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 (also intentional infliction of emotional distress "IIED" and prima facie tort).
After some time, the District Court (the trial court) dismissed the lawsuit with prejudice which ends the case deader than nuTSR. Lanasa appealed the decision to the Second Circuit (the appellate court). In an appeal, there are normally three briefs- the initial brief (Lanasa), an answer brief (Tenkar), and then a reply brief (Lanasa). I have previously detailed my thoughts about the initial brief-
www.enworld.org
And the answer brief-
www.enworld.org
Today, I will be doing an analysis of the final brief- the reply brief. I posted a copy of it in resources (look for the download option), and you are welcome to read it yourself. It will help you follow along with this post.
www.enworld.org
Obligatory note- We refer to parties doing things, not their attorneys. So when I say that "Lanasa" did something in the brief, that means "Lanasa's attorney," but attorneys act for parties.
So that is all the background. I am currently doing this quickly in a hotel, and I will be typing my analysis as I read the reply brief.
1. The Table of Authorities has me deeply worried.
Every brief has a table of authorities that lists all the legal authorities that the brief uses, along with the page numbers. Normally, I skip right over this. But given the past issues I've seen with Lanasa's arguments, I actually looked at it briefly. And it has me concerned. To explain- not all "authority" is created equally. The two main things that I can explain easily is that some authority doesn't matter because it's the wrong "level"- common law systems, like America, work on the idea that precedent is created by the higher courts in the food chain, and that lower courts then follow that follow that precedent. Or to put it in simple terms- a "trial court" doesn't really create precedent- it applies the precedent from an appellate court. So the first issue I see is that the brief ... it cites so many trial court opinions. Which is something you don't often see, and almost never want to do, in an appellate brief. The appellate court doesn't care what some trial court once did- it cares what an appellate court started the rule (the precedent) is that trial courts must follow.
The second problem is the brief uses almost no law that is binding on the 2d Circuit. The law that binds the 2d Circuit is ... 2d Circuit law and opinions from the Supreme Court. Other law from other places might be persuasive or interesting, but the 2d Circuit probably doesn't care what other random courts might say if the other side has already said, "This is what the law is here." So, again, just looking at the table of authorities makes me really worried about what I am about to read.
2. A preliminary counter-statement?
If you want to make a preliminary statement, then you need to be making a short and succinct point that provides the appellate court your version of events- in a reply brief, it would be your quick version of why the answer brief is ... misguided (you want to kill them with statements like that ... they aren't lying liars, but they repeatedly make ... "curious misstatements" and "do not, as they cannot, cite to the record to support the incredible claims they are making..."). Lanasa, instead, makes an argument here- and, worse, using this to argue law. Bad form.
Also? This is the first argument made, and it's a terrible one because it's a stupid one. To understand why, I will explain as best I can very quickly- federal courts have a requirement that they have jurisdiction over a case. Without jurisdiction, there is no case. Jurisdiction is something that can be raised at any time, even by the court, because it's part of the very power of an Article III court to hear the case- it cannot be waived, ever, even by consent of the parties. So Lanasa's argument is bad and stupid. Technically, the appellate court itself could sue sponte inquire into jurisdiction. But the simple issue here is that this is a diversity action, jurisdiction is dependent on money, and money is a factual issue- the argument should be that the fact was determined by the trial court. Anyway ... I am already hating this reply. They fronted a terrible argument, and they put it as a preliminary statement. MOVING ON!
3. FACTS?
This is a reply brief. You do not add additional or corrected facts. You had the first brief, and you had the ability to state all the relevant facts. There should never be a facts section, even some weird caveat statement, in a reply brief. NEVER.
4. DISCOVERY???!!!???
As they teach you in law school, always lead with the argument that makes you a laughing stock. Wait, they don't say that? Well, Lanasa didn't get the memo. The first "argument" made by Lanasa (other than the one improperly made in a preliminary statement) is that Lanasa should have been able to conduct discovery. Because that would have made things different.
This is an appeal of a motion to dismiss- the causes of action were based on a failure to state a claim. In other words, ALLEGATIONS. Discovery .... doesn't matter. Period. Worse, reading this truly makes me wonder if Lanasa understands anything about the way the Federal Rules of Civil Procedure work, because he actually has the chutzpah to complain that the judge allowed "discovery" (affidavits) for .... domicile and other issues which is ALLOWED.
The first rule of holes is that when you're in one, stop digging. Tenkar's answer brief mentioned the discovery issue in passing, basically for a sick (but irrelevant) burn. Reading this makes me realize that Tenkar's sick burn wasn't, in fact, sick enough. Lanasa .... truly doesn't understand how stupid this is. (All this is, of course, IMO, but this made me repeatedly wince ... I have never seen this argument made, and I hope to not see it again)
5. The failure of Lanasa to ever serve Tenkar's Spouse is actually okay, because reasons.
Service is one of the most important things in litigation. The blithe way that the brief makes the argument that they named the wrong person, and SERVED the wrong person, and were SUING the wrong person, but it's all really other people's fault because ... reasons ... is a terrible argument. You have to serve the person. If, as they seem to claim in this, they knew they were saying the spouse, then .... why didn't they serve her? It just is an ouroboros of stupidity. There is a decent argument about leave to amend to serve, but this argument, here? Terrible. Accepting this argument basically means that you don't have to bother serving people to a lawsuit, because reasons. If it wasn't for the discovery argument, this would be the worst argument I've read in some time.
6. On page 14, Lanasa FINALLY addresses the one argument that I think he has a chance on. But does so .... poorly.
Wow. This is the one legal argument that should be good, that might have a chance, and yet.... The first three pages are meaningless throat clearing and a policy argument. Then, it starts by citing a trial court case out of Puerto Rico (which is not only a trial court case, it applies the defamation law of Puerto Rico and the federal procedural law of the 1st Cir., not the 2d Cir......). And then a bunch of other cases that have no relelvance. And then a BANKRUPTCY case. So bad. So so bad.
To simplify- all Lanasa had to do was as follows:
1. Point to an allegation in the complaint.
2. Point to a case (preferably 2d Cir. applying NY law) showing that this exact type of allegation is sufficient to survive a motion to dismiss.
3. Point to something that shows that you don't need to apply federal pleading standard to defamation claim, and saying something is "false" is sufficient.
There. One page, max. And if that was done, you win the appeal! Yet, it wasn't.
7. IIED and Prima Facie Tort? Nope.
These are terrible, but I will make this simple- if you can't get defamation, you aren't coming close to IIED. And it's never prima facie tort. Might as well plead RICO.
8. Leave to Amend, finally argued, but done incorrectly.
I have to head back out, so I will say this- leave to amend was probably the best overall argument, but it wasn't really addressed until the reply brief. I would say that the argument mischaracterizes the record, but it at least makes a cognizable argument (FINALLY) that leave to amend might have been granted. Of course ... it doesn't actually invoke the APPELLATE COURT STANDARD for review. Because at this point, why would Lanasa do something correctly..... sigh
What's next?
Oral arguments have been requested. These are not granted automatically, but the 2d Cir. does grant them at a high rate. However, this is such a routine appeal (and poorly argued) I could imagine them not granting it.
An appeal in this procedural posture (order granting a motion to dismiss with prejudice for failure to state a claim) normally has a high likelihood of success, so you can't say that Lanasa is doomed. But these briefs and arguments are so bad that for Lanasa to win, at this point, would require the appellate panel to swoop in and save him from himself.
After some time, the District Court (the trial court) dismissed the lawsuit with prejudice which ends the case deader than nuTSR. Lanasa appealed the decision to the Second Circuit (the appellate court). In an appeal, there are normally three briefs- the initial brief (Lanasa), an answer brief (Tenkar), and then a reply brief (Lanasa). I have previously detailed my thoughts about the initial brief-
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
And the answer brief-
TSR - nuTSR and the Defamation Lawsuit Part II: The Answer!
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...
www.enworld.org
Today, I will be doing an analysis of the final brief- the reply brief. I posted a copy of it in resources (look for the download option), and you are welcome to read it yourself. It will help you follow along with this post.
Reply Brief (LaNasa v. Tenkar)
Snarf Zagyg submitted a new resource: Reply Brief (LaNasa v. Tenkar) - LaNasa's Reply Brief in Defamation Appeal (2d Cir.) This is the reply brief filed in the LaNasa/Tenkar appeal. Read more about this resource...
www.enworld.org
Obligatory note- We refer to parties doing things, not their attorneys. So when I say that "Lanasa" did something in the brief, that means "Lanasa's attorney," but attorneys act for parties.
So that is all the background. I am currently doing this quickly in a hotel, and I will be typing my analysis as I read the reply brief.
1. The Table of Authorities has me deeply worried.
Every brief has a table of authorities that lists all the legal authorities that the brief uses, along with the page numbers. Normally, I skip right over this. But given the past issues I've seen with Lanasa's arguments, I actually looked at it briefly. And it has me concerned. To explain- not all "authority" is created equally. The two main things that I can explain easily is that some authority doesn't matter because it's the wrong "level"- common law systems, like America, work on the idea that precedent is created by the higher courts in the food chain, and that lower courts then follow that follow that precedent. Or to put it in simple terms- a "trial court" doesn't really create precedent- it applies the precedent from an appellate court. So the first issue I see is that the brief ... it cites so many trial court opinions. Which is something you don't often see, and almost never want to do, in an appellate brief. The appellate court doesn't care what some trial court once did- it cares what an appellate court started the rule (the precedent) is that trial courts must follow.
The second problem is the brief uses almost no law that is binding on the 2d Circuit. The law that binds the 2d Circuit is ... 2d Circuit law and opinions from the Supreme Court. Other law from other places might be persuasive or interesting, but the 2d Circuit probably doesn't care what other random courts might say if the other side has already said, "This is what the law is here." So, again, just looking at the table of authorities makes me really worried about what I am about to read.
2. A preliminary counter-statement?
If you want to make a preliminary statement, then you need to be making a short and succinct point that provides the appellate court your version of events- in a reply brief, it would be your quick version of why the answer brief is ... misguided (you want to kill them with statements like that ... they aren't lying liars, but they repeatedly make ... "curious misstatements" and "do not, as they cannot, cite to the record to support the incredible claims they are making..."). Lanasa, instead, makes an argument here- and, worse, using this to argue law. Bad form.
Also? This is the first argument made, and it's a terrible one because it's a stupid one. To understand why, I will explain as best I can very quickly- federal courts have a requirement that they have jurisdiction over a case. Without jurisdiction, there is no case. Jurisdiction is something that can be raised at any time, even by the court, because it's part of the very power of an Article III court to hear the case- it cannot be waived, ever, even by consent of the parties. So Lanasa's argument is bad and stupid. Technically, the appellate court itself could sue sponte inquire into jurisdiction. But the simple issue here is that this is a diversity action, jurisdiction is dependent on money, and money is a factual issue- the argument should be that the fact was determined by the trial court. Anyway ... I am already hating this reply. They fronted a terrible argument, and they put it as a preliminary statement. MOVING ON!
3. FACTS?
This is a reply brief. You do not add additional or corrected facts. You had the first brief, and you had the ability to state all the relevant facts. There should never be a facts section, even some weird caveat statement, in a reply brief. NEVER.
4. DISCOVERY???!!!???
As they teach you in law school, always lead with the argument that makes you a laughing stock. Wait, they don't say that? Well, Lanasa didn't get the memo. The first "argument" made by Lanasa (other than the one improperly made in a preliminary statement) is that Lanasa should have been able to conduct discovery. Because that would have made things different.
This is an appeal of a motion to dismiss- the causes of action were based on a failure to state a claim. In other words, ALLEGATIONS. Discovery .... doesn't matter. Period. Worse, reading this truly makes me wonder if Lanasa understands anything about the way the Federal Rules of Civil Procedure work, because he actually has the chutzpah to complain that the judge allowed "discovery" (affidavits) for .... domicile and other issues which is ALLOWED.
The first rule of holes is that when you're in one, stop digging. Tenkar's answer brief mentioned the discovery issue in passing, basically for a sick (but irrelevant) burn. Reading this makes me realize that Tenkar's sick burn wasn't, in fact, sick enough. Lanasa .... truly doesn't understand how stupid this is. (All this is, of course, IMO, but this made me repeatedly wince ... I have never seen this argument made, and I hope to not see it again)
5. The failure of Lanasa to ever serve Tenkar's Spouse is actually okay, because reasons.
Service is one of the most important things in litigation. The blithe way that the brief makes the argument that they named the wrong person, and SERVED the wrong person, and were SUING the wrong person, but it's all really other people's fault because ... reasons ... is a terrible argument. You have to serve the person. If, as they seem to claim in this, they knew they were saying the spouse, then .... why didn't they serve her? It just is an ouroboros of stupidity. There is a decent argument about leave to amend to serve, but this argument, here? Terrible. Accepting this argument basically means that you don't have to bother serving people to a lawsuit, because reasons. If it wasn't for the discovery argument, this would be the worst argument I've read in some time.
6. On page 14, Lanasa FINALLY addresses the one argument that I think he has a chance on. But does so .... poorly.
Wow. This is the one legal argument that should be good, that might have a chance, and yet.... The first three pages are meaningless throat clearing and a policy argument. Then, it starts by citing a trial court case out of Puerto Rico (which is not only a trial court case, it applies the defamation law of Puerto Rico and the federal procedural law of the 1st Cir., not the 2d Cir......). And then a bunch of other cases that have no relelvance. And then a BANKRUPTCY case. So bad. So so bad.
To simplify- all Lanasa had to do was as follows:
1. Point to an allegation in the complaint.
2. Point to a case (preferably 2d Cir. applying NY law) showing that this exact type of allegation is sufficient to survive a motion to dismiss.
3. Point to something that shows that you don't need to apply federal pleading standard to defamation claim, and saying something is "false" is sufficient.
There. One page, max. And if that was done, you win the appeal! Yet, it wasn't.
7. IIED and Prima Facie Tort? Nope.
These are terrible, but I will make this simple- if you can't get defamation, you aren't coming close to IIED. And it's never prima facie tort. Might as well plead RICO.
8. Leave to Amend, finally argued, but done incorrectly.
I have to head back out, so I will say this- leave to amend was probably the best overall argument, but it wasn't really addressed until the reply brief. I would say that the argument mischaracterizes the record, but it at least makes a cognizable argument (FINALLY) that leave to amend might have been granted. Of course ... it doesn't actually invoke the APPELLATE COURT STANDARD for review. Because at this point, why would Lanasa do something correctly..... sigh
What's next?
Oral arguments have been requested. These are not granted automatically, but the 2d Cir. does grant them at a high rate. However, this is such a routine appeal (and poorly argued) I could imagine them not granting it.
An appeal in this procedural posture (order granting a motion to dismiss with prejudice for failure to state a claim) normally has a high likelihood of success, so you can't say that Lanasa is doomed. But these briefs and arguments are so bad that for Lanasa to win, at this point, would require the appellate panel to swoop in and save him from himself.
