November 29, 2005
Bertrand Russell 3
Well, it's time once again for a Bertrand Russell party.
If you've been following along, you know the drill. If not, read on.
One of the flaws of the "holiday season" is that, since people like to spend it with their families, people with absent or obnoxious families get a week or two of time during which most of their friends are elsewhere. The solution is obvious: Host a Christmas party for all the people who don't have a Christmas party to go to.
So, there you have it. December 24th. Come by any time after 1PM, and before about 11ish. There will be some sort of snacks available, but you're welcome to bring more.
While the party is nominally a Christmas party, there will be little to no Christmas music, because I don't think anyone on the continental US will want to hear any by December 24th. This is not a gift-giving occasion, so you don't need to bring anything.
You are not required to know us personally, just to put in enough effort to figure out where we live (hint: It's in St. Paul, MN) and come by. You may pass this invitation along to friends who need a party to go to.
We anticipate the return of Jesse's exceptionally fine mulled cider, and possibly some apple crisp. This appears to be becoming an annual tradition.
If you like this idea, but can't come to ours, go ahead and host your own.
November 14, 2005
Wow.
We have a kitten, around 10 months, running around the house. He's energetic and bouncy, and loves to playfight; my hands are normally covered with tiny little scratches. Nothing serious, mind you.
Earlier today, he missed a jump, and I was nearby and tried to help him. Only he was already scared of falling and this big thing moved towards him, and he panicked.
I now have ten distinct open wounds, all gained in under a half second. I have nice thick scratches on three fingers on my right hand, and a hole in the back of my hand. I don't know how he did that. Two scratches on my left arm. A nice cluster of four holes in my leg, one of them fairly deep. All in under a half-second, and the leg injury is through fabric.
And to think, we keep them as pets.
November 11, 2005
Ways to eke more money out of ex-customers.
So, I run an ISP as a hobby. And for that, we have various services; T1 lines, things like that.
I recently discontinued one of these services, and moved another to a new provider. The resulting mistreatment has left me wondering what these people were thinking.
Exhibit 1 is McLeod USA. We were customers of these people because they were related closely to a company with whom we once had positive experiences. Our sales rep originally promised a product they didn't sell. Various hijinx ensued, and after months, we got a largish service credit and a downgrade... Although we spent our entire time there being billed for 12 lines, despite the sales rep's promises that we could go as low as 8. We never needed 12.
Anyway, I called recently to cancel the service. They said they would notify the relevant people. What is involved in terminating service? Well, someone has to push a button. Service cuts and terminations and setup are entirely trivial except in the cases where a physical line needs to be run. Termination doesn't require any new wiring. There is no technical reason at all for which it should take more than an hour to do. What actually happens?
Instead, the timeline is that, several days after I call in my request, I start getting calls from someone in "customer retention". When I call back, I am told that she is unavailable, and that no one else at the company can process my request. No one. Until she's around, my account cannot even begin the long and arduous hike to termination. Note that we're already a few days into my request. I leave detailed instructions including time of day. She calls back, not at the time I requested, but at a time when I am not around, and we play phone tag again. I finally reach her. She needs to confirm that I am requesting termination, waste a few minutes of my time trying to sell me other services, and so on. Then, and only then, she explains that they need a WRITTEN AUTHORIZATION. Why was I not told about this when I first called? Because they want me on their service, which costs real money, as long as possible. I finally get the paperwork and fax it in and so on. But, of course, she explains that it takes 30 to 45 business days to terminate service.
Gone are the days when you get billed for a full 30 days of service when you cancel; now we're up to 45 [b]business[/b] days. That's 9 weeks. 63 days. Maybe. They can't say. They insist that this is totally normal and that no one would ever be able to turn off a service more quickly than that.
I haven't seen my final bill, so I don't know what they're really charging me for. It could be about $1,000 more than I owe them under any theory that makes any kind of sense.
Exhibit 2 is Vector Internet. They're a largish local ISP. About four and a half years ago, we got a fractional T1 through them, on a "two year contract". Multi-year service commitments are a traditional component of the industry; the marginal cost of setup is high, so they waive it and give you lower rates if you commit to longer service. Of course, they also give you a discount because they know their costs will drop.
I was recently talking with them about upgrading to a larger portion of a T1, but someone else made me a better offer. So, I went with that, and cancelled. At this point, Vector informs me that they will, of course, charge me $940 for the remainder of my two-year contract.
WTF?
Well, it turns out that, contrary to every other contract I've ever seen, Vector's "multi-year" contract [b]automatically renews for the same term[/b]. So, rather than being two years and five months out of the commitment, I'm 19 months away from the end, and they are charging me 20% of the cost of 19 months of service at a price that is already roughly twice what they would charge with new service. (To put this in full perspective, if I'd upgraded my service to twice the bandwidth we used to have on a two-year contract and cancelled INSTANTLY, it would have cost only $170 more!)
Now, we'd been customers of Vector Internet since sometime in 1997, and we spent several years paying them $500/month for even less service than that, and we went four and a half years or so on a two-year contract. Some companies might figure they'd already had a long and profitable relationship, and there's no point in burning bridges, but Vector are bound and determined to get their $940.
So, well. It's not as if it'd be cost-effective to litigate this, even if I thought I'd win. 2001 was before I'd learned to compare the fine print on the contract with what the guy on the phone says. All I can do (and I did it) is move my DSL service away from them. But they managed to go, in one simple email, from "my default recommendation for internet service in the Twin Cities" to "stay away, they're mean".
Exhibit 3 is Direct Merchants Bank. I applied for "store" credit at Apple once, and ended up with a DMB credit card. Yesterday, they decided that they were going to spam every customer they could find. They didn't use any address I ever gave them; they used my secret apple-only address that they were not necessarily even supposed to have access to. When I called them, they said "well, we let you opt out, so if you haven't opted out already, obviously it's your own fault; shut up and eat your spam". (Not in those exact words.) So I said I wanted to cancel. Enter their new argument: If you cancel, we may change terms on your account at will because it's "non-negotiable". Whatever that means. So I have to pay the whole balance off immediately. Well, no problem, was gonna anyway. They do win a prize for repeated incomprehension or lies; I really can't tell which. Every time I said "no, what I want is for you to admit that you spammed me", they said "we can do that. We can take your name off the list". Idiots.
BTW, one other side note: My new upstream ISP is IpHouse. They're yet another local ISP. They are offering full T1s to many people for $200/month, which is pretty good. Also, when I moved my DSL from Vector to IpHouse, I went from 1.5Mbps to 7Mbps. My complaint, singular, about the service is that when I asked for a number at which to contact Qwest about a line problem, I received two identical responses from different support staff in under 5 minutes. Insofar as there's a complaint, I guess that was extra email.
Friendly, competent... What's not to like?
November 10, 2005
Never mind the numbers, I don't get what the damage is.
I recently had the opportunity, no, the privilege, to watch a court proceeding that I think would have been improved only by a car from which an unreasonably large number of clowns climbed during the course of the event.
Sitting with me in the back row were two robots and an inventor/comedian. Well, they were with me in spirit, anyway. I have taken the liberty of adding their comments to the court reporter's transcription, in the hopes that they will help the reader understand what happened.
What happened? What happened is probably the eventual death of the abusive and frivolous lawsuit filed by Source Lending against my lawyer, in an effort to create a conflict of interest and waste our time. Give it up, dude.
Page 1 1 STATE OF MINNESOTA DISTRICT COURT 2 COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT 3 4 5 ----------------------------------------------------------- 6 Source Lending, Incorporated, 7 Plaintiff, MOTIONS HEARING 8 vs. 9 FILE NO. 05-10780 10 Robert J. ELIDE, Jr., 11 and Steven Appelget, Esq., 12 13 Defendants. 14 ----------------------------------------------------------- 15 The above-entitled matter came on for hearing before the 16 Honorable Isabel Gomez, one of the Judges of the above- 17 named Court, on the 17th day of October, 2005, at the 18 Hennepin County Government Center, City of Minneapolis, 19 County of Hennepin, and State of Minnesota 20 21 Michael C. Mahoney, Esq., appeared on behalf of the 22 Plaintiff. 23 Steven T. Appelget, Esq., appeared on behalf of the 24 defendant Appelget. 25 REPORTER: Darlene Heinz ** Tom Servo, Rbt., did not appear. ** Crow T. Robot, Rbt., did not appear. ** Joel Hodgson, Cmdn., did not appear. ** Dr. Forrestor, M.Ph.D., did not appear. Page 2 1 THE COURT: We're here in the matter 2 of Source Lending, Incorporated, vs. Robert ELIDE and 3 Steven Appelget This is Court File 05-010780. 4 And we're here on Appleget's motion to 5 dismiss, to strike Paragraphs 9, 14, and 19 of the 6 Complaint, as well as Paragraphs 1 and 2 of the prayer for 7 relief, as a lessor -- I guess lessor included -- if the 8 Court were not to grant the motion to dismiss in its 9 entirety. 10 Now, counsel, would you enter your 11 appearances. 12 MR. MAHONEY: Good morning, Your 13 Honor. I am Michael C. Mahoney, appearing on behalf of 14 the plaintiff, Source Lending, Incorporated. With me is 15 my assistant, Gina L. Miller. 16 MR. APPELGET: Steven Appelget, 17 appearing on behalf of myself. 18 I do not represent Mr. ELIDE in this 19 matter. **CROW: Crow T. Robot, not appearing. **TOM: Tom Servo, not appearing. 20 THE COURT: And I understand that. 21 And as I indicated, I was aware the 22 motion was on your behalf. 23 It should be noted for the record that 24 while Mr. Appelget is pro se here today, he is an 25 attorney. **JOEL: I'm not late! Uhm. Joel Hodgson, not appearing. Page 3 1 Now, at the outset, I think one part 2 of the discussion we can just eliminate up front, is that 3 the Court certainly will grant the motion to strike the 4 claims for punitive damages, since that is clearly 5 inappropriate under the law regarding punitive damages. **CROW: Score one for the defense! **TOM: Don't count your chickens before they're hatched. 6 I have read the papers. 7 I should say, Mr. Mahoney, that the 8 file does not contain either a copy of Mr. Appelget's 9 affadavit of 5-27-05, or the ELIDE Complaint. 10 Your Complaint alleges -- you know, is 11 based on those documents. The Complaint says they're 12 attached. They're not attached, the Court doesn't have 13 them. So, I need those. 14 Do you have them today? 15 MR. MAHONEY: I may have them, Your 16 Honor. I have a hearing book. I will take a look and 17 see if I have those. 18 Also, there was a question, Your 19 Honor. about service of Mr. ELIDE, about whether Mr. ELIDE 20 had been served in this matter. 21 THE COURT: Well, since -- 22 Yes. Although, the Court is not 23 particularly concerning itself with that. 24 Certainly if you have proof of 25 service, we'll put it in the file. Page 4 1 MR. MAHONEY: I do, Your Honor. 2 If I may approach? 3 THE COURT: Absolutely, you may. 4 Thanks, Mr. Mahoney. 5 And I have accepted from Mr. Mahoney 6 an Affidavit of Service from a process server in Norfolk 7 County, in Massachusetts, indicating that there was 8 personal service to Mr. ELIDE in Massachusetts. 9 However, Mr. ELIDE's interests are not 10 at issue today. 11 Now, of course, there get to be issues 12 about service, under these circumstances, because this 13 Court does not -- 14 Well, we won't get into all of that. 15 As I just said, his interests are not at issue today, and 16 we will let that go. 17 Were you able to find the other 18 things? 19 MR. MAHONEY: No, Your Honor. 20 I have our moving papers. And I had 21 seen correspondence indicating that they had been filed. 22 But I don't have those with me. **JOEL: How're you stocked for socks and underwear? 23 I have the memorandum, the responsive 24 memorandum, the answer. 25 MR. APPELGET: If I may, Your Honor. Page 5 1 THE COURT: Yes. 2 MR. APPELGET: I do have my file copy 3 of the affidavit, and the ELIDE Complaint is Exhibit 1 to 4 that. 5 If someone would like to photocopy 6 approximately an inch of paper -- 7 THE COURT: Well, I need to read that 8 inch of paper, so -- 9 MR. APPELGET: If I may approach your 10 clerk? 11 THE COURT: Yes. 12 So I take it then I will have the 13 5-27 affadavit, as well as including the ELIDE 14 Complaint. 15 MR. APPELGET: The ELIDE Complaint is 16 an exhibit to the affadavit. 17 THE COURT: Thank You. 18 So, you should know that I have read 19 your memoranda and the attachments to those. 20 Mr. Appelget. 21 MR. APPELGET: Your Honor, this is a 22 matter that as the Northern District of Illinois called a 23 case once, is 100 percent conclusion, and zero percent 24 fact. **SFX: Alarms. Footage is interrupted for a hilarious segment ** in which Dr. Forrester introduces his Litigomatic, which tragically ** kills Frank with papercuts from high-speed pleadings. [...] Page 11 2 THE COURT: Excuse me. 3 So, Mr. Mahoney was not representing 4 Source when that Settlement Agreement was entered? 5 MR. APPELGET: He was representing 6 Source at that time. 7 THE COURT: So then he had the 8 information, right? 9 Just the way you did? 10 MR. APPELGET: I would presume so, 11 yes. 12 I don't know if I would like to go to 13 trial on a presumption. 14 THE COURT: Well, it would be pretty 15 hard to understand how an attorney could represent a 16 client, settle the case, and not know what the settlement 17 was. 18 But, call me crazy. **CROW: The foreshadowing is really clumsy. **JOEL: Maybe it's a plot point, and she's prescient. 19 Anyway, go ahead. 20 We don't need to stick with that. **TOM: Or to it. ** [ A commercial break, after which we return to the hearing. ] Page 12 9 MR. APPELGET: In any event, this 10 lawsuit has no basis in fact, and it's barred by law. 11 I have nothing further. **CROW: This is really boring. Do we need to go back to commercials again? **JOEL: I bet it gets better. 12 THE COURT: A thing that you said that 13 I had not -- it just didn't sink in previously, and I want 14 to make sure I got it right, you're saying that originally 15 the Seebach and ELIDE cases were filed at the same time, 16 or were running at the same time? 17 MR. APPELGET: No. They were not 18 commenced at the same time, but there was a time when they 19 overlapped. 20 THE COURT: What do you mean, 21 "overlapped?" 22 MR. APPELGET: Well, the ELIDE matter 23 commenced in May of 2003, and the Seebach matter 24 commenced, I believe, in October of 2003. And the 25 Settlement Agreement wasn't finalized until May of 2004. Page 13 1 THE COURT: Okay. Well, that is what 2 I thought -- 3 It's the general idea that I hadn't 4 recognized before. 5 I think I had it in my head, for 6 whatever reason, that ELIDE was concluded and settled, and 7 then Seebach was filed. **JOEL: Well, otherwise, this whole thing's stupid. **CROW: I think she just assumed it made sense. 8 MR. APPELGET: No, that is not the 9 case, Your Honor. 10 THE COURT: Thank you, Mr. Appelget. 11 Now, Mr. Mahoney, there were a couple 12 of things -- 13 I guess I will confine myself to the 14 question. 15 I do not understand your damages 16 theory in this case. Never mind the numbers, I don't get 17 what the damage is. **TOM: "The" damage, not "your" damage. I suppose that's charity. **CROW: I bet it turns out to be his anyway. 18 Because the way I read it, you're 19 saying if you lose the Seebach case, then somehow 20 Mr. Appelget and Mr. ELIDE get responsible for those 21 damages that you have to pay Seebach. And I'm not 22 getting that. 23 MR. MAHONEY: Well, Your Honor, I 24 think the theory of the case is that there was a 25 confidentiality agreement, a settlement, that was to Page 14 1 remain -- the terms, not necessarily the fact that it was 2 settled, or exactly the amount of money -- but the terms 3 surrounding the settlement. **JOEL: That's not even a sentence. **CROW: The theory of the case is a sentence fragment. **TOM: We have the settlement surrounded! Come out with your terms up. 4 And the theory of the case is that the 5 plaintiff in that case, and counsel who then submitted 6 that and publically filed it, created the information which 7 gives rise to the claim that Mr. Seebach subsequently 8 brought. **JOEL: So Seebach didn't bring the case until after his lawyer filed ** these documents in it? **CROW: This reminds me of Timecube. 9 That is, the facts of that settlement, 10 which were to remain confidential -- **TOM: The amount isn't a fact, though. Because it's a term OF the ** settlement, not a term surrounding the settlement. 11 THE COURT: Here is where I'm 12 confused. **TOM: Me too. 13 What I just heard was that he didn't 14 subsequently bring it, that he had already brought it, and 15 then the case was settled. 16 MR. MAHONEY: Well, I think that's a 17 fact question, Your Honor. **CROW: He said it was a fact question, everybody drink! **JOEL: That's a stupid rule. 18 THE COURT: Well, is it true or not? 19 MR. MAHONEY: As I stand here, I'm 20 not exactly sure. **TOM: Okay, I'm calling the judge crazy now. **JOEL: Give her a break, she's not crazy yet. 21 What I remember was that the case was 22 settled, and we are now proceeding with the second 23 lawsuit, the Seebach lawsuit. **JOEL: If only we had some way of recording these oh-so-transient ** sensory impressions, so that we could review them later. 24 And so the theory of whether we can 25 prove that the theory of the case, is that confidential Page 15 1 settlement needed to remain not filed, and could not give 2 rise to anyone ever finding that information. **JOEL: My head hurts. His theory is whatever he can prove? **TOM: Is this going to be on the test? 3 And if anyone ever did find that 4 information, that that information gives rise to 5 damages. The use of it gives rise to a cause of action 6 for breach of the contract. **CROW: But what if no one found that information until some idiot started ** a whole new case about it? **TOM: I thought I knew what "give rise to" means, but now I'm not sure. 7 THE COURT: And did you not disclose 8 it first? 9 MR. MAHONEY: We disclosed the fact 10 of the settlement -- 11 THE COURT: And the fact of how much 12 it was, et cetera? 13 MR. MAHONEY: And the dollar amount. **JOEL: Here it comes. 14 THE COURT: So was that not part of 15 the confidential information, and does not the Settlement 16 Agreement say, if you do that, that the confidentiality is 17 over? **JOEL: You know how they write "LOL" on the internet? This is what ** it's for. **CROW: I always wondered. What's "ROFL"? 18 MR. MAHONEY: No, I don't believe it 19 does, Your Honor. **TOM: Can I call her crazy now? **JOEL: It's a fine point. Maybe she's just charitable. 20 THE COURT: I haven't seen it but -- 21 MR. MAHONEY: I think that's also a 22 fact question. **CROW: He interrupted the judge! Everybody drink. **JOEL: It'd be a pretty easy question to answer if he'd attached ** the documents he said he had. **TOM: He was trying to save paper. **CROW: Oh, and he said it was a question of fact. Everybody drink ** again! 23 This is a rule 12 motion. **CROW: He said something true! Everybody drink! **JOEL: That's a stupid rule. **TOM: I bet lots of the things he says are true. 24 THE COURT: Well, it's kind of a -- 25 It's sort of slid into a Rule 56, Page 16 1 because there are all these -- 2 I'm not sure whether it's a Rule 56 or 3 not, because the documents -- 4 Actually, it's probably not. 5 The documents, though, upon which some 6 parts of the motion are based, should have been attached 7 to your Complaint. 8 And in that sense -- 9 [To Mr. Appelget] [You] Sit down. **CROW: Yeah! Sit down! **TOM: Oh, she totally owned him. 10 And in that sense, it is on the 11 pleadings. 12 But there are facts, or there are 13 things contained in the pleadings -- the Court certainly 14 can take notice of its own file, in terms of dates and 15 things. **JOEL: Assuming you're not talking about dates, recitations, ** acknowledgements, or notarizations. **CROW: I don't get it. **TOM: Crow doesn't get it, everybody drink! **CROW: That's a stupid rule. 16 MR. MAHONEY: That I believe is true, 17 Your Honor. **CROW: Which religion does that make him? **JOEL: I think it's from Luther's Little Catechism. 18 But I believe that there are fact 19 questions as to whether or not the words of the Settlement 20 Agreement, besides the fact of the settlement and the **TOM: See? This isn't over. There's questions of fact. **CROW and JOEL together: (bored) Everybody drinks. 21 dollar amount, the disclosure -- the fact that there is a 22 settlement, and the dollar amount, I don't believe give 23 rise to a breach under the contract. **CROW: *sputters, chokes, falls out of chair* **JOEL: Crow, that's what we mean when we write "ROFL". 24 That is really part of the fact 25 question is, did those facts give rise to any damages. **TOM: Fact question! **CROW: Pour me another. **JOEL: I think "give rise to" here is a synonym for "cause". Page 17 1 I don't believe they did. **CROW: What religion does that make him? **JOEL: ELCA. 2 THE COURT: Why not? 3 Won't that hurt -- **TOM: The procedure is completely painless. 4 Usually that is exactly the part that 5 people don't want out, that they paid. **TOM: But that's just what they want you to think! 6 So, if you disclosed the information 7 that you settled the case by paying, I would normally 8 consider that to be pretty significant. **CROW: Well, not as significant as the actual dollar amount. ($2,500) 9 MR. MAHONEY: I believe, Your Honor, 10 it is significant. 11 But I don't believe it gives rise to a 12 breach. I don't believe -- **JOEL: What does "give rise to" mean? **CROW: I think it means "I'm a lawyer." 13 THE COURT: Why is it not itself a 14 breach? 15 MR. MAHONEY: Because I don't believe 16 under the terms of the confidentiality agreement that it 17 is a breach. **TOM: NOW can I call her crazy? **JOEL: Well, uhm. **CROW: Yeah. 18 We only filed the release. **CROW: And put the dollar amount in a public filing. 19 The confidentiality agreement, that 20 four or five page document, was not filed. **JOEL: I don't think we're in Kansas anymore. 21 THE COURT: Well, I realize that. 22 But you did -- 23 You do agree that you did state in 24 your memorandum that there had been a settlement, and that 25 the settlement basically involved your paying Mr. ELIDE Page 18 1 some money? 2 MR. MAHONEY: Correct, Your Honor. 3 THE COURT: And then he dismissed -- 4 And then he relinquished any 5 additional claims. 6 What more would there be? 7 Was there more to it than that? **TOM: Here's where he brings out his surprise witness. 8 MR. MAHONEY: There is, Your Honor. 9 THE COURT: Like what, for example? **TOM: Here it comes. 10 MR. MAHONEY: There is in the 11 confidentiality agreement with respect to Source, its 12 business, the terms and conditions of the settlement. **JOEL: That wasn't even a sentence. 13 And we believe the submission of the 14 whole Settlement Agreement, which is now part of the 15 public file, is quite different than a discussion in a 16 paragraph of the Memorandum of Law. **CROW: Is a Memorandum of Law a part of the public file? 17 Now that document is available to 18 anyone. It's a publicly-filed document. And that public 19 filing of that document gives rise to the claim that 20 damage can result from. **JOEL: Damages result from claims? 21 So, on a Rule 12 motion, the only 22 question is, do the pleadings describe the facts necessary 23 to give rise to a claim. **CROW: I think that was true. Everybody drink just in case. 24 The facts are, there was a 25 confidentiality agreement, it provides it can't be Page 19 1 publicly disclosed, it was publicly disclosed. **TOM: It's good that this question of fact has been resolved. **JOEL: I don't drink when YOU say it. **CROW: Wait, I thought he didn't know. 2 There was a claim for damages. The 3 claim for damages indicates it's for in excess of 4 $10,000. **TOM: How many gumballs is that? **CROW: Oh, you don't want to go there. 5 THE COURT: Okay. Now, let's go 6 there. **TOM: Hey, she can hear us! 7 Because right now, you know, I'm 8 assuming you're correct about everything else you have 9 said. 10 What damages? **JOEL: This ought to be good. 11 MR. MAHONEY: The damages would be 12 the defense of this claim, and any other claim that may 13 come up. **TOM: And he's defending! **CROW: Making it his damage. Told you so. 14 There is currently pending -- 15 THE COURT: But if it is true that 16 this claim, the Seebach case -- 17 Is that what you mean by this claim? 18 MR. MAHONEY: Correct, Your Honor. **JOEL: May I have another? 19 THE COURT: So, if it is true that the 20 Seebach case was filed before the ELIDE settlement 21 occurred, how can you say that anything your client has to 22 pay to Seebach is somehow Mr. ELIDE's fault, or 23 Mr. Appelget's? **CROW: He could lie. 24 MR. MAHONEY: Because of the proof, 25 the evidence that comes from the now-filed confidentiality Page 20 1 agreement, which establishes the basis for the claim. **CROW: Told ya. **JOEL: So Seebach is suing over the confidentiality agreement? **TOM: I just like knowing that the claim has a basis. **CROW: I think the statement rejects our conventional dialectic. ** Everybody blow bubbles in your glass. 2 Had that not been filed -- 3 THE COURT: You would win, is that 4 what you're saying? 5 MR. MAHONEY: I think the case is 6 different, Your Honor. 7 I'm not saying we'd win. 8 It's the same kind of question, am I 9 competent to say we would win? **CROW: That's a very narrow look at the question. 10 I say the case is dramatically 11 different with the publicly-filed Settlement Agreement, 12 disclosing the terms and conditions of what was suppose[d] to 13 be a confidential settlement agreement. 14 THE COURT: Okay. So then you would 15 have to, additionally -- **TOM: Yeah? 16 I mean, you certainly could not 17 directly claim -- **JOEL: Yeah? 18 I mean, if that is your damage theory, 19 it seems to me that the case is not even ripe, because 20 nothing has happened. **TOM: Nothing has happened? How can she say this? A man's life is in ** ruins. **CROW: Who's that? **TOM: Some guy I saw today collecting tin cans. 21 I mean, you're saying, maybe something 22 would happen, and if it did, maybe there would be some 23 damages. **JOEL: I think she should award him subjunctive damages. Maybe there ** would be a check. 24 Because whatever it is that you say 25 has -- Page 21 1 You know, normally, we file lawsuits 2 when the damages have occurred. Whether they are 3 fully -- whether the damages have fully spun themselves 4 out is a different issue. But there have been some 5 damages. **TOM: You can tell she likes him because she's mentoring him on ** our legal system. 6 You're saying that the damage is that 7 you might lose this lawsuit, which you might not otherwise 8 lose. 9 We don't even know if you're going to 10 lose it at this point, so there isn't any damage if you 11 win. **JOEL: I think he already lost it. **CROW: I don't get it. 12 MR. MAHONEY: That may be true, Your 13 Honor, that it may be difficult to establish the level of 14 damages. **CROW: Some cultures don't even have the concept of zero. **JOEL: That's very true. 15 But I think the events giving rise to 16 the cause of action have occurred. **TOM: I think "giving rise to" is sort of like a comment in ** a programming language. 17 THE COURT: Well, today, what is the 18 damage that has occurred today? 19 MR. MAHONEY: The attorney's fees, 20 costs, and expenses related to the Seebach action. **JOEL: Huh? **CROW: It's like Who's on First, but without the comedic timing. 21 THE COURT: But you already were 22 defending that before the ELIDE thing ever happened. **CROW: Or so we would assume. But call me crazy. **TOM: You're crazy. 23 MR. MAHONEY: That's correct, Your 24 Honor. But it is enhanced, and made more difficult now by 25 the public filing. **JOEL: Huh? Page 22 1 THE COURT: Well, maybe it is, and 2 maybe it isn't. 3 But it just does not seem ripe to 4 me. 5 I have not -- **TOM: Yeah? 6 I can't even remember when I have 7 ever -- **CROW: Yeah? 8 I have dismissed cases for lack of 9 standing. I don't think I have dismissed a case because 10 it wasn't ripe, but -- 11 MR. MAHONEY: That seems -- **JOEL: And he interrupts her again. Everybody drink! **CROW: I think that's a question of fact. 12 THE COURT: It does not appear to me 13 to be ripe. **TOM: She interrupted him, spit it back out! 14 So maybe you need to give me some 15 cases about ripeness, so I can stop worrying about that. 16 MR. MAHONEY: Yes, Your Honor. I 17 will be glad to do that. 18 THE COURT: Go ahead, Mr. Mahoney, I 19 have kind of got you off on my track here. 20 MR. MAHONEY: That's where I need to 21 be, though. I need to be where the Court has questions. **JOEL: And that's "ROFLCOPTER". **CROW: *wheezing* 22 I have looked at this as a Rule 12 23 motion, and the Rule 8 standards for basic notice 24 pleading. 25 We have -- Page 23 1 I believe, the Complaint addresses the 2 minimum requirements for establishing a breach of 3 contract, and for tortious interference of that 4 contract. **JOEL: He believes this on faith alone, since he's obviously never ** read the complaint. **CROW: Faith is the enemy of reason. 5 The argument about identifying 6 damages, damages are clearly pled. Whether you can prove 7 damages, I think is a Rule 56 motion. **TOM: Does this make it a question of fact? 8 I don't believe that this case needs 9 to be considered under Rule 56 standards. 10 If the Court is going to consider it 11 under Rule 56 standards, we would appreciate the notice 12 and the opportunity to take discovery. **JOEL: This is only funny if you've ever seen him take discovery. **CROW: What's he do? **JOEL: I don't know, I've never seen him take discovery. 13 But I don't think it's necessary, Your 14 Honor. I think it can be analyzed under the pleadings. 15 There was a mention to the anti-slap 16 statute, the slap-statute. It has no application here, 17 because there is no public context. **JOEL: Well, if there's no public context, who cares about filings? 18 This is simply a lawsuit related to 19 damage for contract claims. 20 THE COURT: I'm not sure about that 21 either, because I would have to look at that. 22 I know that Mr. Appelget cited a part 23 of the statute. And I haven't looked at the statute for 24 years. 25 MR. MAHONEY: I can provide the Court **CROW: with a pony! Page 24 1 with the case on it. 2 A contract claim, a tortious 3 interference claim, has nothing to do with influencing 4 government. **TOM: See, here he's totally in his element. **JOEL: Making things up on the fly. 5 THE COURT: Well, what I'm talking 6 about, you know, the way the slap thing goes, as I recall 7 it is, you burden somebody else's doing a function that is 8 protected as somehow related to the government. 9 And I guess here the argument would 10 be, well, Mr. Appelget is, if you will, enforcing, or 11 going after an alleged violator of the law and suing, in 12 order to to that. 13 And certainly there are all this kind 14 of cases that say that damages -- there are those cases 15 that say, that when a citizen is doing that, he is acting 16 in sort of a quasi-attorney-general fashion, or whatever. 17 So, I'm not sure about that. 18 MR. MAHONEY: I can provide the Court 19 with -- 20 But Your Honor, may I end this with a 21 simple suggestion: 22 Given the Court's concern about 23 ripeness, I would like the opportunity to consider a 24 voluntary dismissal, based precisely on that. **TOM: Noooo! You were totally winning. 25 THE COURT: Sure. Page 25 1 MR. MAHONEY: Within -- by Wednesday 2 morning. 3 If we were to advise the Court that we 4 would voluntarily dismiss, based upon -- well, it doesn't 5 make any difference what the basis would be. 6 But it would be based upon the Court's 7 comments that this may not be ripe, and do a voluntary 8 dismissal without prejudice. **JOEL: So he can do this again later, after our entire notion of ** causality has changed. 9 I would advise the Court -- 10 I will call counsel before 9 a.m. 11 Wednesday, and then advise the Court what that conclusion 12 will be. 13 THE COURT: We would have to have, 14 otherwise, a briefing schedule, because I do -- I would 15 need to have that ripeness issue briefed, if you're going 16 on. 17 Because, as I said, it's not one that 18 I'm particularly familiar with. You know, I haven't 19 readily explored it in any depth at all. 20 MR. MAHONEY: Well, the Court's 21 point, I think, as I understand it is, if it's not ripe, 22 then I think my client should dismiss the claim. 23 And if damage is later established, we 24 can always re-address these same issues. 25 I will call counsel before 9 a.m., on Page 26 1 Wednesday. 2 THE COURT: Just to be clear, on the, 3 is this a Rule 56, because of comments I made earlier I 4 want to be clear that I agree with both sides that the 5 current motion can be decided on the pleadings, once we 6 have those documents that the pleadings say were attached. 8 And so I don't think we're at Rule 56, 9 because nobody is bringing in documents outside of that. 10 At least not that I recall. 11 And as to the damages thing, when I 12 think about ripeness, where I'm sticking is not that we 13 don't know an amount of damages, but that we don't know 14 whether -- we don't know really where the damages lie. **TOM: But he told you that! They give rise to a cause of action! **JOEL: From now on, "everybody drinks" does not include you. 15 MR. MAHONEY: Is it a causation 16 question, Your Honor? 17 THE COURT: Yes. 18 MR. MAHONEY: That's how I understood 19 it, Your Honor. 20 THE COURT: Mr. Appelget. 21 MR. APPELGET: I think the ripeness 22 issue would probably be disposed of based on cases 23 regarding, say, abusive of process and malicious 24 prosecution, which definitely require, in the context of 25 litigation about litigation, that the litigation that Page 27 1 you're suing about be ended. **CROW: Same word three times in one sentence, everybody drink! **JOEL: That's a stupid rule. 2 And there is a pretty good chain of 3 case law on that. 4 THE COURT: That is interesting. I 5 didn't know the chain, obviously. 6 MR. APPELGET: And I don't know if 7 the Court is sitll interested in actually having those -- 8 now in light of the discussion of a voluntary dismissal. 9 THE COURT: Well, I think we will 10 wait, because in order to conserve everybody's resources, 11 we will wait until Mr. Mahoney talks to his client, and 12 comes to a conclusion about the voluntary dismissal. 13 And then I would ask, Mr. Mahoney, if 14 you're not dismissing, that you schedule a telephone 15 conference so that we can figure out a briefing schedule 16 on the ripeness thin. 17 MR. MAHONEY: I understand, Your 18 Honor. 19 THE COURT: Thank you. 20 MR. MAHONEY: Thank you, Your Honor. 21 MR. APPELGET: Thank you, Your 22 Honor. **CROW: I think I prefer B-movies. **TOM: Yeah. We should sue.
November 04, 2005
Fundies Said the Darndest Things
A friend of mine, Allan (a.k.a. WinAce), just died of complications from cystic fibrosis. He was perhaps best known for his very funny web page, Fundies Say the Darndest Things. Where others might have preferred to take things out of context to make them look bad, Allan went out of his way to provide links so people could evaluate the context. He removed quotes when people were offended or hurt. In this, as in most things he did, he showed compassion and grace along with his inimitable sense of humor.
He maintained another humor site, a list of designed organisms for use in debates over intelligent design. He was endlessly amused by the naive and arrogant atheists, with no sense of humor, who would attempt to convince him of the error in his beliefs. (He once told me about an email exchange in which he used the demonic horses in the Lord of the Rings movies as evidence that it was a good thing for us that God killed all the not-quite-horses of which we find fossils. His correspondent apparently did not see anything implausible in this argument.)
Allan lived his entire life with cystic fibrosis, a genetic disorder that is mostly marked by lung failure. He was the youngest (and last to die) of four children, all of whom had cystic fibrosis. His parents did not understand statistics very well. He is survived by his wife Jessica, who posts on some BBS systems as OneForSorrow. They met in the #infidelchat IRC channel some years ago.
He was attempting to save up money for a lung transplant, which might have given him a number of years of life. Medicaid denied coverage on the grounds that it was possible he would not survive the operation. His sense of humor is evident in one of the ads he approved for it:
Here's a picture of him and Jessica:
He was a good person, and a good friend. He will be missed.
November 01, 2005
Fiddlefuckin'
We learned a new word today. The word is fiddlefuckin', and it refers to the process of refusing to waste time trying to help someone fix the glaring errors in his stipulation to dismiss a baseless lawsuit. As you may recall, Source Lending sued my lawyer to attempt to create conflict of interest. They now want to dismiss the case, perhaps after the hilarity of the judge's inimitable "I don't understand your theory of damages, Mr. Mahoney". (Apologies if the quote isn't exactly right; the transcript isn't done yet.) But they want to dismiss... And can't be bothered to write a stipulation to dismiss that does not contain flagrant errors.
Anyway, the context of the discussion is simple. This was the deposition of JDS Marketing, the people who brokered the junk faxes for Source. According to Source, they did not send any junk faxes at all, and if they did, they don't know how many or by what means. They also assure us that no one but Chris Hacker, their president, has any information that could lead us to information about the case. They have no records about the junk faxes, you see, because he paid for them with a personal check. Oh, and the reason they can't tell us the size of the fax run is that only some unidentified third party has the information. Months later, in conference with the judge, they came up with a mostly reconciled story, where JDS Marketing sold them junk fax stories. Their various conflicting answers have mostly been "supplemented" (read: corrected) to match this.
So the unidentified third party is probably JDS Marketing. We took their deposition today. They provided us with an invoice for 25,000 faxes, at a price of $0.07/fax, for a total of $1,750. Sold to, and paid by, Source Lending. Paid by credit card.
So. I have two faxes. Presumably maybe they paid one by check, and one by credit card? We can't be sure. However, what we do have now is that they bought 25,000 broadcast faxes. They did not buy a generic marketing plan that may have contained faxing. They bought broadcast faxes. That is the very essence of a willful and knowing violation of the law.
So, at $500/fax, treble damages for willful and knowing, they are on the hook for $37,500,000. (Less any faxes they may have already settled.)
It doesn't even matter that they sent another batch, or that their admissions are full of incompetent lies, or that they are apparently so ludicrously incompetent that they can't even tell whether it was paid by personal check or credit card. They are still legally on the hook, and baseless litigation against my attorney does not change anything.
Here's some happy documenty goodness for you to enjoy:
Here's the actual faxes. (The stickers reading "exhibit A" and "exhibit B" are not original.) There is one notable change between these and the original; Exhibit A has my fax number whited out. (It used to be after the "To:".) There are no other changes that I can detect.
Here's the requests for admissions, and their responses.
We start out with the general objections, all of which are just silly.
Now, we start seeing lunacy. In response to "Admit that your agent transmitted Exhibit A to Plaintiff", we get "Defendant further objects to this Request on the grounds that it seeks speculation, opinion, and legal conclusions, rather than the discovery of facts."
See, while many of us use what is known as the correspondence theory of truth, wherein facts are claims about events or objects occurring in the world external to our minds, Source Lending, doubtless named after the epistemological uncertainty from which all true knowledge must come, asserts that the very question of "what happened" is necessarily one of speculation, not of fact.
This one, once again, utilizes strange theories of truth. We also see a wacky argument. In their response to Request No. 5, asking about Exhibit A, they argue that since Exhibit A might not be the untouched original, they can't answer. Idiots! The way to argue that is to admit obviously true facts about the exhibit, then argue that the exhibit is not the fax. Instead, they lie.
Also, we start getting the denials about Exhibit A being sent by them to multiple fax machines. As always, the primary defense seems to be that any claim about historical events is inherently speculative.
More of the same. Note that our requests topped out at 10,000 facsimile machines; we didn't really anticipate 25,000. It is conceivable that they simply had no way of knowing whether or not they had permission, but in that case, they have no basis for denying that they had no permission. They got one right, though; in fact, the fax was sent on February 27th, not March 6th. (Cut and paste error by my lawyer. Bad Steve! No biscuit.) On the other hand, we could charitably assume that we put this in just as a quick test. Was their purpose to deny everything without even reading it, or were they specifically making false claims in response to every question? In this case, their claim is a true denial, so we find that they are denying everything, without regard to truth or falsehood.
Here, we see the same round of nonsense for Exhibit B. Note my personal favorite: They deny that it is an advertisement. What, I wonder, is it missing? Perhaps they are not aware of what the term "advertisement" means. Perhaps they do not actually provide any kind of mortgage services, and thus something that might appear to be an advertisement is in fact a sort of installation piece intended to provoke the reader/recipient into a kind of reevaluation of what we think of as "commerce" and the purpose of transmitting documents. Perhaps they just lied again.
By now you're used to this; same round of questions, same round of denials.
I invite the reader to explore the answer to Request No. 31. Look at Exhibit B yourself. Do you see any address at all, let alone one the recipient could write to to request to receive no further facsimiles, as required by Minnesota law? If you do, please contact us immediately, and I will retract my assertion that they are just plain lying here. (Note: I have redacted addresses from those documents which contained them, but Exhibit B never contained one. If it had, it would be a big black box, actual-black and not the half-black my scanner produces.)
But the overall sentiment is clear. Source did not send any faxes. Source did not cause any faxes to be sent. Source did not send two faxes, or ten, or a hundred, or a thousand, or ten thousand. Source did not send them in a boat, or on a plane. Source did not send them with a goat. Source did not send those green faxes and spam.
But, oops, they lied:
Source paid JDS marketing (a broker) to have someone send 25,000 faxes on their behalf. One of which I got. I also got an identical fax on 2/27/05, with the same contents. We don't have to figure out exactly how their multiple fax runs worked, or where the personal check that they've been hiding got to. We have many, many, lies from them, all with nice legal signatures. We have frivolous, baseless, lawsuits brought against my lawyer in a hilariously incompetent attempt to create a conflict of interest. We have stipulations to dismiss with serious factual errors. We have high comedy, and we have $37,000,000 in liability. Even without treble damages, we have over $12,000,000 in liability. And, we have a shiny new cuss word: Fiddlefuckin'. I recommend using it to complain about overly greasy chicken. It just sounds right.