Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]Reading is fundamental:

[i]Assuming [b](without deciding) [/b]that an application by a prevailing defendant for relief under California Civil Code Section 47.1(b) may be made pursuant to Federal Rule of Civil Procedure 54,[/i] which party bears the burden of proof of showing that the communication is privileged under Section 47.1(a), including whether that burden differs depending on whether the application is for attorneys’ fees alone or also for treble and punitive damages, [b]and whether the burden differs where Section 47.1(b) relief is sought through Rule 54 of the Federal Rules of Civil Procedure.[/b] The parties may also address how that burden may be discharged.

He could not be more explicit that there might be a different burden of proof when Rule 54 is invoked.

Further, the last time he used the "assuming without deciding" language was with respect to the enforcibility of the ALA, and he later made that the focus of oral argument.
[/quote]

Yes, there might be and there might not. That's why he's asking for arguments. Who is disputing this.

You can't read into that language the way you are here. This is just how judges request briefing on a specific issue and prevent parties from sneaking in other arguments. Also, as pointed out upthread, when he used the same language on the MSJ, it was because he actually did NOT dismiss all Lively's claims -- he retained three claims and in doing so had to evaluate the the merits of the underlying SH claims since they had direct bearing on the remaining three claims. It wasn't a trick to make you think he wasn't going to apply ALA, he actually needed to address the issues he was asking to have briefed. I would assume the same thing here. It does not mean he is going to decide 47.1 doesn't apply under FRCP 54. You're reading a pattern where one doesn't exist, and based on a misunderstanding of how he decided the prior motion.[/quote]

No party was arguing that a different burden of proof existed when 47.1 was applied in federal cases until Liman himself raised the possibility.  You can argue that has no significance but please, that’s a silly argument.

You also haven’t addressed Lively”s attempt to use 47.1 for a dismissal on jurisdictional grounds.  Liman is no doubt aware of it, and it shows how overbroad 47.1 is.[/quote]

It's important that Liman is focused on who has the burden of proof, yes. No one is arguing otherwise. It's just not obviously beneficial to either side?

Liman's job is not to consider if 47.1 is "over broad" nor to weigh in on the 47.1 motion in Texas. Neither of these things will have any bearing on Liman's decision. I don't actually have an obligation to "address" Lively's 47.1 motion in Texas, btw. I'm just a commenter on a message board. I honestly don't know much about the Texas proceedings at all so can't weigh in.[/quote]

I already said that Liman would be ruling on the case in front of him.  But Likely's TX motion makes obvious the manner in which R. 47.1 can easily be abused due to defects in drafting.  She can't stop herself from overreaching.[/quote]

I can't take you seriously when you write like this. I just can't. You are making it sound like Lively wrote 47.1. She's just seeking relief under it. You think she should refrain from seeking relief under an existing law because... why? Baldoni rules and she drools? Grow up.[/quote]

Grow up?  How about learn to read?  I said that  Blake seeking attorneys fees under Rule 47.1 on the basis of a MTD decided on purely procedural grounds was overreaching.   You can't even bring yourself to really defend it because it is quite simply ridiculous.  And
 if Rule 47.1 can be interpreted at supporting such abuse, it is an overbroad restriction on free speech.[/quote]

I don't understand why seeking fees on the basis of a granted MTD is overreach. If it's dismissed on the merits it's no different from a jury verdict. Actually better, because it means the lawsuit didn't have any legal merit at all, which makes it more likely a judge will grant fees for wasting everyone's time.

Courts award attorneys fees on the basis of a granted MTD all the time.[/quote]

DP her suit against him was dismissed in nyc for the exact same reason and he’s not able to collect fees under 47.1. The law is clearly problematic. She’s suing someone she’s never met for fees under a harassment anti slapp law. Make it make sense.[/quote]

It's easy to understand if you get that 47.1 was created because of the existing problem of people who have been accused, in good faith, of abuse or harassment, using the tactic of simply filing a baseless defamation lawsuit against their accuser in order silence them.

Lively's case was not dismissed for the "exact same reason" as Baldonis. In fact, her case was not dismissed -- some of her claims survived and the court went out of it's way to note that a jury could find that Lively had reasonably believed herself to have been sexually harassed. Meaning her claims were made in good faith, even if most were dismissed for other reasons.

Baldoni's lawsuit, even when viewed in the light most favorable to Baldoni/Wayfarer, failed to state a single claim for relief that could be supported by the law. Not even one. Against any defendants.

One of these was a good faith lawsuit based on a reasonable belief, the other was a meritless lawsuit filed as PR. 47.1 is only interested in punishing one of those.[/quote]

We’re talking about Jed…[/quote]

Why? There is no development in that case. The subject on the thread right now is the 47.1 motion before Liman because there's a hearing in his court on Monday. Why on earth would we be talking about the Texas case which is dormant at the moment?[/quote]

Because it is a related federal court case where Lively also filed for fees under 47.1?[/quote]

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