Everything ends badly. Otherwise, it wouldn't end.
-Mary Todd Lincoln'sYelp Review of "Our American Cousin"
Been a heckuva 2025. I'm back again briefly because I heard that our long hobbyist nightmare had finally ended. That's right, we finally had a decision from the appellate court in the TTRPG defamation case. As I try to tell people- if you're looking for instant gratification, don't follow litigation. Try something with a better rush and more certain payoff- like watching the grass grow.
I lack the energy to do the full synopsis of the past. If you want to know how we got here, here's three posts detailing the history of the appeal of the litigation between Justin LaNasa ("Lanasa") of nuTSR "fame" and Tenkar (and Tenkar's spouse).
1. The opinion of the trial court and the original appellate brief of Lanasa.
2. The answer brief from Tenkar.
3. The reply brief from Lanasa.
Obligatory note- We refer to parties doing things, not their attorneys. So when I say that "Lanasa" did something legally (like chose a strategy) that means "Lanasa's attorney," because attorneys act for parties.
The summary order of the Court is posted as a resource, and I recommend reading it in order to understand what I am discussing. If'n you are interested. This won't be as in-depth as I normally go because I just can't.
1. It is over. Really.
Let me start by saying that technically there is nothing to stop Lanasa from trying to beat this dead horse some more in the hope that it returns to life.
But I will explain why he would be better off just throwing money into a bonfire.
First, this is a "summary order." The non-legal way to think of what the Court just did is that they said, "Your issues are so stupid and basic we don't even need to do a real order. Shut up and go away." I am simplifying a little here, but that's the gist. It's effectively a way for the Court to say, "The law says that water is wet. Your issue on appeal is that water is, in fact, not wet. But water is wet, and we aren't going to waste the time and the words to have to explain it to you in detail." Since this is a federal appellate court, not wasting time and words is "many months of time" and "ten pages of words" but no lawyer ever met something they couldn't over-explain.
The next problem is ... what is Lanasa going to do? He can ask for reconsideration- but the Court isn't going to reconsider something so banal and stupid that they just provided a summary order for. He could ask for the entire Second Circuit to take it en banc- but they won't, because summary orders are not precedential (have no binding effect) so even if the Court was wrong, and they Court isn't wrong, the entire Second Circuit won't care. Finally, you can always appeal to the Supreme Court- but that docket is discretionary, and not only is there nothing interesting in this case, it's all state law issues and the Supreme Court can't make decisions about the law of a state.*
*Again, simplifying- the Supreme Court can always say that a state law is invalid because it conflicts with the Constitution, but it won't construe a state's law. And the tort issues here are matters of state (New York) law.
So while it's possible for Lanasa to waste more money, the case is deader that Armie Hammer's dream of opening up a chain of restaurants called Armie Hammer's Arms and Hands More!
2. What did the Second Circuit Decide?
Essentially, the appellate court (the Second Circuit) basically said, "The District Court (the trial court) was right." If you look at the opinion, you will see that almost every single issue cites the exact same law that the District Court cited originally. It's not a rubber stamp, but it definitely rhymed with rubber stamp.
3. Was there anything interesting in the Opinion?
Weirdly, yes! If you go back to my prior analyses, you will see a mention of Erie. It's a really complicated concept, but the "close enough for horse shoes, hand grenades, and boring people at cocktail parties" version is this:
Federal court use federal procedure, but state substantive law. Wut?
Okay, try again. A federal court will apply the law that is required by federal law and the Federal Rules of Procedure if an issue is procedural, but it will apply the law of the state if the issue isn't procedural, but substantive. Why does this matter in this case- not just a little, but a LOT?
Brief detour- generally, when you draft a complaint, you are either in a "notice pleading" jurisdiction or a "fact pleading" jurisdiction. This matters a lot! Notice pleading doesn't require, um, a lot of the facts. And some long time ago, federal courts allowed you to do notice pleading. But then the Supreme Court interpreted the procedural rules to something now called "Iqbal/Twombly" which ... is a lot more like fact pleading. You might even say in some cases it's more stringent than fact pleading.
Look at the opinion Part II.A.4 (top of page 8). This is the most significant part of the entire opinion. Why? Because the Court agrees that some of the statements could have survived a motion to dismiss because they could be defamatory. What happened?
Well, New York substantive law applies. And in New York, falsity is an element of defamation. That means that a person has to plead (state in the complaint) that the statement is false. Because you have to plead all the elements.
...however, pleading standards are procedural, and federal pleading standards apply. So while you might be able to get away with filing a New York defamation case in New York State court and just say "That statement is false," if you have the same case in federal court ... you can't do that. You have to provide facts (allegations) as to why the statement is false! Just saying that it's false is a legal conclusion and not allowed. If someone defames you and (for example) calls you a Bard, you can't just plead that the statement is false. You have to plead ... that you are not a bard. The two statements might look the same, but they aren't- one is a legal conclusion, and one is a fact.
The reason that this matters is that it doesn't just destroy the few statements that might have survived ... it destroyed all of the defamation claim. If you go back and look at the rest of the analysis (Parts II.A.1 - .3), you see that in each part, there is a sentence stating that the Lanasa Complaint did not adequately plead / allege .... because in addition to the legal issues with the statements, even if there were not legal issues, there would still be the same pleading issue.
Something that I kept noting when reading Lanasa's submissions to the Court was that he didn't get what was going on at a very fundamental level. There should have been alarm bells going off about the federal / state distinction, but instead of addressing the problem (and it was NEVER addressed) Lanasa just kept arguing state law.
4. Okay, that's the defamation, what about everything else?
I'm not going to analyze the IIED (intentional infliction of emotional distress) or prima facie tort claims again because they were always losers. There are attorneys who seemingly believe if you add more claims your cause looks stronger- but that is only true if you add decent claims. Adding these two claims weakened the case immensely and there was no good reason to throw these into the appeal.
In the very first post on the subject I questioned the choice to appeal the service of Tenkar's spouse. I thought it was a bad decision to appeal it, but it was a worse decision to "front" it (make it the first argument). The opinion shows you why - these are the first four lines:
We review a dismissal based on insufficient service of process for abuse of discretion. See Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). Here, it is undisputed that Rachel has not been served. Plaintiffs’ primary argument is that they should be excused from Rule 4’s service requirement because Rachel had notice of the pendency of this action. They are mistaken.
Ouch. A federal judge is not going to say, YA BURNT!" But this is as close to a Court telling a litigant that they are stupid that you are likely to see. Again, you never, ever, ever want your worst argument to be your first argument.
5. Look for the Negative Space
At the very end of the opinion, before it affirms the District Court, you see the following sentence:
We have considered plaintiffs’ remaining arguments and find them to be without merit.
Now, there is a good reason for this in general. Obviously, it takes care of any of the other .... collateral ... issues that Lanasa tried to introduce incorrectly that a Court was just like, "We can't even." But here's the thing- there was actually another, important, correctly raised issue on appeal- denial of leave to amend. Why didn't this get addressed?
In my opinion, it's because Lanasa raised it, but made it the last and most unimportant argument. And instead of arguing it correctly, conflated it with the service of process argument. Getting booted on the second amended complaint ... that's kind of harsh! I assume that the Court just felt that they shouldn't waste time analyzing what might have happened if the issue had been argued correctly. In addition, even though the opinion doesn't set any precedent, it can still be cited (persuasive authority). It was much easier for the Court to just dismiss the argument sub silentio than worry about how some litigant might use it in the future. Or, put another way, "The rest of your arguments are so bad, we aren't giving you the benefit of any writing that might give you solace."
That's too much to read! Do you have a TLDR of the Court's Opinion?
Sure!
-Mary Todd Lincoln'sYelp Review of "Our American Cousin"
Been a heckuva 2025. I'm back again briefly because I heard that our long hobbyist nightmare had finally ended. That's right, we finally had a decision from the appellate court in the TTRPG defamation case. As I try to tell people- if you're looking for instant gratification, don't follow litigation. Try something with a better rush and more certain payoff- like watching the grass grow.
I lack the energy to do the full synopsis of the past. If you want to know how we got here, here's three posts detailing the history of the appeal of the litigation between Justin LaNasa ("Lanasa") of nuTSR "fame" and Tenkar (and Tenkar's spouse).
1. The opinion of the trial court and the original appellate brief of Lanasa.
2. The answer brief from Tenkar.
3. The reply brief from Lanasa.
Obligatory note- We refer to parties doing things, not their attorneys. So when I say that "Lanasa" did something legally (like chose a strategy) that means "Lanasa's attorney," because attorneys act for parties.
The summary order of the Court is posted as a resource, and I recommend reading it in order to understand what I am discussing. If'n you are interested. This won't be as in-depth as I normally go because I just can't.
Resource icon
1. It is over. Really.
Let me start by saying that technically there is nothing to stop Lanasa from trying to beat this dead horse some more in the hope that it returns to life.
But I will explain why he would be better off just throwing money into a bonfire.
First, this is a "summary order." The non-legal way to think of what the Court just did is that they said, "Your issues are so stupid and basic we don't even need to do a real order. Shut up and go away." I am simplifying a little here, but that's the gist. It's effectively a way for the Court to say, "The law says that water is wet. Your issue on appeal is that water is, in fact, not wet. But water is wet, and we aren't going to waste the time and the words to have to explain it to you in detail." Since this is a federal appellate court, not wasting time and words is "many months of time" and "ten pages of words" but no lawyer ever met something they couldn't over-explain.
The next problem is ... what is Lanasa going to do? He can ask for reconsideration- but the Court isn't going to reconsider something so banal and stupid that they just provided a summary order for. He could ask for the entire Second Circuit to take it en banc- but they won't, because summary orders are not precedential (have no binding effect) so even if the Court was wrong, and they Court isn't wrong, the entire Second Circuit won't care. Finally, you can always appeal to the Supreme Court- but that docket is discretionary, and not only is there nothing interesting in this case, it's all state law issues and the Supreme Court can't make decisions about the law of a state.*
*Again, simplifying- the Supreme Court can always say that a state law is invalid because it conflicts with the Constitution, but it won't construe a state's law. And the tort issues here are matters of state (New York) law.
So while it's possible for Lanasa to waste more money, the case is deader that Armie Hammer's dream of opening up a chain of restaurants called Armie Hammer's Arms and Hands More!
2. What did the Second Circuit Decide?
Essentially, the appellate court (the Second Circuit) basically said, "The District Court (the trial court) was right." If you look at the opinion, you will see that almost every single issue cites the exact same law that the District Court cited originally. It's not a rubber stamp, but it definitely rhymed with rubber stamp.
3. Was there anything interesting in the Opinion?
Weirdly, yes! If you go back to my prior analyses, you will see a mention of Erie. It's a really complicated concept, but the "close enough for horse shoes, hand grenades, and boring people at cocktail parties" version is this:
Federal court use federal procedure, but state substantive law. Wut?
Okay, try again. A federal court will apply the law that is required by federal law and the Federal Rules of Procedure if an issue is procedural, but it will apply the law of the state if the issue isn't procedural, but substantive. Why does this matter in this case- not just a little, but a LOT?
Brief detour- generally, when you draft a complaint, you are either in a "notice pleading" jurisdiction or a "fact pleading" jurisdiction. This matters a lot! Notice pleading doesn't require, um, a lot of the facts. And some long time ago, federal courts allowed you to do notice pleading. But then the Supreme Court interpreted the procedural rules to something now called "Iqbal/Twombly" which ... is a lot more like fact pleading. You might even say in some cases it's more stringent than fact pleading.
Look at the opinion Part II.A.4 (top of page 8). This is the most significant part of the entire opinion. Why? Because the Court agrees that some of the statements could have survived a motion to dismiss because they could be defamatory. What happened?
Well, New York substantive law applies. And in New York, falsity is an element of defamation. That means that a person has to plead (state in the complaint) that the statement is false. Because you have to plead all the elements.
...however, pleading standards are procedural, and federal pleading standards apply. So while you might be able to get away with filing a New York defamation case in New York State court and just say "That statement is false," if you have the same case in federal court ... you can't do that. You have to provide facts (allegations) as to why the statement is false! Just saying that it's false is a legal conclusion and not allowed. If someone defames you and (for example) calls you a Bard, you can't just plead that the statement is false. You have to plead ... that you are not a bard. The two statements might look the same, but they aren't- one is a legal conclusion, and one is a fact.
The reason that this matters is that it doesn't just destroy the few statements that might have survived ... it destroyed all of the defamation claim. If you go back and look at the rest of the analysis (Parts II.A.1 - .3), you see that in each part, there is a sentence stating that the Lanasa Complaint did not adequately plead / allege .... because in addition to the legal issues with the statements, even if there were not legal issues, there would still be the same pleading issue.
Something that I kept noting when reading Lanasa's submissions to the Court was that he didn't get what was going on at a very fundamental level. There should have been alarm bells going off about the federal / state distinction, but instead of addressing the problem (and it was NEVER addressed) Lanasa just kept arguing state law.
4. Okay, that's the defamation, what about everything else?
I'm not going to analyze the IIED (intentional infliction of emotional distress) or prima facie tort claims again because they were always losers. There are attorneys who seemingly believe if you add more claims your cause looks stronger- but that is only true if you add decent claims. Adding these two claims weakened the case immensely and there was no good reason to throw these into the appeal.
In the very first post on the subject I questioned the choice to appeal the service of Tenkar's spouse. I thought it was a bad decision to appeal it, but it was a worse decision to "front" it (make it the first argument). The opinion shows you why - these are the first four lines:
We review a dismissal based on insufficient service of process for abuse of discretion. See Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). Here, it is undisputed that Rachel has not been served. Plaintiffs’ primary argument is that they should be excused from Rule 4’s service requirement because Rachel had notice of the pendency of this action. They are mistaken.
Ouch. A federal judge is not going to say, YA BURNT!" But this is as close to a Court telling a litigant that they are stupid that you are likely to see. Again, you never, ever, ever want your worst argument to be your first argument.
5. Look for the Negative Space
At the very end of the opinion, before it affirms the District Court, you see the following sentence:
We have considered plaintiffs’ remaining arguments and find them to be without merit.
Now, there is a good reason for this in general. Obviously, it takes care of any of the other .... collateral ... issues that Lanasa tried to introduce incorrectly that a Court was just like, "We can't even." But here's the thing- there was actually another, important, correctly raised issue on appeal- denial of leave to amend. Why didn't this get addressed?
In my opinion, it's because Lanasa raised it, but made it the last and most unimportant argument. And instead of arguing it correctly, conflated it with the service of process argument. Getting booted on the second amended complaint ... that's kind of harsh! I assume that the Court just felt that they shouldn't waste time analyzing what might have happened if the issue had been argued correctly. In addition, even though the opinion doesn't set any precedent, it can still be cited (persuasive authority). It was much easier for the Court to just dismiss the argument sub silentio than worry about how some litigant might use it in the future. Or, put another way, "The rest of your arguments are so bad, we aren't giving you the benefit of any writing that might give you solace."
That's too much to read! Do you have a TLDR of the Court's Opinion?
Sure!
