Stuart Wright
Well-known member
I wait for Jadmperry to shed some light on the situation as it's whoosh over my head!
California Case Update
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Morgain
Well-known member
Which was a derivative of the old European code of duelling. Once we all carried knives, swords or swordsticks. It ensured good manners and culled the male stock.
Heartfelt sympathy. I am now fighting to save my son's career from a jobsworth bureaucrat who has misapplied the rules. There is so MUCH of this. Any kind of success makes you a target.
When I got the awful email the other night I just wanted to despair - years of university work and thousands of pounds to be trashed because of a software glitch on the other side that didn't process his work, and uncaring smallminded bullies to back it up. Made me want to "just give up" true despair because we have fought to get his university degree now for years against the odds. But "our masters" do not WANT us to be successful so we are pushed to turn and bite each other, rather than put them in their place.
You're right. It's run by highly intelligent individuals. Very efficiently.
But the bits that create justice ae only partial. Enough to reassure and soothe us.
The rest is the rich talking to the rich about the rich, and making sure the rest either do their jobs, or stay out of the way in slums.
It's a VERY efficient system.
But IB is not big enough to be backed by real wealth. Nor does XF threaten our masters. So they can be allowed to win.
It'll be a nice robin hood story to ... reassure and soothe.
Except I don't think it's ultimately lawyers. They are just (almost all) well paid liars and twisters. Lackeys and aaaa lickers to the rich.
It's the elite money that profits. Every time.
But the hope is that there are niches, crevices, nooks and crannies where if you're clever and wary you can live relatively safe and happy. Quite frequently, several times a yea, you need to fight off a "bandit" (corporation, utility service, bureaucrat, welfare agent) having a go. It's like having to go out and hunt down sharp toothed vermin. You can get bitten. It's tiring and dreary while it lasts but can be fun as you win. Would rather do creative things though.
I hate to say it, but that latest document is not good news for XenForo.
Whilst it may be a last ditch attempt by VBSI (and probably futile to try to have the whole case decided on it), it does raise serious issues if VBSI are found to be right on this occassion.
Even if a small section is found in VBSI's favor, it may end up pushing dates back even further whilst more discovery / responces etc are done.
The next updates and responces from the Judge are going to be very important.
Whilst it may be a last ditch attempt by VBSI (and probably futile to try to have the whole case decided on it), it does raise serious issues if VBSI are found to be right on this occassion.
Even if a small section is found in VBSI's favor, it may end up pushing dates back even further whilst more discovery / responces etc are done.
The next updates and responces from the Judge are going to be very important.
Onimua
Well-known member
While that may be the case, why did IB wait until the latest response from XF's lawyers asking for the whole thing to be thrown out to say something? It just looks like another way to delay things and as Jake pointed out there's some confusion as to whether or not their latest claim has solid ground.
Lucas
Well-known member
Yes, and it pisses me the **** off, they ****ed us, the customers. I would totally spit and probably throw a punch of two on those bunch of *******s called people at IB. And I'm sorry but if I see my company doing something like this to other people which I can relate to, I'm ****ing leaving, no doubt, even if I have to change my career.
Anthony Parsons
Well-known member
Actually, there is nothing in that single claim, being Mike hasn't sent required information as requested, that isn't currently applying to IB already, or they've done themselves.
The large document is just a copy of existing documents... Whilst it would be nice for XF to have this finalised in November, I honestly don't see either party getting out of January. Which would satisfy all customers.
Jake Bunce
Well-known member
The argument against Mike is based on the claim that the TAC was denied, which it wasn't. It's bogus. IB seems to be pleading ignorance of the case with this latest document.
jadmperry
Well-known member
I don't have a ton of time to write on this now....but there is a significant difference between an application to the clerk of the court for entry of default and the judge actually entering a default. Even if entered, it can be (and probably would be) set aside.
I hope to have some more time to explain the difference.
I hope to have some more time to explain the difference.
Jake Bunce
Well-known member
I think people would be more interested in the basis for IB requesting a default judgment:
http://xenforo.com/community/threads/california-case-update.10037/page-225#post-429807
XF says the TAC was granted. IB says it wasn't. Both are using the fate of the TAC in their respective arguments, one for dismissal and the other for default judgment. If you can give your professional opinion about the fate of the TAC and the automatic deadlines then that will pretty much answer all questions. Was the TAC granted or denied? Does IB need to submit a TAC or not?
From document 121, the TAC was granted in part, therefore IB needs to submit a TAC for the part that was granted. To date they have not submitted a TAC which means Mike did not miss any deadline which is the entire basis for requesting a default judgment. If the TAC was granted (which it was in part) then everything falls in favor of XF here.
ManagerJosh
Well-known member
I think it's just common sense that when something in part is partially denied and yet partially accepted, one goes forward and treats it, and proceeds entirely as accepted as outlined originally. Or common sense kicks in that when confused, ask the courts for clarification. 
Of course, the Plaintiff does lack a lot of common sense in many areas except in the department of throwing their weight around, harassment, and wasteful spending of money.
Of course, the Plaintiff does lack a lot of common sense in many areas except in the department of throwing their weight around, harassment, and wasteful spending of money.
jadmperry
Well-known member
I have to start with a disclaimer- my thoughts on the matter matter not a whit. The judge's view is what matters. That said, I will give my thoughts. I may provide some insight. However, at the end of the day, implicit is that whatever I think may or may not track with the judge's take on the issues.
First, some prefatory remarks. There seems to me to be two issues that are at the forefront- the issue of any action taken being likely to provide basis for a strong appeal by either party, and the court's ability/discretion in managing the case. The court has a strong basis for managing the cases before it. This is both under the Federal Rules of Civil Procedure (FRCP) and under the court's inherent power under the US Constitution. So, any delay tactics or failure to follow the court's orders will be within the court's sound discretion to deal with. At the same time, the litigants are supposed to be able to have their claims adjudicated by the court. I see the present motions as raising different, but perhaps tangentially related, issues. Did IB fail to prosecute this case? And did Mike fail to answer as required by the FRCP? My previous comment notwithstanding, I think these are actually different issues.
I think it makes sense to address IB's latest filing first. My gut instinct is that the judge would not grant a default in any event. Why? For two reasons. First, the motion does not meet the requirements of FRCP 55
b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk--on the plaintiff's request, with an affidavit showing the amount due--must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
USCS Fed Rules Civ Proc R 55
The affidavit does not show the amount due- so for technical reasons, the motion should fail.
But, let's go ahead and pretend that does not matter. The second reason is that the motion- even if granted, a default entered by the clerk is only the first step in getting a motion for entry of judgment by the court. That said, this case, from a CA district court, shows why this motion for default should be destined to fail:
"Though the Ninth Circuit has not addressed this issue, the logic of the ruling in Artis T. Ore, Inc. is in line with U.S. Supreme Court precedent. For example, an amended complaint which presents a "new or different cause of action . . . is the equivalent of a new suit." Seaboard A. L. Railway v. Renn, 241 U.S. 290, 293-94, 60 L. Ed. 1006, 36 S. Ct. 567 (1916). Furthermore, requiring a defendant to respond within 10 days of service of an amended complaint which contains new causes of action does not coincide with considerable importance the federal rules place on notice being provided to Defendant. See Percy v. San Francisco General Hospital, 841 F.2d 975, 980 (9th Cir. 1988). Thus, this Court finds it reasonable that Defendant regarded the SAC as alleging new causes of action without leave of court, which would not trigger the 10 day response time required by Rule 15.
However, this Court need not make a ruling on this issue as an entry of default judgment against Defendant is inappropriate here on other grounds. The section of the rule regarding default is dealt with in Rule 55(a), and the section of the rule regarding judgment is dealt with in Rule 55(b). These sections have separate headings and procedures that are distinct from one another. Thus, a plain reading of Rule 55 demonstrates that entry of default by the clerk is a prerequisite to an entry of default judgment. Here, Plaintiff failed to provide this Court with proof of an actual entry of default by the clerk nor does this Court's docket reflect that a default was entered against Defendant. Plaintiff states that he attempted to obtain an entry of default against Defendant via a letter dated January 31, 2004 addressed to the clerk of the court, however, at the hearing on March 11, Plaintiff stated that letter had been rejected by the clerk and returned to Plaintiff. Thus, Plaintiff failed to complete the first part of the two-part process, and a default has not been entered against Defendant. n5
FOOTNOTES
n5 According to this Court's docket, Defendant's motion to dismiss was filed February 4, 2004, nunc pro tunc to February 2, 2004.
Furthermore, even if a default was entered against Defendant, a default judgment is disfavored. "Whenever it is reasonably possible, cases should be decided upon their merits." See Patapoff v. Vollstedt's, Inc., 267 F.2d 863, 865 (9th Cir. 1959). As such, any doubts as to the propriety of a default are usually resolved against the party seeking a default judgment. Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985). "
Vongrabe v. Sprint PCS, 312 F. Supp. 2d 1313, 1318-1319 (S.D. Cal. 2004)
Second, such a motion could/would be set aside under FRCP 60(b).
So, bottom line, I don't see any way that IB's motion for default should be granted, legally or practically.
IB did not and has not so far countered Kier's and XF's motion for dismissal. If IB's lawyers are worth a damn, they probably will/should separately respond to that motion. However, my instinct is that they (IB and especially their lawyers- because they have no case on the evidence) have no real desire to actually go to trial. So, my gut is that this is just a delay tactic.
All of this leaves how the judge will view this. This is again just my gut- the judge will/should deny this motion based on FRCP 55 and the case I cited.
As to XF's motion to dismiss? IB has not answered that one. Will be interesting to see if they do.
I have just noticed a few very important issues in the filings that have not been as of yet discovered (or at least talked about publicly). My sense is that these issues will work against IB in the end. However, I won't comment publicly on them as doing so may work in IB's favor tactically. (Not that I think it matters much- you can pile a bunch of sugar and cream on top of a dung sandwich- in the end, it is still a pile of dung, and won't taste much better).
Walter
Well-known member
More of the same old story.
Reeve of Shinra
Well-known member
Stupid question -- but how can IB claim that Mike never responded to the SAC when he is being represented by the same council as Kier?
I believe some documents state that the council is specifically appearing on behalf on Kier, or other individuals as it relates to specifics of their involvement in the case but the latest motion to discuss lists Mike as a defendant.
I believe some documents state that the council is specifically appearing on behalf on Kier, or other individuals as it relates to specifics of their involvement in the case but the latest motion to discuss lists Mike as a defendant.
Reeve of Shinra
Well-known member
In regards to the latest document from IB's legal council stating that they served Mike and are requesting a default judgement -- Pamela also referenced that Mike was served in the latest motion to dismiss.
It has been almost a year since Plaintiff filed a SAC that named five new defendants, but Plaintiff has served only two of them (Michael Sullivan and the now-dismissed Ashley Busby).
It has been almost a year since Plaintiff filed a SAC that named five new defendants, but Plaintiff has served only two of them (Michael Sullivan and the now-dismissed Ashley Busby).
CivilWarTalk
Active member
Question, has Pamela ever listed Mike as her client in these documents? I remember seeing documents with her header listing Kier and Xenforo as clients, but I don't remember seeing her list Mike...
As of 10/1
ManagerJosh
Well-known member
AFAIK, Ashley, Mike and Kier has always been represented by Pamela.
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