Lex Loci Delicious!
That's right, I am going to tie some of the specific issues in the nuTSR case with a general overview of the appellate process.
Which means that today's topic is the appeal. "Appeal" come from the old Latin, which, roughly translated, means "Additional compensation for lawyers." In short, your attorney is appealing for more money to do the job s/he should have done initially.
Now, a skilled advocate will not say this in so many words. They will say that the judge got it wrong. That the jury got it wrong. THE WHOLE SYSTEM IS WRONG, AND THE GOLD FRINGE ON THE FLAG PROVES IT!!! Regardless, though, in for a penny, disregard the pound of sunk cost, because you need to appeal the decision that went against you.
A. Appeals in General.
So what is an appeal? In essence, you are asking another judge, or group of judges, to say that the initial decision against you was wrong. Appeals rarely work. Why is this?
1. Appeals are done on various standards, from "de novo" (this is, again, Latin, roughly translated to "the appellate court will pretend to review it with fresh eyes and then rule against you") all the way to "depart from the essential requirements of the law" (the appellate court will light all your briefs on fire, and if they magically re-constitute themselves into a Phoenix, will rule in your favor). But put another way, different issues allow the appellate court to put their thumbs on the scale. If you are appealing, you are always asking for the lowest standard (usually de novo), and if you are arguing against an appeal, you are arguing for some insanely high standard. This matters a huge amount- many of the higher standards mean that the appellate court won't reverse the judgment, even if they appellate court thinks that it is wrong.
2. Appeals have to raise specific and narrow issues. In other words, an appeal can't just be, "The judge was stupid and wrong." More importantly, to quote a certain case ... "We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be 'actually innocent.' I would have preferred to decide that question, particularly since, as the Court's discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." Herrera v. Collins, 506 U.S. 390 (1993) (Scalia, J. concurring). Harsh, brah!
Put another way, the job of the appellate court is not to consider new evidence, or to 're-do' the case. It's to look at discrete issues of legal error. In addition, those issues had to be "preserved" (raised, argued, etc.) in the original proceeding.
3. Most judges are not dumb, and they do not like to get overturned by those fancy-pants appellate judges. So they won't make stupid errors that will get them overturned. Instead, they will screw you (because, remember, the law exists to screw you and promote industry) by stating the law correctly, and then rule against you using reasons like "facts" that appellate courts are allergic to.
4. Your attorney already lost the first time around; what, you think your attorney suddenly got smarter, better, and more articulate?
So now that this has been covered, the question becomes- what is being appealed? You, the clearly and obviously wronged party, doubtlessly can think of at least one million things than the stupid judge and/or jury did wrong, up to and including the totally fraudulent final decision. However, appeals can only be taken over specific things, and "The trial court judge is a stupid meanie" is not an appellate issue. To put it simply- you may want justice, but the appellate court is looking for some type of screw up. You may want the appellate court to know that it was wrong for Comcast to include that provision in the contract to allow Comcast to take your first-born child if you complain about their internet download speeds on social media, but the appellate court will want to know things like- did your fool lawyer properly plead your claim against the proper corporate entity?
Next, there can be different kinds of appeal. There are appeals as of right, and discretionary appeals. Appeals as of right mean that you lose automatically, and discretionary appeals means that the appellate court will probably just ignore your appeal, and only pay attention if they really want to tell you that you lose. There are also these magical things called interlocutory appeals, which are brief pauses in the litigation so the appellate court can say, "Yes, the trial court is correctly screwing you. Now, go away." And, of course, what happens when you lose an appeal- well, you can try and appeal again, you'll have much worse chances, and it costs a lot more money. Remember, as always, the sun will rise, the sun will set, and your attorney will have lunch... and bill you for it.
Now, with that out of the way ... let's look at the nuTSR litigation!
B. How a case gets lost, LaNasa edition, and the issues on appeal.
I should start by saying that I am writing this prior to the initial brief being filed, and I will update in the comments below when I see it. The case is LaNasa et al. v. (Tenkar) et. al., No. 24-1325 (2d Cir 2024) was filed on May 13, 2024. This is an appeal of an action in the E.D.N.Y.
Wut? Brief translations- E.D.N.Y is a federal district court, for the Eastern District of New York. The "2d Cir." is the Second Circuit Court of Appeals, the federal appellate court that handles all appeals from district courts in Connecticut, New York, and Vermont. The original case was filed by Justin LaNasa against Tenkar (I am going to omit his actual name). LaNasa was alleging claims of defamation, intentional infliction of emotional distress ("IIED"), and prima facie tort ("PFT"). At a later point, LaNasa also attempted to allege those claims against Tenkar's Wife.
On April 17, 2024, the District Court dismissed LaNasa's claims with prejudice, and denied further leave to amend, ending the case. LaNasa then appealed the case to the 2d Cir. No briefs have been submitted yet, but LaNasa has submitted the issues to be raised on appeal, so we can briefly examine those in the context of what we now know about appeals.
Let's start with the basics! In terms of procedure, and standards, LaNasa is actually in a decent place. The District Court ended his case on a motion to dismiss, and denied leave to amend. As a general rule, review of the lower court's decisions on a motion to dismiss are under the de novo standard (the best one) and appellate courts usually don't like it when the lower court denies the opportunity to amend the complaint (this means that you can correct your errors).
But ... let's start with leave to amend. The problem with this is that (1) LaNasa was already on his second amended complaint, (2) the District Court instructed LaNasa on the deficiencies in the complaint, and they weren't corrected, and (3) LaNasa never requested leave to amend the complaint again. In addition, when given leave to amend previously, LaNasa both didn't correct deficiencies, and also exceeded the leave of the court in amendment. Not great, Bob!
Next, while the standard is great for LaNasa, the actual issues aren't. There are three claims, and two of them are ... not good. As a general rule, a defamation claim cannot support an IIED claim. So, as a matter of law, I don't think this is a good issue for appeal. And PFT? ITS NEVER PFT!!! Seriously, this is something that every first-year associate who happens upon it is told. Pleading PFT is almost always a way of saying that you're not serious. And, as the District Court pointed out, if emotional damages are all you can plead, you can't even make a PFT case (which you couldn't make anyway). So on two claims ... eh.
Now, a brief detour. There is also the issue of Tenkar's Wife. Put simply- LaNasa did not add her as a party correctly, and never served her. So the District Court was completely correct on that.
That leaves the defamation claim. So I happen to agree with the District Court on this one, but if there is an appealable issue, it's here. If well-argued, I can see the possibility of a reversal, given the lenient standards. But I wouldn't bet on it. Why? Because .... well-argued. The notice of the issue on appeal is raising all the issues, and most of them are really bad. And while it might be possible to convince an appellate court, maybe, that you could piece together a defamation claim under the pleading standards (Iqbal/Twombly) there are two issues- first, of course, that I don't think Tankar's attorney can, and that almost none of the allegations are defamatory. Second, it would be a pyrrhic victory. This is just a motion to dismiss. Even if LaNasa were to win, and I find it unlikely, it just means that LaNasa will lose later on, in front of the same judge, likely on summary judgment.
Anyway, those are the thoughts. Will update when any briefs have been filed. And feel free to comment about this case, appeals in general, or bananas.
That's right, I am going to tie some of the specific issues in the nuTSR case with a general overview of the appellate process.
Which means that today's topic is the appeal. "Appeal" come from the old Latin, which, roughly translated, means "Additional compensation for lawyers." In short, your attorney is appealing for more money to do the job s/he should have done initially.
Now, a skilled advocate will not say this in so many words. They will say that the judge got it wrong. That the jury got it wrong. THE WHOLE SYSTEM IS WRONG, AND THE GOLD FRINGE ON THE FLAG PROVES IT!!! Regardless, though, in for a penny, disregard the pound of sunk cost, because you need to appeal the decision that went against you.
A. Appeals in General.
So what is an appeal? In essence, you are asking another judge, or group of judges, to say that the initial decision against you was wrong. Appeals rarely work. Why is this?
1. Appeals are done on various standards, from "de novo" (this is, again, Latin, roughly translated to "the appellate court will pretend to review it with fresh eyes and then rule against you") all the way to "depart from the essential requirements of the law" (the appellate court will light all your briefs on fire, and if they magically re-constitute themselves into a Phoenix, will rule in your favor). But put another way, different issues allow the appellate court to put their thumbs on the scale. If you are appealing, you are always asking for the lowest standard (usually de novo), and if you are arguing against an appeal, you are arguing for some insanely high standard. This matters a huge amount- many of the higher standards mean that the appellate court won't reverse the judgment, even if they appellate court thinks that it is wrong.
2. Appeals have to raise specific and narrow issues. In other words, an appeal can't just be, "The judge was stupid and wrong." More importantly, to quote a certain case ... "We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be 'actually innocent.' I would have preferred to decide that question, particularly since, as the Court's discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." Herrera v. Collins, 506 U.S. 390 (1993) (Scalia, J. concurring). Harsh, brah!
Put another way, the job of the appellate court is not to consider new evidence, or to 're-do' the case. It's to look at discrete issues of legal error. In addition, those issues had to be "preserved" (raised, argued, etc.) in the original proceeding.
3. Most judges are not dumb, and they do not like to get overturned by those fancy-pants appellate judges. So they won't make stupid errors that will get them overturned. Instead, they will screw you (because, remember, the law exists to screw you and promote industry) by stating the law correctly, and then rule against you using reasons like "facts" that appellate courts are allergic to.
4. Your attorney already lost the first time around; what, you think your attorney suddenly got smarter, better, and more articulate?
So now that this has been covered, the question becomes- what is being appealed? You, the clearly and obviously wronged party, doubtlessly can think of at least one million things than the stupid judge and/or jury did wrong, up to and including the totally fraudulent final decision. However, appeals can only be taken over specific things, and "The trial court judge is a stupid meanie" is not an appellate issue. To put it simply- you may want justice, but the appellate court is looking for some type of screw up. You may want the appellate court to know that it was wrong for Comcast to include that provision in the contract to allow Comcast to take your first-born child if you complain about their internet download speeds on social media, but the appellate court will want to know things like- did your fool lawyer properly plead your claim against the proper corporate entity?
Next, there can be different kinds of appeal. There are appeals as of right, and discretionary appeals. Appeals as of right mean that you lose automatically, and discretionary appeals means that the appellate court will probably just ignore your appeal, and only pay attention if they really want to tell you that you lose. There are also these magical things called interlocutory appeals, which are brief pauses in the litigation so the appellate court can say, "Yes, the trial court is correctly screwing you. Now, go away." And, of course, what happens when you lose an appeal- well, you can try and appeal again, you'll have much worse chances, and it costs a lot more money. Remember, as always, the sun will rise, the sun will set, and your attorney will have lunch... and bill you for it.
Now, with that out of the way ... let's look at the nuTSR litigation!
B. How a case gets lost, LaNasa edition, and the issues on appeal.
I should start by saying that I am writing this prior to the initial brief being filed, and I will update in the comments below when I see it. The case is LaNasa et al. v. (Tenkar) et. al., No. 24-1325 (2d Cir 2024) was filed on May 13, 2024. This is an appeal of an action in the E.D.N.Y.
Wut? Brief translations- E.D.N.Y is a federal district court, for the Eastern District of New York. The "2d Cir." is the Second Circuit Court of Appeals, the federal appellate court that handles all appeals from district courts in Connecticut, New York, and Vermont. The original case was filed by Justin LaNasa against Tenkar (I am going to omit his actual name). LaNasa was alleging claims of defamation, intentional infliction of emotional distress ("IIED"), and prima facie tort ("PFT"). At a later point, LaNasa also attempted to allege those claims against Tenkar's Wife.
On April 17, 2024, the District Court dismissed LaNasa's claims with prejudice, and denied further leave to amend, ending the case. LaNasa then appealed the case to the 2d Cir. No briefs have been submitted yet, but LaNasa has submitted the issues to be raised on appeal, so we can briefly examine those in the context of what we now know about appeals.
Let's start with the basics! In terms of procedure, and standards, LaNasa is actually in a decent place. The District Court ended his case on a motion to dismiss, and denied leave to amend. As a general rule, review of the lower court's decisions on a motion to dismiss are under the de novo standard (the best one) and appellate courts usually don't like it when the lower court denies the opportunity to amend the complaint (this means that you can correct your errors).
But ... let's start with leave to amend. The problem with this is that (1) LaNasa was already on his second amended complaint, (2) the District Court instructed LaNasa on the deficiencies in the complaint, and they weren't corrected, and (3) LaNasa never requested leave to amend the complaint again. In addition, when given leave to amend previously, LaNasa both didn't correct deficiencies, and also exceeded the leave of the court in amendment. Not great, Bob!
Next, while the standard is great for LaNasa, the actual issues aren't. There are three claims, and two of them are ... not good. As a general rule, a defamation claim cannot support an IIED claim. So, as a matter of law, I don't think this is a good issue for appeal. And PFT? ITS NEVER PFT!!! Seriously, this is something that every first-year associate who happens upon it is told. Pleading PFT is almost always a way of saying that you're not serious. And, as the District Court pointed out, if emotional damages are all you can plead, you can't even make a PFT case (which you couldn't make anyway). So on two claims ... eh.
Now, a brief detour. There is also the issue of Tenkar's Wife. Put simply- LaNasa did not add her as a party correctly, and never served her. So the District Court was completely correct on that.
That leaves the defamation claim. So I happen to agree with the District Court on this one, but if there is an appealable issue, it's here. If well-argued, I can see the possibility of a reversal, given the lenient standards. But I wouldn't bet on it. Why? Because .... well-argued. The notice of the issue on appeal is raising all the issues, and most of them are really bad. And while it might be possible to convince an appellate court, maybe, that you could piece together a defamation claim under the pleading standards (Iqbal/Twombly) there are two issues- first, of course, that I don't think Tankar's attorney can, and that almost none of the allegations are defamatory. Second, it would be a pyrrhic victory. This is just a motion to dismiss. Even if LaNasa were to win, and I find it unlikely, it just means that LaNasa will lose later on, in front of the same judge, likely on summary judgment.
Anyway, those are the thoughts. Will update when any briefs have been filed. And feel free to comment about this case, appeals in general, or bananas.
