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Now it’s WotC’s Turn: WotC Moves Against TSR3
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<blockquote data-quote="Snarf Zagyg" data-source="post: 8565870" data-attributes="member: 7023840"><p>Nope. </p><p></p><p>Look, this is getting into the weeds far beyond what we should be doing, but there are a bunch of basic issues here-</p><p></p><p>1. A motion to dismiss can't do anything but work with the complaint, and accept everything in it as true. WoTC can't let the court know about pesky things like "facts," for example. Even things that should be obvious (like a statute of limitations) often can't be done on a motion to dismiss.</p><p></p><p>2. Even if you win, that doesn't mean the case is over. Because ... (a) they can always re-plead and refile, and (2) it doesn't go to the merits, which means that nuTSR is still publishing their stuff.</p><p></p><p>(As a bonus point, while failure to state a claim is also usually raised as an affirmative defense, it shouldn't be, because the burden is on the plaintiff to state a claim, and affirmative defenses have the burden on the defendant; failure to state a claim is necessarily part of the prima facie case of the plaintiff)</p></blockquote><p></p>
[QUOTE="Snarf Zagyg, post: 8565870, member: 7023840"] Nope. Look, this is getting into the weeds far beyond what we should be doing, but there are a bunch of basic issues here- 1. A motion to dismiss can't do anything but work with the complaint, and accept everything in it as true. WoTC can't let the court know about pesky things like "facts," for example. Even things that should be obvious (like a statute of limitations) often can't be done on a motion to dismiss. 2. Even if you win, that doesn't mean the case is over. Because ... (a) they can always re-plead and refile, and (2) it doesn't go to the merits, which means that nuTSR is still publishing their stuff. (As a bonus point, while failure to state a claim is also usually raised as an affirmative defense, it shouldn't be, because the burden is on the plaintiff to state a claim, and affirmative defenses have the burden on the defendant; failure to state a claim is necessarily part of the prima facie case of the plaintiff) [/QUOTE]
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Now it’s WotC’s Turn: WotC Moves Against TSR3
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