Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous]The judge’s order is interesting because he is clearly stuck on the interplay between California Rule 41.7 and Fed. R.Civ. P. 54 (which generally talks about attorney’s fees).  Old friend Charlie Babcock, in the Texas case, brought a recently decided Supreme Court case to that federal court:

Similarly, the Supreme Court recently decided Berk v. Choy , which addressed
a state statute about pleading requirements for medical malpractice suits. 146 S. Ct.
at 553–54. Because that procedural statute conflicted with the pleading requirements
of Rule 8, the Supreme Court held that the state procedural law must yield to the
federal rules. Id. at 554. So too here. Lively’s request to determine her privilege
defense under California Civil Code Section 47.1(a) conflicts with the plain meaning
of Rule 12(b)(2), which limits courts to making jurisdictional findings of fact in
deciding motions to dismiss for lack of personal jurisdiction. See Bickham , 584 F.2d
at 737. Thus, the California procedural law must yield.

Liman seems to have the same doubts about 47.1 and Rule 54.  Note that if he thinks the two aren’t compatible, he has a “new” ground for rejecting Blake’s claim, one that lets him escape actually applying 47.1 here.[/quote]

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