Never mind the numbers, I don't get what the damage is.

2005-11-10 00:17

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
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.,
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
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?
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.
Peter Seebach



  1. Now I know why it took so long to get the transcript.

    — seebs_lawyer · 2005-11-10 01:16 · #

  2. I wandered over here from Metanoia, and I've ended up reading back through the archives on your blog here - very interesting reading. I appreciate your views on religion, being rather agnostic myself but having faith that there is something out there.

    Although the only thing I meant to say in this particular comment, is that I found your MSTing of this legal proceeding so hilarious that I was laughing out loud at several points, and you managed to make it entertaining enough that when my high school age sister came over to find out what I was laughing at, she read the rest of the transcript with me and found it all very funny.

    I'm not sure how much of it she actually understood, but I assure you it's quite an accomplishment to get a teenager to read the entirety of any legal document, even one as ridiculous in the first place as this one. The inserted comments make something that is merely funny completely hilarious, which I assume was the intention, so. You have most certainly succeeded, and thank you for the entertainment. :)

    — Kagi · 2008-09-26 12:26 · #

  3. Appelget was a former attorney of mine, who willfully mishandled my case in favor of the opposition as Appelget accepted a bribe. The entire matter was covered up by the Office of Lawyers professional Responsibility in order to protect Appelget as well as Judge Deborah Hedlund due to her complete incompetence.

    — David M. Wevley · 2014-03-22 14:00 · #