Well, if you haven't been following the issues, very briefly- Justin LaNasa (Lanasa) of nuTSR "fame" filed a lawsuit against another person in the TTRPG industry, Tenkar (and later, Tenkar's spouse) asserting claims for defamation, among other things.
After some time, the District Court (the federal trial court) dismissed the lawsuit. Lanasa appealed to the Second Circuit, and filed his initial brief. Which ... I did not think was particularly impressive.
www.enworld.org
Well, today Tenkar* filed his brief, and I am going to analyze it here for your reading pleasure. Or displeasure. I get paid by the word. I didn't do well in math... what happens when you multiply by zero? Anyway, the actual brief is here-
*You refer to the parties doing things, not their attorneys. Obviously, Tenkar's attorney filed the brief, not Tenkar himself. But attorneys are acting for the parties.
www.enworld.org
Feel free to download the pdf and read it. But without anymore throat clearing, I will be typing my analysis as I read it.
Preliminary Stuff
The title page, table of contents, and authorities all looks like good, law-like substance. No notes yet.
Preliminary Statement
This is something that is both useless to the merits (you aren't really citing law or making a factually neutral recitation of the facts) but that I think is incredibly useful. Basically, while it's not relevant to the issues, it's a chance to briefly say what you think the case is really about. This is short and presents the case well. Other than a weird turn of phrase at the end, it's a good preliminary statement that neither goes overboard nor goes too long.
Jurisdictional Statement
Tenkar is pointing out that because the federal court is exercising diversity jurisdiction, there is a required monetary amount. And since jurisdiction always has to be established, Tenkar is arguing that there is still a question as to whether the lower court (and thus this appellate court) ever should have heard the case because of jurisdiction. (Ans. at 2-4).
I have mixed feelings about this- yes, obviously you argue this point to "win," and because of the statute of limitations, the state law claims may be barred from state court. If that's the case, great point. But I'd be sure there is no possibility of those claims getting brought again, because a win on jurisdiction would mean that the dismissal goes away. I assume that this has been gamed out.
Issues Presented For Review
Well done (Ans. at 4-6). This is both kinda neutral, but also scathing. You can tell from the first one listed, when it asks if discovery issues are relevant to motions on the pleadings. Let me explain- Tenkar won on a "motion to dismiss," which must assume that allegations in the complaint are true. By definition, discovery doesn't matter. So by framing the initial brief this way, it's snarkily showing that all the stuff about discovery in the initial brief? Completely irrelevant.
Statement of Facts
Eh, this is approximately a million times better than Lanasa's, but I still have issues. There are some weird typos (accidentally writing "A" instead of Lanasa, Ans. 7), weird inconsistencies (such as going between the "District Court" and the "Court," - I normally only would use "the Court" for the Court I was before- not the lower tribunal), incorrect citations (citing to ECF, which is the lower tribunal's docket, instead of the record, Ans. at 7), and (IMO) making the mistake of adding legal argument into the facts ("These findings are all true and should not be disturbed." Ans. at 10).
It's a little too argumentative, and has a few too many statements devoid of factual support, for my taste- but it's both acceptable and so much better than the initial brief's statement of facts it is not even close. It actually provides the facts of what happened.
In fact, it was so bad that this brief addresses those facts (Ans. 11-14). Again, I would do this much differently- I would probably make it a footnote and more dismissive, and I wouldn't cite any law (because you don't in a statement of facts). But it's fine.
Standard of Review
Shockingly, this brief includes an actual standard of review! I love me some Iqbal/Twombly. The main thing is that while the dismissal for failure to state a claim is de novo, the other issues are abuse of discretion- or put another way, you're reminding the appellate court (not that they need reminding) that the thumb is on the scale for you on parts of the appeal. Of course, you're also reminding them that the APPELLANT (Lanasa) DID NOT INCLUDE THE STANDARD OF REVIEW, WHICH IS THE MOST BASIC PART OF APPELLATE PRACTICE. Sorry, that still annoys me.
THE CLAIMS
1. Discovery Is Irrelevant (Ans. 19-20)
This is a subtle framing issue. As I noted above, at the procedural posture of the case discovery is completely irrelevant to anything. So technically, this isn't even a part of Lanasa's appeal. Which means that this section doesn't absolutely have to be included. So why is it included and why is it first? Because of framing- Tenkar is pointing out that Lanasa spent time complaining about discovery issues in the case which are completely irrelevant to the appeal. By framing this as the first argument, you immediately are making the other side ... look bad. Because that's not arguable. In other words, you caught the other side whining, and now you're punishing them for it. I APPROVE.
2. Tenkar's Spouse Wasn't a Party (Ans. 21-22)
Tenkar's spouse ("Spouse") was never served, so she isn't a party. This is a slam dunk argument. And the footnote (Ans. 22 n.3) that points out that Lanasa was trying to argue that personal jurisdiction is "form over substance" is ... chef's kiss. No notes, short and sweet.
The argument about the extension might be a little more tenuous (Ans. 23-27) except ... Lanasa didn't make a good argument since he never really concentrated on the extension part, and the standard and violating the Court Order really count against him. Basically- Lanasa should have moved for the extension in the lower court, and then could have at least tried to argue that an extension was denied. But not attempting to cure that deficiency at the time makes it nearly impossible to interest an appellate court in fixing your fu... mess up.
3. Defamation, yo!
I'm not going through this again- the Answer does a good job reiterating what the District Court already said. I think it is unlikely that the Appellate Court will overrule this, but not impossible given the somewhat subjective nature of some of the claims and the standard for a motion to dismiss. The Answer goes further and argues for an actual malice standard stating that Lanasa is a public figure. The District Court didn't reach this issue, as it did not need to, but IMO if Lanasa was required to go under the actual malice standard his toast complaint would be ... more toast? Eh, you get it.
4 & 5- IIED and Prima Facie Tort
I've already stated that these are loser claims usually brought by los... ahem. Good support for the District Court's dismissal in the Answer.
6. Leave to Amend
This was (IMO) the strongest Lanasa issue, but it was never really argued properly in the initial brief. The Answer Brief does a good job pointing out that Lanasa never requested leave to amend, and the District Court, after seeing Lanasa violate a prior order allowing leave, was well within its discretion to dismiss with prejudice.
Honestly, I wish there was more to analyze, but this is pretty straightforward. I have some quibbles, but it's a well-written and competent answer brief. You can never predict what an appellate court would do, but I know if I was still in my clerkin' days, I'd bedrinking copiously and partying thinking, "One person is making an appellate argument, and one person isn't."
Anyway, hope this was helpful. If you have specific questions, I may or may not answer them.
After some time, the District Court (the federal trial court) dismissed the lawsuit. Lanasa appealed to the Second Circuit, and filed his initial brief. Which ... I did not think was particularly impressive.
nuTSR and the Defamation Lawsuit: How to Read the Appellate Brief of LaNasa
This is, of course, the 30th installment of Snarfsplains the Law (numbers are approximate, yet tiring). No one told me that there would be maths. And today we shall learn how to read an appellate brief and understand all the information in it, specifically, all of the information that is hidden...
www.enworld.org
Well, today Tenkar* filed his brief, and I am going to analyze it here for your reading pleasure. Or displeasure. I get paid by the word. I didn't do well in math... what happens when you multiply by zero? Anyway, the actual brief is here-
*You refer to the parties doing things, not their attorneys. Obviously, Tenkar's attorney filed the brief, not Tenkar himself. But attorneys are acting for the parties.
Second Circuit Answer Brief (Lanasa v. Tenkar)
The Answer Brief filed in the Second Circuit Appellate Case by LaNasa (re: Tenkar).
www.enworld.org
Feel free to download the pdf and read it. But without anymore throat clearing, I will be typing my analysis as I read it.
Preliminary Stuff
The title page, table of contents, and authorities all looks like good, law-like substance. No notes yet.
Preliminary Statement
This is something that is both useless to the merits (you aren't really citing law or making a factually neutral recitation of the facts) but that I think is incredibly useful. Basically, while it's not relevant to the issues, it's a chance to briefly say what you think the case is really about. This is short and presents the case well. Other than a weird turn of phrase at the end, it's a good preliminary statement that neither goes overboard nor goes too long.
Jurisdictional Statement
Tenkar is pointing out that because the federal court is exercising diversity jurisdiction, there is a required monetary amount. And since jurisdiction always has to be established, Tenkar is arguing that there is still a question as to whether the lower court (and thus this appellate court) ever should have heard the case because of jurisdiction. (Ans. at 2-4).
I have mixed feelings about this- yes, obviously you argue this point to "win," and because of the statute of limitations, the state law claims may be barred from state court. If that's the case, great point. But I'd be sure there is no possibility of those claims getting brought again, because a win on jurisdiction would mean that the dismissal goes away. I assume that this has been gamed out.
Issues Presented For Review
Well done (Ans. at 4-6). This is both kinda neutral, but also scathing. You can tell from the first one listed, when it asks if discovery issues are relevant to motions on the pleadings. Let me explain- Tenkar won on a "motion to dismiss," which must assume that allegations in the complaint are true. By definition, discovery doesn't matter. So by framing the initial brief this way, it's snarkily showing that all the stuff about discovery in the initial brief? Completely irrelevant.
Statement of Facts
Eh, this is approximately a million times better than Lanasa's, but I still have issues. There are some weird typos (accidentally writing "A" instead of Lanasa, Ans. 7), weird inconsistencies (such as going between the "District Court" and the "Court," - I normally only would use "the Court" for the Court I was before- not the lower tribunal), incorrect citations (citing to ECF, which is the lower tribunal's docket, instead of the record, Ans. at 7), and (IMO) making the mistake of adding legal argument into the facts ("These findings are all true and should not be disturbed." Ans. at 10).
It's a little too argumentative, and has a few too many statements devoid of factual support, for my taste- but it's both acceptable and so much better than the initial brief's statement of facts it is not even close. It actually provides the facts of what happened.
In fact, it was so bad that this brief addresses those facts (Ans. 11-14). Again, I would do this much differently- I would probably make it a footnote and more dismissive, and I wouldn't cite any law (because you don't in a statement of facts). But it's fine.
Standard of Review
Shockingly, this brief includes an actual standard of review! I love me some Iqbal/Twombly. The main thing is that while the dismissal for failure to state a claim is de novo, the other issues are abuse of discretion- or put another way, you're reminding the appellate court (not that they need reminding) that the thumb is on the scale for you on parts of the appeal. Of course, you're also reminding them that the APPELLANT (Lanasa) DID NOT INCLUDE THE STANDARD OF REVIEW, WHICH IS THE MOST BASIC PART OF APPELLATE PRACTICE. Sorry, that still annoys me.
THE CLAIMS
1. Discovery Is Irrelevant (Ans. 19-20)
This is a subtle framing issue. As I noted above, at the procedural posture of the case discovery is completely irrelevant to anything. So technically, this isn't even a part of Lanasa's appeal. Which means that this section doesn't absolutely have to be included. So why is it included and why is it first? Because of framing- Tenkar is pointing out that Lanasa spent time complaining about discovery issues in the case which are completely irrelevant to the appeal. By framing this as the first argument, you immediately are making the other side ... look bad. Because that's not arguable. In other words, you caught the other side whining, and now you're punishing them for it. I APPROVE.
2. Tenkar's Spouse Wasn't a Party (Ans. 21-22)
Tenkar's spouse ("Spouse") was never served, so she isn't a party. This is a slam dunk argument. And the footnote (Ans. 22 n.3) that points out that Lanasa was trying to argue that personal jurisdiction is "form over substance" is ... chef's kiss. No notes, short and sweet.
The argument about the extension might be a little more tenuous (Ans. 23-27) except ... Lanasa didn't make a good argument since he never really concentrated on the extension part, and the standard and violating the Court Order really count against him. Basically- Lanasa should have moved for the extension in the lower court, and then could have at least tried to argue that an extension was denied. But not attempting to cure that deficiency at the time makes it nearly impossible to interest an appellate court in fixing your fu... mess up.
3. Defamation, yo!
I'm not going through this again- the Answer does a good job reiterating what the District Court already said. I think it is unlikely that the Appellate Court will overrule this, but not impossible given the somewhat subjective nature of some of the claims and the standard for a motion to dismiss. The Answer goes further and argues for an actual malice standard stating that Lanasa is a public figure. The District Court didn't reach this issue, as it did not need to, but IMO if Lanasa was required to go under the actual malice standard his toast complaint would be ... more toast? Eh, you get it.
4 & 5- IIED and Prima Facie Tort
I've already stated that these are loser claims usually brought by los... ahem. Good support for the District Court's dismissal in the Answer.
6. Leave to Amend
This was (IMO) the strongest Lanasa issue, but it was never really argued properly in the initial brief. The Answer Brief does a good job pointing out that Lanasa never requested leave to amend, and the District Court, after seeing Lanasa violate a prior order allowing leave, was well within its discretion to dismiss with prejudice.
Honestly, I wish there was more to analyze, but this is pretty straightforward. I have some quibbles, but it's a well-written and competent answer brief. You can never predict what an appellate court would do, but I know if I was still in my clerkin' days, I'd be
Anyway, hope this was helpful. If you have specific questions, I may or may not answer them.
