Steinbuch v. Hachette Book Group

Filing 36

BRIEF IN OPPOSITION filed by Hachette Book Group re 31 Motion to Amend/Correct (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Stone, Clayborne)

Exhibit 9

1

1 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROBERT STEINBUCH,
.

Docket No.

CA-05-970

(PLF)

3 Plaintiff, 4 v. 5 JESSICA CUTLER, 6 Defendant. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court Reporter: For the Defendant: Davis, Wright, Tremaine, LLP By: James Rosenfeld, Esquire Amber L. Husbands, Esquire Laura R. Handman, Esquire 1919 Pennsylvania Avenue, Northwest Washington, D.C. 20006 202.973.4200 Law Offices of Charles R. Both By: Charles R. Both, Esquire 1666 Connecticut Avenue, Northwest Washington, D.C. 20009 202.833.9060 Linda L. Russo, RPR Official Court Reporter Room 6403, U.S. Courthouse Washington, D.C. 20001 202.354.3244 APPEARANCES: For the Plaintiff; Jonathan S. Rosen, Esquire 1645 Lamington Road Bedminster, New Jersey 07921 908 759 1116
. . . .

.

Washington, D.C. May 16, 2007 3:00 p.m.

TRANSCRIPT OF MOTIONS HEARING BEFORE THE HONORABLE PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE

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I corrected the mistake in the most reasonable and expeditious fashion that I thought appropriate given the pending motion to dismiss, even though there was a long period
And I want to state for the

of time in between the decision.

record that the mistake was my mistake as an attorney reviewing the complaint, Thank you. THE COURT: Okay.
Why don't we take a 15 minute

and not a change in legal strategy whatsoever.

and I'll see whether or not I can give you a ruling this

afternoon. (Recess taken) THE COURT: I think both sides asked for an oral and sometimes when I have an oral because sometimes when I

argument on this motion,

argument it actually saves me time,

have an oral argument it's possible to rule orally after considering the briefs, which I read before today, relevant case law, which I read before today, and the

and having the

arguments of the lawyers, which is always very helpful. The down side to an oral opinion is it's not as organized and lucid as a written opinion, but it's and it takes less time.

still an opinion,

So what I'm about to say will be my opinion on the The docket will simply have an order stating for the If anybody wants to appeal,

reasons stated in open court.

assuming this is an appealable order, you can get the

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transcript from Ms. Russo. This matter, as we all know, is here on the motion of

the defendant, Ana Marie Cox, entirety against her, defendant. response,

to dismiss the complaint in its

so that we would be back with a single and the plaintiff's

And I have her motion,

and Ms.

Cox's reply.

As we all know from the record in this case, and as Mr. Rosenfeld usefully summarized it the beginning of his argument, the relevant facts, and this is set forth in my

earlier opinion which is found in the transcript of the motions hearing on April 5, 5th, 2004, 2006. The relevant events began on May 2004, which is the period of

and ended on May 18,

time when Jessica Cutler published this stuff on her blog. It was on May 17th or 18th, 2004, that Ms. Cox

excerpted material from Ms. Cutler's blog and the postings from Ms. Cutler and put it out on her Washingtonienne, is. I guess it

The lawsuit originally was filed naming only Ms. Cutler as and the only defendant, 2005. namely and that complaint was

the defendant,

filed on May 16,

The issue on the earlier motion to dismiss, that of Ms. Cutler, revolved around a number of issues

including whether or not the plaintiff had adequately stated claims under either a claim of intentional or reckless infliction of emotional distress, and/or invasion of privacy.
--

And in the course of my oral opinion

I guess it

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was intentional infliction of emotional distress. course of my oral opinion on April 5th, the elements of those claims, 2006,

In the

I went through

including the fact that the

invasion of privacy is four separate torts under the restatement as adopted in the District of Columbia, and my

conclusion that the plaintiff had adequately set out one and possibly two of those claims and had set out, present purposes, at least for

a claim of intentional infliction of Whether or not they will be able to prove

emotional distress.

that is another question. Having decided the claims were adequately set out, then had to determine what the appropriate statute of limitations was, and did that beginning on page 56 of that transcript. I

And I concluded that the statute of limitations
intentional infliction of emotional false light, was a one year

under each of those claims,

distress and invasion of privacy, statute of limitations.

I rejected the argument that the

plaintiff made that it was a three year statute of limitations, and found it inappropriate to rely on a case from the district of Maryland, Smith versus Esquire, in light of the fact that

two of my colleagues,

I think two of my colleagues at least, Judge Supp 7, Supp

had concluded it was a one year statute of limitations. Harris in Doe versus Southeastern University, at 732 F.

and Judge Kessler in Grunseth versus Marriott Corp, 1069, and they had some discussion of earlier cases,

872 F. Thomas

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versus New World Communications,

681 F.

Supp 55,

and Dooley

versus United Technologies Company. And I discussed those cases and concluded it's a one year statute of limitations. on May 16, 2005, And since the lawsuit was filed

that decision means that the claims may go 2004, and not all the way back to May 5th,

back only to May 16, 2004. Cutler,

If it was a one year statute of limitations for Ms. then on my reading of it, it was also a one year unless there's some way

statute of limitations for Ms. Cox,

around that one year statute of limitations, which I'll get to in a minute. Mr. Steinbuch through Mr. Rosen moved for leave to 2006, which is more than two years after the

amend on July 9,

events in question, limitations had run,

and more than one year after the statute of if I'm right that it's only a one year And, therefore, Mr. Steinbuch is out

statute of limitations. of luck,

unless this amendment relates back to the claims

against Ms. Cutler. Mr. Rosen makes a number of arguments. First he

argues that all he was doing really was adding a defendant, that all the claims against Ms. Cox were already set forth in the complaint, the original complaint, that he was fixing a but on

mistake of not having included it in the caption,

questioning he acknowledged that there was more than just the caption. The listing of the parties did not list her as a

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party, Cox.

in discussing venue and jurisdiction it did not list Ms.

He goes on to argue that she nevertheless had full notice back in May of 2005 when Ms. Cutler was sued, that

that's clear from her statements on her own site and in other context. Mr.
And that any mistake that was made was one by

Rosen, not by his client,

in not naming her in the caption He says the complaint that

and otherwise seeking relief from her. was virtually identical,

the old one and the amended one,

there is no prejudice to her, have been sued, and so forth,

she was well aware that she might and that his client should not be

prejudiced for his mistake,

and because in general lawsuits
And in general that's true.

should be decided on the merits.

But the question is whether or not he has a right to add Ms. Cox more than two years after the events in question when the statute of limitations is one year. I expressed

doubts when I granted his motion to amend back on October 30, 2006, and those doubts are set forth in that opinion. But I

because of the liberal amendment philosophy behind Rule 15, permitted it, dismiss. This is a footnote before I move on to 15(c). The

but obviously that did not preclude a motion to

other thing that Mr. Rosen said was that it would have been futile to seek to amend before I ruled on Ms. Cutler's motion to dismiss for a variety of reasons, including presumably that

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I might have thrown the whole case out.

I might have said and then we

there's a three year statute of limitations, wouldn't be here today.

And that he learned some things during

the course of that briefing,

and that the oral argument that

made him decide it was a mistake not to have included her originally. The futility argument is not to me persuasive. of all, First

while futility is a concept that is discussed in some

of the cases and maybe even in the rule itself with respect to amendments, there's nothing futile about moving to amend a It

complaint while a motion to dismiss is being briefed. happens all the time. courthouse. And, It happens all the time in this one of the arguments that is

in fact,

sometimes made is,

I've spent all this time and effort briefing

a motion to dismiss and now the other side wants to move the goal post, so it's not fair. But it's not futile to move to and it's done frequently and

amend in the course of briefing,

sometimes for good and sufficient reasons. Back to Rule 15(c). Rule 15(c) says that, "An

amendment of a pleading relates back to the date of the original pleading when," and then the relevant part is 15(c) (3), when "the amendment changes the party or the naming of the party against whom a claim is asserted" grows out of the same occurrence, transaction, so long as it et cetera, and

within the period provided by Rule 4(m),

120 days,

"for service

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of the summons and complaint, amendment (A)

the party to be brought in by

has received such notice of the institution of

the action that the party will not be prejudiced in maintaining a defense on the merits, that, party, and (B) knew or should have known

but for a mistake concerning the identity of the proper the action would have been brought against the party." In this case it's clear that Ms. Cox had notice, but

that's not to say that she would not have been prejudiced in maintaining a defense, and indeed the more time that elapses,

the more prejudiced she would be. If one moves early in the time frame, there's less prejudice. one could argue

The fact that your name is in a In fact,

complaint doesn't mean that you expect to be sued.

the fact that your name is in a complaint and you're not sued suggests that you're probably not going to be sued. While

because of all of the discovery disputes in this case, which Judge Facciola has been happily dealing with, perspective I think, not from his, discovery. happily from my

there hasn't been any one could see somebody

But in the normal course,

thinking that he or she is a mere witness going through depositions, defendant. third party discovery, That would be prejudice. and then being named a Thinking that you are not

going to be named as time goes on, passage of time.

there is prejudice from mere

I'll say more about the prejudice thing maybe in a

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minute or two,

but the key language is knew or should have

known that but for a mistake concerning the identity of the

proper party,

the action would have been brought.

So it's not

just any mistake by the language of the rule. any error. It's a mistake about identity. As I suggested earlier, and Federal Practice,

It's not just

and I'm looking at Moore's and it's

it's a certain kind of mistake,

a mistake in the identity of a party. says Moore,

The classic example,

is when a plaintiff misnames or misidentifies, but

correctly serves a party. In this case the defendant is already before the Court. For example, a court may find the type of mistake that

justifies relation back when the proper corporate name is not easily attainable, and the name used is close enough to the

correct corporate name for the newly named defendant to know that it was being sued. But in contrast, when the amendment the Court should not or in

changes the person or entity sued,

consider it a misnomer because the amendment substitutes, this case would add, a new party rather than correct the

identification of an existing party.

A conscious choice to sue

one party rather than another does not constitute mistake in identity.
And even when there's a mistake in identity,

says

Moore,

a plaintiff must allege a reason for the mistake in

order to substitute one legal entity for the other legal entity

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when the plaintiff knew the existence of the second legal entity at the time the original complaint was filed. I think

the cases cited there are still corporate cases, not individual cases, but that theme, what's the reason for the mistake when

you knew that the other person existed. If the plaintiff, Moore's again, actually knew the defendant's identity, if the plaintiff

relation back would be

improper because there would be no mistake. I don't know whether either of you cited this case. I can't remember, but I looked at it this morning and it struck me as I was listening to the arguments that it's quite relevant. It's a Supreme Court decision, mc, 529 U.s. 460. called Nelson versus

Adams U.S.A.

And in footnote number one,

that's actually a discussion, 15,

there are other aspects of Rule Justice Ginsburg says, "Even

but in footnote number one,

when an amendment relates back to the original date of pleading under Rule 15(c) due process, the relation back cannot, consistently with

deny a party all opportunity to be heard in We also note in this regard that

response to the amendment.

the instant case does not fall under Rule 15(c) (3) which deals with amendments that change the party or the name of the party against whom claims are asserted. That subsection," she says,

"applies only in cases involving a mistake concerning the identity of the proper party. mistake. Respondent Adams made no such

It knew of Nelson's role and existence,

and until it

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moved to amend its pleading, ' 1 against O.C.P. That's this case,

chose to assert its claim only

it seems to me,

and that's what

Justice Ginsburg was talking about. Now, the other authority, if one needs any, are the 107 F.3d

cases of the D.C. Circuit, 913.

Rendall-Speranza v. Nassim, I think. Yes.

Judge Douglas Ginsburg,

He talks first

about the prejudice question and says,

a potential defendant

who has not been named in a lawsuit by the time the statute of limitations has run, is entitled to repose unless it is or

should be apparent to that person that he is the beneficiary of a mere slip of the pen, as it were. So he's really talking Under

about prejudice and the mistake language. Rendall-Speranza approach, however,

one would not be sure that

he could rely upon the repose promised by the statute of limitations until all litigation was over. adopt so expansive an interpretation. He then talks about the Advisory Committee notes that states that Rule 15(c) a misnamed defendant, was intended to deal with the problem of that it was intended to be a means for like the Nothing in that the We are reluctant to

correcting the mistakes in suing the wrong party,

wrong governmental agency or the wrong corporation. the rule or the notes indicates, says Judge Ginsburg,

provision applies to a plaintiff who was fully aware of the potential defendant's identity, but not of its responsibility

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for the harm alleged.

An error of judgment about whether an

employer is liable for the act of an employee is not a mistake sufficient. There is Judge Kearse's opinion in the Second Circuit in Cornwell versus Robinson, 23 F.3d, 694, to the same effect.

There's my own opinion in Stith versus Chadbourne and Parke, LLP, 160 F.Supp 2d, page 1, although it's not discussed at

great length.

There is Judge Robertson's opinion in Sparshott Supp 2d, page 1. He quotes,

versus Feld Entertainment at 89 F. I guess he's quoting, `mistake' he says,

"In this circuit the word

is narrowly interpreted to preclude relation back of

amendments where a plaintiff was fully aware of the defendant's identity during the limitations period," and then he quotes Rendall-Speranza, like nothing in the rule was intended to

apply to a plaintiff who was fully aware of the defendant's identity but not of its responsibility for the harm alleged. And Judge Facciola's opinion in Gipson versus Wells Fargo Corporation. So for all of those reasons, defendant's right, that the claims, it seems to me that the

all of the claims, against

Ms. Cox and the First Amendment complaint are time barred because there is no relation back. Having said that, I don't think I have to get into

the Section 230 question again and decide whether or not anything Judge Kozinski says changes anything I said in

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Blumenthal versus Drudge,

or whether I care.

But I do.

He is

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a friend of mine and I do care,

and he's very smart.

And the other question is whether or not. there are

any factual wrinkles here that one would have to consider in looking at the Section 230 question. dismiss,
And on a motion to

I can't do that and shouldn't do that.

But I don't

think I have to deal with the Communications Decency Act question because it seems to me that the statute of limitations question and the question under Rule 15(c) is, is as clear as it

and nothing that I read in the papers or heard today has

persuaded me otherwise. So for these reasons,
I'm going to grant defendant

Ana Marie Ccx's motion to dismiss,

and she will no longer be a

defendant in this case. Is there anything I missed or that I need to say to complete the record? MR. ROSENFELD: THE COURT: what happens next, Mr. No, Your Honor.
And we will wait and see

So that's it.

Rosen, with you and Ms. Cutler's lawyer

and your clients and Judge Facciola, but I still hope that some day we will get through the discovery and that maybe it's, don't know if it's ever a case that could be settled, but I don't know where it's going to wind up at the end of a very long road. But I'll leave it to Judge Facciola to sort it out Thank you. I

until I need to see you all again.

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(Proceedings concluded.)

CERTIFICATE I, LINDA L. RUSSO, Official Court Reporter, certify

that the foregoing pages are a correct transcript from the record of proceedings in the above-entitled matter.

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Linda L. Russo, RPR Virginia CCR No: 0313102

Linda L. Russo, RPR Official Court Reporter