out with declarations, and he says, no fraud, says there was a defect in the form.
THE COURT: Okay.
MR. BEARD: May I respond, Your Honor?
THE COURT: Yeah, I mean, I'll probably consider the affidavits, as far as your response, but not your new pleading, not your second amended petition. That's -- obviously you're trying to get around the rules. I mean, so I have read them, so I mean, I know what they say. It's going to be hard for me to put them out of my mind now that I've read them any way.
MR. BEARD: Yes, Your Honor. You didn't get an accurate copy of the email.
THE COURT: I don't -- I'm not worried about that. I'm worried about the cause of action that you have against Ms. Marchi and the tweets that are in your first amended petition, because that's the petition we're here about, because you didn't file the second amended petition until after you did the affidavits wrong. So let's deal with that one, and tell me what tweets, other than the two that you've told me so far.
THE COURT: Okay. And why was your response filed on the 3rd?
MR. BEARD: Our response was, according to the Rule 11 agreement, needed to be filed on the 30th. We had every intention of also filing an amended -- an amended petition, because, again, that's what you're told to do. Honestly, that was not part of the Rule 11 agreement from our side.
THE COURT: Your response was filed on the 3rd, too, is that just because of the --
MR. BEARD: No, Judge, it's not.
THE COURT: Is that just because it came in on Monday, because of the holiday? Probably, okay.
MR. BEARD: No, Judge, what happened was it was due by midnight on the 30th.
THE COURT: Right.
MR. BEARD: But, I mean, we always intended to file an amended petition with everything attached. It wasn't -- if I had known that our amended petition was required by the Rule 11 agreement, we would have gotten it in. It really simply just re -- you know, reshuffles the information that's already there. It did -- it did add some exhibits and stuff, that's true, but again, we're -- we're allowed to -- I always thought we were allowed to amend our pleadings.
THE COURT: Yeah, I mean, how soon -- can you amend them the day of trial without leave?
MR. BEARD: Not a trial, but this isn't a trial. This is a hearing.
THE COURT: Well, this is -- this could dismiss your case, and at some point you've got to stop amending pleadings so they can actually file a motion to dismiss on this. And that has to happen at some point in time, doesn't it?
MR. BEARD: I think it does, but if they could claim they were surprised, I would suppose so. But they're not surprised. We've been wrangling about this --
THE COURT: Well, I think they're surprised about the content more of your petition, than the affidavits. You actually have more complaints in your petition than you did the other one.
MR. BEARD: Your Honor --
THE COURT: Is that not true?
MR. BEARD: Well, I -- you'll have to ask them. I --
THE COURT: I'm asking you.
MR. BEARD: No, I don't think it's true at all.
THE COURT: Okay. So they're the exact same petition, the first amended and the second amended, except they're --
MR. BEARD: There are some exhibits added that actually show the emails rather than quote them. That's the main difference. We did -- we did use unsworn declarations, because by the time we put that together, we were aware that the affidavits had a problem. Your Honor, amended pleadings are routinely used to defeat summary judgment and dismissal hearings. I mean, it's --
THE COURT: They don't -- they won't defeat a summary judgment. Amended pleadings will not defeat a summary judgment. You can allege a new cause of action, or you can remove a cause of action, but if you've got a cause of action within your pleading, a summary judgment requires a response with evidence.
MR. BEARD: Right.
THE COURT: It's not your pleading that's going to support your summary judgment motion.
MR. BEARD: Right, Your Honor, but the -- the difference here is this is a TCPA action where the pleadings --
THE COURT: You brought up summary judgment. You don't need to tell me the difference. I didn't bring it up.
MR. BEARD: Well, I'm trying to analogize, I guess.
THE COURT: Okay.
MR. BEARD: What I'm saying is that it's routine to amend pleadings before trial outside of -- not within seven days without permission. There's no -- this is a hearing. There was no reason to assume that we were under any particular burden. We got it in as quick as we --
THE COURT: Let me ask you this. So if you were always intending to file a second amended petition, why did you wait until September 2nd to get them to sign these unsworn declarations?
MR. BEARD: Because I found out that the -- what would have happened is the defective affidavits would have gone into it, but we found out about it. Opposing counsel notified us. I checked into it, and went, you know, so I mean, that's -- that's why we did it.
MR. BEARD: In that case, Your Honor, may I ask for a trial amendment to replace those defective affidavits with unsworn declarations that are identical, and declarations are allowed to suffice as affidavits, and I can explain the --
MR. LEMOINE: We're opposed for a couple of reasons.
THE COURT: Go ahead. So he's got affidavits that are attached to -- that were attached to his response; is that correct?
MR. LEMOINE: That's correct.
THE COURT: And then you've withdrawn those because there was an issue with the notary.
MR. BEARD: Yes.
THE COURT: What was the issue with the notary?
MR. BEARD: I was the notary, and I thought I could notarize, based on a telephone call, knowing the affiants, and that turned out to be wrong, just a -- and so --
MR. LEMOINE: It's not just wrong. It's contrary to what the statements in the affidavit are, which is subscribed and sworn before me today. And there is a specific mobile notary provision that is in the notary statute. You have to take a -- I think you have to do a different course, and then you have them on Skype, and you watch them sign it, and then you can notarize it. He didn't do any of that. And then when I -- and I'll give credit to Mr. Volney, because I wanted to wait until we got here to make the argument, but Mr. Volney said, no, maybe we're mistaken, give Mr. Beard the opportunity to explain it. We sent over an email and said please explain it, because it looks bad, it looks like you said people were in front of you, one in Odessa and two in Fort Worth, please explain it. No explanation for 39 hours.
THE COURT: Okay.
MR. LEMOINE: And then the second amended petition comes out with declarations, and he says, no fraud, says there was a defect in the form.
THE COURT: Okay.
MR. BEARD: May I respond, Your Honor?
THE COURT: Yeah, I mean, I'll probably consider the affidavits, as far as your response, but not your new pleading, not your second amended petition. That's -- obviously you're trying to get around the rules. I mean, so I have read them, so I mean, I know what they say. It's going to be hard for me to put them out of my mind now that I've read them any way.
MR. BEARD: Yes, Your Honor. You didn't get an accurate copy of the email.
THE COURT: I don't -- I'm not worried about that. I'm worried about the cause of action that you have against Ms. Marchi and the tweets that are in your first amended petition, because that's the petition we're here about, because you didn't file the second amended petition until after you did the affidavits wrong. So let's deal with that one, and tell me what tweets, other than the two that you've told me so far.
THE COURT: Okay. And why was your response filed on the 3rd?
MR. BEARD: Our response was, according to the Rule 11 agreement, needed to be filed on the 30th. We had every intention of also filing an amended -- an amended petition, because, again, that's what you're told to do. Honestly, that was not part of the Rule 11 agreement from our side.
THE COURT: Your response was filed on the 3rd, too, is that just because of the --
MR. BEARD: No, Judge, it's not.
THE COURT: Is that just because it came in on Monday, because of the holiday? Probably, okay.
MR. BEARD: No, Judge, what happened was it was due by midnight on the 30th.
THE COURT: Right.
MR. BEARD: But, I mean, we always intended to file an amended petition with everything attached. It wasn't -- if I had known that our amended petition was required by the Rule 11 agreement, we would have gotten it in. It really simply just re -- you know, reshuffles the information that's already there. It did -- it did add some exhibits and stuff, that's true, but again, we're -- we're allowed to -- I always thought we were allowed to amend our pleadings.
THE COURT: Yeah, I mean, how soon -- can you amend them the day of trial without leave?
MR. BEARD: Not a trial, but this isn't a trial. This is a hearing.
THE COURT: Well, this is -- this could dismiss your case, and at some point you've got to stop amending pleadings so they can actually file a motion to dismiss on this. And that has to happen at some point in time, doesn't it?
MR. BEARD: I think it does, but if they could claim they were surprised, I would suppose so. But they're not surprised. We've been wrangling about this --
THE COURT: Well, I think they're surprised about the content more of your petition, than the affidavits. You actually have more complaints in your petition than you did the other one.
MR. BEARD: Your Honor --
THE COURT: Is that not true?
MR. BEARD: Well, I -- you'll have to ask them. I --
THE COURT: I'm asking you.
MR. BEARD: No, I don't think it's true at all.
THE COURT: Okay. So they're the exact same petition, the first amended and the second amended, except they're --
MR. BEARD: There are some exhibits added that actually show the emails rather than quote them. That's the main difference. We did -- we did use unsworn declarations, because by the time we put that together, we were aware that the affidavits had a problem. Your Honor, amended pleadings are routinely used to defeat summary judgment and dismissal hearings. I mean, it's --
THE COURT: They don't -- they won't defeat a summary judgment. Amended pleadings will not defeat a summary judgment. You can allege a new cause of action, or you can remove a cause of action, but if you've got a cause of action within your pleading, a summary judgment requires a response with evidence.
MR. BEARD: Right.
THE COURT: It's not your pleading that's going to support your summary judgment motion.
MR. BEARD: Right, Your Honor, but the -- the difference here is this is a TCPA action where the pleadings --
THE COURT: You brought up summary judgment. You don't need to tell me the difference. I didn't bring it up.
MR. BEARD: Well, I'm trying to analogize, I guess.
THE COURT: Okay.
MR. BEARD: What I'm saying is that it's routine to amend pleadings before trial outside of -- not within seven days without permission. There's no -- this is a hearing. There was no reason to assume that we were under any particular burden. We got it in as quick as we --
THE COURT: Let me ask you this. So if you were always intending to file a second amended petition, why did you wait until September 2nd to get them to sign these unsworn declarations?
MR. BEARD: Because I found out that the -- what would have happened is the defective affidavits would have gone into it, but we found out about it. Opposing counsel notified us. I checked into it, and went, you know, so I mean, that's -- that's why we did it.
- Joined
- Jun 29, 2019
Beat off to your own fanfic some more, fag.
Just do it somewhere that isn't here, so we don't have to suffer through your pig grunts