0001 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF OREGON 3 TANYA ANDERSEN, ) ) Case No. CV-07-934-BR 4 Plaintiff, ) ) 5 v. ) February 13, 2008 ) 6 ATLANTIC RECORDING CORPORATION, ) ET AL., ) 7 ) Defendants. ) 8 __________________________________) Portland, Oregon 9 TRANSCRIPT OF PROCEEDINGS 10 (Oral Argument) 11 12 BEFORE THE HONORABLE ANNA J. BROWN, DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 COURT REPORTER: AMANDA M. LeGORE, RDR, CRR, FCRR U.S. COURTHOUSE 23 1000 S.W. Third Avenue, Suite 301 Portland, OR 97204 24 (503) 326-8184 25 0002 1 APPEARANCES: 2 FOR THE PLAINTIFF: LORY LYBECK BENJAMIN JUSTUS 3 Lybeck Murphy, LLP 7525 SE 24th Street, Suite 500 4 Mercer Island, WA 98040 (206)230-4255 5 6 FOR DEFENDANT ATLANTIC 7 RECORDING, PRIORITY RECORDS, CAPITOL RECORDS, 8 UMG RECORDINGS, BMG MUSIC, SETTLEMENT SUPPORT 9 CENTER: RICHARD GABRIEL Holme, Roberts & Owen, LLP 10 1700 Lincoln Street, Suite 4100 Denver, CO 80203 11 (303)866-0331 12 WILLIAM PATTON 13 KEN DAVIS, II Lane Powell, P.C. 14 601 S.W. Second Avenue, Ste. 2100 Portland, OR 97204-3158 15 (503)778-2121 16 17 FOR DEFENDANT SAFENET: THOMAS MULLANEY The Law Offices of Thomas Mullaney 18 708 3rd Avenue, Suite 2500 New York, NY 10017 19 (212)223-0800 20 WILLIAM PATTON 21 Lane, Powell, P.C. 601 S.W. Second Avenue, Ste. 2100 22 Portland, OR 97204-3158 (503)778-2121 23 24 25 0003 1 (Wednesday, February 13, 2008; 9:30 a.m.) 2 3 P R O C E E D I N G S 4 5 THE COURT: Good morning, everyone. Please be seated. 6 MR. LYBECK: Good morning, your Honor. 7 THE COURT: So we are here for oral argument on the 8 defendants' Motions to Dismiss the plaintiff's complaint in 9 Andersen versus Atlantic Recording, and other recording 10 companies, and others, which is Civil No. 07-934. 11 Would you all state your appearances for the record, 12 please. First for the plaintiff. 13 MR. LYBECK: Good morning, your Honor. I'm Lory 14 Lybeck, appearing for Tanya Andersen, and in her individual 15 capacity and as putative class representative. 16 With me is Ben Justus, my associate. 17 Also seated behind is Ms. Andersen. 18 THE COURT: All right. Good morning. 19 MR. GABRIEL: Good morning, your Honor. My name is 20 Richard Gabriel with the law firm of Holme, Roberts & Owen. 21 And I'm here on behalf of defendants Atlantic Recording 22 Corporation, Priority Records, Capitol Records, UMG Recordings, 23 BMG Music, the Recording Industry Association of America, and 24 Settlement Support Center, LLC. 25 With me at counsel table are my co-counsel, Mr. Bill 0004 1 Patton and Mr. Ken Davis, of the Lane Powell firm. 2 And behind me is our representative of our client. 3 This is Mr. Matt Oppenheim. 4 MR. OPPENHEIM: Good morning, your Honor. 5 THE COURT: Good morning. 6 Sir? 7 MR. MULLANEY: Good morning, your Honor. I'm Thomas 8 M. Mullaney for Safenet, formerly known as MediaSentry. And 9 Lane Powell is also our local counsel in the matter. 10 THE COURT: All right. Welcome. 11 If the flurry of my e-mail messages to you yesterday 12 caused you distress, I apologize. 13 They were a stream of consciousness questions that 14 continue to come to mind. The more I pore over this record, 15 the more questions I have. I've answered some of them since I 16 sent them, in my own mind. 17 And I thought for your benefit I would outline for you 18 what I think analytically is an approach that ultimately I may 19 find -- an approach I may use to get us past this particular 20 stage. 21 I think, after you've had an opportunity to add 22 anything to the record or to try to redirect my thinking, 23 nonetheless there is going to be most probably leave for 24 plaintiff to replead claims that I find presently are of 25 concern. And I'm wanting to organize all of our efforts in a 0005 1 way that going forward, I'm respectful of all of the resources 2 you've already invested in what, in civil procedure terms, has 3 to be a very unique set of circumstances. 4 My goal is that we not have another round of Rule 12 5 motions, but that after an amended complaint, another amended 6 complaint is filed. Which I'm thinking is going to be the 7 likely course here. That we meet, after defendants' answer, to 8 determine an efficient course for the discovery that's 9 necessary to present a more complete record on which I can make 10 dispositive rulings, to the extent I can make dispositive 11 rulings. 12 Mr. Lybeck, I don't intend to address any class action 13 or Rule 23 issues until -- or I should, I suppose, say unless 14 and until I'm at a place where I'm certain I've got claims that 15 are workable, and that I know where we're going with that. 16 So today's purpose -- for today's purposes, I want to 17 focus on the Rule 12(b)(6) motions as they relate to 18 Ms. Andersen's claims for relief, as pleaded, and not go beyond 19 what I know is your ultimate intention. 20 We have to do this in a staged way, I think, in order 21 to make sense of what I've got -- 22 MR. LYBECK: I understand that, your Honor. 23 THE COURT: So let me just give you some overarching 24 impressions that I invite you to address, to the extent you 25 think I'm on a -- an erroneous course. 0006 1 Let me start, first, with this whole issue concerning 2 claim splitting, compulsory counterclaims, the existence of 3 what I'm going to call Andersen 1, or the first case, and this 4 case, and what it might mean relative to Ms. Andersen's ability 5 to bring in this action claims she originally brought as 6 counterclaims or claims she could have brought as counterclaims 7 in the first action. 8 The first action was pending at the time Ms. Andersen 9 filed this action. 10 In her complaint in this action, she alleged the first 11 action was pending. That she had claims asserted there as 12 counterclaims which were of the same and different -- that 13 overlapped, let's just say, for our discussion. 14 And that she was seeking an order of the court in that 15 case for leave to dismiss those claims voluntarily, to bring 16 them in this action. And absent leave to do so, she would seek 17 to consolidate those actions. She actually alleges that in her 18 complaint. 19 The first action was dismissed by Ms. Andersen 20 voluntarily and without prejudice. Moreover, with affirmative 21 leave of court to do so. Assuming explicitly that she would be 22 bringing those claims and others in the current action. The 23 Court's approval of that, the fact that Ms. Andersen proceeded 24 for a while simultaneously in two actions on the same claims, 25 and the analysis by Judge Ashmanskas -- and then Judge Redden 0007 1 in adopting his findings and recommendations -- that judicial 2 economy weighed in favor of having those matters all heard in 3 the context of a new case because the first case was headed for 4 dismissal by the plaintiffs who brought it, are all important 5 background facts. 6 Fundamentally, I'm of the view that the dismissal of 7 the first action without prejudice renders moot for Rule 8 12(b)(6) purposes any issues concerning claims splitting or the 9 failure to raise compulsory counterclaims. 10 Had the first action been dismissed on the merits or 11 in some manner with prejudice, such that one could conclude 12 there had been an adjudication on the merits, the analysis 13 would be different. But I don't think we get anywhere spending 14 our time, today, concerned with those procedural steps. 15 So my initial impression is that to the extent the 16 Rule 12(b)(6) motions are based on a contention that 17 Ms. Andersen is barred from bringing in this action claims she 18 asserted or could have asserted in the first action, that 19 ground is without merit; because the first action was dismissed 20 voluntarily, without prejudice and with explicit approval of 21 the court for the purpose of bringing the action here in the 22 exercise of the district judge's discretion in the management 23 of what was evidently already a complicated and becoming a more 24 complicated case. So that's my first observation. 25 That doesn't resolve, however, issues, concerning the 0008 1 potential running of statute of limitations with respect to 2 claims first asserted in this case, Andersen 2. Claims that 3 were not asserted in Andersen 1. 4 I sent you an e-mail about Oregon Savings Statute, ORS 5 12.220, and I sent it before I reread it. I was relying on my 6 memory. 7 But now I'm reminded, having reread it last night, 8 that ORS 12.220, the saving statute, which permits the refiling 9 within one year of a claim dismissed involuntarily and not on 10 the merits, wouldn't apply here. I think. I don't think 11 there's any statutory savings clause issue that merits our time 12 today. 13 The question then, with respect to statute of 14 limitations arguments, breaks down, depending upon what claim 15 for relief specifically the defendants are pointing at. We 16 know -- I think all of the statute of limitations arguments are 17 directed to Oregon common law claims, as to which Oregon's 18 substantive law applies. 19 The question of relation back, which Ms. Andersen 20 clearly wants to rely upon, is a principle I think that derives 21 from Rule 15 and the Federal Rules of Civil Procedure, and not 22 Oregon substantive laws. Especially since the Oregon 23 substantive Rule 12.220 doesn't apply. 24 So the question, for statute of limitations purposes, 25 at a high theoretical level, is whether if there are claims 0009 1 asserted for the first time in Claim 2 -- and I think maybe the 2 libel and slander claim is one of those, which was filed more 3 than -- in that case -- one year after conduct that is said to 4 be libelous or slanderous, would in any way the claim relate 5 back to the timely filing of other claims earlier? 6 That's something on which I invite a little bit of 7 argument, just about the theoretical approach here. Because I 8 think the defendants are correct in looking at cases that 9 examine Rule 15, and noting that relation back, as best I can 10 see in the case law, always relates back to the case and not 11 across cases. 12 Now, I'm mindful that there was a time when both cases 13 were pending at the same time, and that although the plaintiff 14 did not make a formal motion to consolidate, the court's 15 action -- Judge Ashmanskas and Judge Redden, in deciding to 16 permit Ms. Andersen to close one door and proceed through 17 another, I'm trying to analyze whether there was some kind of 18 de facto imprimatur of a consolidation that would permit, in 19 these unusual circumstances, relation back. 20 And then we have a more fundamental problem, and that 21 is trying to determine from this complaint what the actual act, 22 for time limitation purposes, is to which the plaintiff points 23 on the claims for which this is going to be an issue and as to 24 which defendant or defendants does plaintiff contend these acts 25 give rise to liability. 0010 1 If you're talking about conduct that is libel and 2 slander, typically the pleading rules in this setting would 3 require an explicit allegation that says on or about a 4 particular date, the defendant published the following 5 statement in this manner, so that it's clear there was 6 publication. 7 That statement was false because. It is libel 8 because. It is slander per se because it impugns the 9 plaintiff's -- it accuses the plaintiff of being a criminal. 10 It does this, or that, or the other thing. 11 None of that is explicitly set out. So I'm -- I'm 12 thinking with respect, for example, to the libel and slander 13 claim, we need the plaintiff to articulate in a pleading, that 14 amended complaint, a separately stated claim for relief that 15 lays out what it is -- what act is the triggering libelous act. 16 When did it happen? If it happened more than a year before the 17 filing of Andersen 2, are there facts that permit it to go 18 forward anyway? So that we have the issues teed up in a more 19 direct way. 20 And is the act that is said to be the libelous and 21 slanderous act slander per se? Or, if not, where -- where is 22 the special damage alleged? Because that's part of the claim 23 for relief under Oregon law. And as to which defendant is the 24 libel and slander claim intended to go forward? 25 So let me -- while I'm thinking about that, 0011 1 Mr. Lybeck, say I appreciate what you were trying to do in this 2 complaint and the first amended complaint, with respect to all 3 of the things you're trying to address, but I think you need to 4 do it again. So that Rule 8, which requires a 5 plain-and-concise statement of a claim, separately stated, is 6 satisfied. 7 When we're talking about common law claims, here 8 Ms. Andersen is invoking presumably Oregon common law. 9 MR. LYBECK: She is. 10 THE COURT: And so as to each claim there needs to be 11 alleged enough facts so that I can tell that the elements are 12 there. 13 With respect to the libel and slander claim, then, 14 what I'm inclined to do, as you're probably already getting the 15 impression, is to grant the motion for failure to state a claim 16 with leave to replead, consistent with my directions as I'm 17 describing them; laying out what is the libelous and slanderous 18 statement? When was it made or republished, in the case of 19 libel? Who -- who's liable for it and why? Is your civil 20 conspiracy claim, at the end of the case, intended to be a hook 21 for liability for tortious acts by one or more defendants? Or 22 is there some other basis where some of the defendants are 23 supposed to be liable? 24 All of this needs to be structured in a more precise 25 way, if we're going to be able to go forward efficiently. 0012 1 Discovery is going to be tailored, and we're going to 2 finally get to some decisions on the merits of a lot of these 3 things you've been dancing around for a while. 4 MR. LYBECK: We welcome that opportunity, your Honor. 5 THE COURT: So I'm concerned, then, for statute of 6 limitation purposes, that one can't get to a dispositive ruling 7 until I know what the operative facts are, what is the 8 statement, when was it made, and then we know if we have a 9 statute of limitations issue and the question about Rule 15 can 10 be litigated. 11 With respect to the privilege issues -- or the 12 immunity issues -- the so-called Noerr-Pennington or civil 13 litigation issues -- those are so fact-dependent. This amended 14 complaint isn't a vehicle by which I can make a legal decision. 15 Let me back up for a minute to note the standard that 16 I have to apply on a Rule 12(b)(6) against an amended 17 complaint. 18 One has to assume as true all of the non-sham 19 allegations of the pleading. One has to view them in the light 20 most favorable to the pleader. And one can't take into account 21 facts that are not alleged in the complaint in evaluating 22 whether it states a claim. 23 You all have achieved a level of sophistication 24 about -- what's this program called? KaZaA? KaZaA? 25 MR. GABRIEL: KaZaA, your Honor. 0013 1 THE COURT: K A Z A A. About file sharing, 2 downloading, peer-to-peer systems, Internet providers, their 3 addresses, how that goes. You've all assumed a level of 4 factual familiarity that isn't necessarily evident from the 5 amended complaint. 6 I've read a lot of these decisions you've cited. I 7 appreciate there are judges who have described what that judge 8 has understood to be the state of technology, in terms of how 9 one gets downloaded the kind of music as to which the defendant 10 record companies were asserting copyright interest. 11 But somehow this record needs to be developed, so that 12 the Court -- either as a matter of agreed fact by the parties 13 relative to how the technology works, or a judicially noticed 14 fact, or some other vehicle -- can have a context in which to 15 evaluate the claims. 16 So I'm required not to apply the old Conley versus 17 Gibson beyond doubt standard. But the Supreme Court reminded 18 us in Twombly, last fall, that I'm -- I'm to look to what it is 19 that's being alleged. 20 But, remember, I can't go beyond the complaint. And 21 you've all made a whole lot of arguments, the defendants have, 22 that require reliance on matters I can't just assume. And 23 that's why I'm saying I think the most effective route from 24 this courtroom is a clear order to the plaintiffs that directs 25 a repleading that allows both sides to frame some dispositive 0014 1 challenges on a meaningful discovery course, where your efforts 2 are targeted to direct certain things. 3 So with respect to these immunity issues, I mean I 4 understand the idea that one cannot be sued for the privileged 5 act of filing a lawsuit or for making pre-litigation 6 statements, so long as they are not so-called sham statements 7 or sham efforts. I mean, it's the federal equivalent, as I 8 understand it, of our common law tort of wrongful use of civil 9 proceedings. One has to have some basis in fact or law to do 10 what one's doing. And one can't manipulate the system for an 11 improper purpose or where there isn't probable cause or a 12 well-grounded belief that that which one is doing is 13 legitimate. 14 All of that is fact-intensive, and it has to do with 15 facts outside of the amended complaint, in part. Because, you 16 know, if one reads the plaintiff's complaint and takes in this 17 long preamble of all of these combined acts of concerted 18 conduct, as alleged, it's very difficult to say a privilege 19 applies as a matter of law. That ruling would be sent back 20 faster than anything else that's happened here. 21 We need this cleaned up. I need to know what conduct 22 the defendant contends is privileged as a matter of fact, and 23 how it separates from the conduct that the plaintiff says is 24 not justified by any measure and in fact was intentional. 25 Intentionally abusive, and all of that. 0015 1 So I don't think I can grant any relief in a motion to 2 dismiss on these immunities or privileges grounds because 3 they're fact-intensive affirmative defenses that depend upon 4 exactly what the plaintiff is asserting, which in turn is hard 5 to tell from this amended complaint. 6 Now, those are my overarching concerns. Let me talk 7 to you about each of the claims for relief and the questions I 8 have, and then give you a chance to react. 9 I'm doubtful, Mr. Lybeck, that there is a common law 10 negligence claim here. I don't see that you -- I don't think 11 you have alleged, and I'm not sure if you can -- but I don't 12 know if you can allege -- facts that state a basis for a duty 13 of care by each defendant, when the entire tenor of your 14 complaint is not about negligence at all. 15 The -- the tenor of your complaint is that the 16 defendants engaged in a pattern of so-called investigation, 17 intimidation, coercion, and threats. None of that core set of 18 conduct that you are seeking to attack seems to fit my 19 understanding of Oregon common law of negligence, where there 20 is a duty to act reasonably and to avoid foreseeable injury to 21 others. 22 To the extent you are claiming something more than 23 economic damage in the tort of common law negligence, that 24 needs to be made plainer. 25 And so what I'm -- what I'm criticizing is the 0016 1 approach of this complaint that relies upon a preamble of 2 dozens and dozens of allegations, but does not ever reduce to a 3 concise statement, separately pleaded, the facts that state the 4 claim. 5 So on repleading, you will be ordered, unless I'm 6 persuaded I shouldn't or couldn't do it, to set out separately 7 each of your claims for relief, such that the facts that show 8 the elements are clearly and separately stated. 9 And to the extent you're contending the defendants 10 acted as a group, you have to make that clear. To the extent 11 you contend the defendants are acting individually or 12 separately, you have to -- they need to know, I need to know, 13 you need to know how you are packaging that. 14 So the negligence claim presently doesn't state a 15 claim, because it -- it's not evident, from the face of the 16 complaint, that there is a common law duty that the defendants 17 breached that caused harm, or that there was some kind of 18 special relationship between them. 19 I don't see that you've pleaded facts that show a 20 special relationship that would trigger a negligent 21 misrepresentation kind of tort. But you just need to be more 22 precise. If you really mean to advance these, then you need to 23 put up the allegations that show you fit within this box. 24 Now, I appreciate you've got a -- kind of a different 25 set of facts here than normal, and that doesn't mean it won't 0017 1 fit. But right now I don't think it does fit. 2 So that would be Claim 1. 3 Claim 2, the fraudulent and negligent 4 misrepresentation claim. First of all, those are two different 5 things. If you're alleging fraud, you need to state it 6 separately. If you're alleging negligent misrepresentation, 7 and that's really what you meant in Claim 1, then that's where 8 it should be. 9 A fraud claim has to comply with Rule 9B. The 10 particulars of the fraudulent misrepresentation have to be 11 alleged, or we're done. 9B requirements are very clear, and 12 you didn't meet them, and you have to meet them. You have to 13 set forth separately your fraud claim from any claim of 14 negligent misrepresentation. 15 Fraud, under Oregon law, requires the knowing 16 misrepresentation of a material fact, which -- on which the 17 plaintiff reasonably relies to her detriment. I don't see a 18 fraudulent misrepresentation here in the con -- in that sense. 19 I don't see that you've alleged facts showing a reliance by the 20 plaintiff on a misrepresentation the defendants knew were false 21 and was material that caused her harm. So I'm not sure you've 22 got a fraud claim, and I invite you to go back and take another 23 look at that. 24 If what you want to try to allege is a claim for 25 negligent misrepresentation, there absolutely has to be a 0018 1 factual basis under Oregon law to show a special relationship. 2 Oregon courts just don't even waver on that. 3 Oneida and other cases make clear, if you're going to 4 have a negligent misrepresentation, you need a special 5 relationship. And you still have the same reliance problem. 6 It's inherent in both of these representational things. 7 Claim 3, RICO. If the fundamental premise of the 8 defendants' theory here is that the underlying lawsuit was 9 itself sham and not just weak or unsupportable but wrongful 10 because it was sham, then I think Sosa -- the Sosa case, would 11 recognize the filing -- the knowing filing -- the knowing 12 wrongful filing of a sham lawsuit as a predicate act. But I 13 don't think, as pleaded, the RICO claims -- even inferring as 14 best I can between the lines -- again, set forth the elements 15 that satisfy a predicate act. 16 When you -- when you say there's a violation of the 17 Hobbs Act, when you say there's a violation of the mail fraud 18 statute, you need to be specific. RICO is also subject to 9B 19 requirements. 20 You need to allege what specific act was the act that 21 violated the Hobbs Act. When and what and who? You have to do 22 that as to the mail fraud statute, too. You have to be far 23 more specific than what you've given, if you want a RICO claim 24 to go forward. 25 With respect to the fourth claim, the abuse of legal 0019 1 process, I think when there is a -- I know when there is a 2 conflict between -- or inconsistency between a decision of the 3 intermediate appellate court and the Supreme Court, then the 4 Supreme Court has more controlling weight than when the court 5 is in -- exercising its diversity jurisdiction here, or 6 supplemental jurisdiction. 7 Larson, I think, is the standard. I think plaintiff 8 probably satisfied Larson. But while you're repleading, let me 9 suggest you go to, literally, a jury instruction for each of 10 the torts and figure out exactly what elements you contend 11 you're going to have to prove, and give me facts in this second 12 amended complaint that shows what's there. 13 And then it will be framed up in a way where the 14 defendants can make their best shot, you'll have a chance to 15 respond, and we can get to hopefully a better place. 16 The malicious prosecution claim needs to be correctly 17 titled, No. 1. It's not called that. It's wrongful initiation 18 of civil proceedings. 19 One of the problems I had just reading the complaint 20 again is trying to figure out against which defendants it is 21 brought. Clearly some of the defendants in this action were 22 not parties in the other case. 23 I don't know if you contend that they're liable for 24 the other defendants' conduct in allegedly wrongfully 25 initiate -- initiating that action, or not. So each of your 0020 1 claims needs to be specific. And it might be useful if you 2 just started out by saying, Plaintiff brings Claim 5 against 3 defendants A, B, C, and D, so that we know. 4 Intentional infliction of extreme emotional distress, 5 Claim 6. I'm doubtful, even in the light most favorable to the 6 plaintiff, even with all of the facts alleged about 7 Ms. Andersen's pre-litigation frailty -- it's as though you 8 were alleging an eggshell plaintiff. And then the defendants 9 knew of this frailty, and then deliberately and abusively 10 persisted in what it knew to be wrongful conduct. 11 If that's your theory, I'm not ready to say that 12 doesn't state a claim for intentional infliction of extreme 13 emotional distress, because that's an issue of degree. But 14 that's a very hard tort to plead. It's a very hard tort to -- 15 to establish because the conduct has to be so -- so out of 16 bounds. Not just boorish, not just rude, not just unwelcome, 17 not just a nuisance, not just any of those other adjectives. 18 It has to be at the outer bounds of tolerable conduct. 19 And what I think is your -- you're not quite there. 20 It's alleged -- as alleged, it is very bad. But I'm not sure 21 it's the kind of very bad conduct that the Oregon Supreme Court 22 would say states a claim. But if you're repleading, you might 23 as well just take your best shot. 24 The Claim 7, the statutory CFAA claim. 25 If I'm understanding correctly, the plaintiff's 0021 1 premise here -- the plaintiff's premise, to this point in the 2 complaint, is that she never downloaded anything. There never 3 was any real evidence that she downloaded anything. They never 4 could have had any evidence that she downloaded anything. And 5 they lied. They were reckless, they were wrong, they -- by 6 saying she did download something, or saying that her computer 7 had this evidence. 8 Now, Claim 7, as I understand it, is premised on a 9 hypothesis that if they accessed her computer, it violated the 10 statute. 11 That doesn't state a claim. You can't plead 12 hypothetical facts. You can plead alternatives. You can plead 13 that they did access, and it violated. But you can't plead 14 hyperbole -- or a hypotheses. 15 So, to me, the correct analytical approach is that 16 that claim should not be repleaded unless you have a factual 17 basis to allege -- it can be inconsistent, but you have to have 18 the factual basis to allege it. You can't allege if A then B. 19 You have to allege A. I have a good faith basis to allege A. 20 And as a consequence, B flows. 21 If you don't have that basis, I understand it. And I 22 have a feeling this case isn't going to be turned over on a 23 dime, such that there won't be an opportunity to make a Motion 24 to Amend, to add a claim if you get evidence. But I also have 25 this impression, based on all of your arguments and reading 0022 1 what I've read from the first case, that there's been a fair 2 amount of forensic work done on Ms. Andersen's computers. And 3 I have the impression, although I may be wrong, that you don't 4 have any evidence that there actually was an intrusion on her 5 computer. 6 MR. LYBECK: Your Honor, I think that is, at this 7 moment, with respect to Ms. Andersen alone, essentially 8 correct. 9 THE COURT: And right now, remember, my focus is just 10 Ms. Andersen. 11 MR. LYBECK: I understand. I understand. 12 THE COURT: So if that's the case, if you don't have a 13 factual basis to allege the premise of an intrusion, I don't 14 think you can go forward. 15 And so I would grant the motion with leave to replead 16 when and if the Court gives you that permission, if you 17 discover the evidence; if it's not too late, if the exercise of 18 discretion under Rule 15 is appropriate, and all of that. 19 Trespass to chattel -- oh, by the way, if we ever get 20 into this CFAA intrusion thing, another fact that's not evident 21 obviously, but would need to be developed, is what the scope of 22 the user agreement is for someone who's on this KaFa [sic] 23 plan, or whatever -- KaZaA plan, whatever it's called. What is 24 it the user's agreeing to when they check the box? What kind 25 of consent have they provided? 0023 1 Because, again, Mr. Lybeck's premise was that if there 2 was an intrusion, it was not consented to. If there was 3 consent, it wasn't the right -- you know, it's that -- you -- 4 you know, it wasn't my lamb. It wasn't my sheep who ate the 5 cabbage. And you know -- we're down a few steps in the 6 hypothesis here. And so if we ever go back there, that would 7 need to be a matter of fact developed in the record, what the 8 consent is and what that means. 9 Claim 8, trespass to chattels, has the same problem as 10 Claim 7. Because the common law trespass to chattel claim is 11 premised on an actual intrusion, about which I think there 12 isn't any evidence at the moment. 13 Claim 9, invasion of privacy. The theory about 14 intrusion upon seclusion is also subject to the same problem. 15 If there was no intrusion, then there can't be an intrusion 16 upon seclusion, invasion of privacy claim. So the same 17 analysis would happen here. 18 With respect to the false light theory of invasion of 19 privacy -- and by the way, Mr. Lybeck, if you replead invasion 20 of privacy, and you have different theories, you'll need 21 separate counts within Claim 9. 22 A false light count, if you want to do that. If 23 there's more than one theory, you need separate counts. So 24 false light, you need to be specific, like I was discussing 25 relative to libel and slander. You need to allege the 0024 1 statement or the disclosure that portrayed the plaintiff in a 2 false light. The when, the who did it, and who's liable. So 3 we can evaluate if that's a claim and can it be resolved. 4 So I would -- again, I would lean toward dismissing 5 that, but with leave to replead. And if there's a public 6 disclosure of private facts count to the invasion of privacy 7 claim, I would also dismiss that with leave to replead, 8 specifying what private facts were publicly disclosed; when and 9 how. 10 If there never was a disclosure of private facts that 11 actually were about Ms. Andersen, as opposed to a public 12 disclosure of facts about somebody else that the defendants 13 attributed to Ms. Andersen, which held her in a false light, 14 then you may have only one count. You need to be specific 15 here. 16 Claim 10, libel and slander. That's the same thing as 17 I've been talking about. But, remember, libel is written. 18 Slander is spoken. To the extent you have both, you probably 19 need separate counts there, too. A count for libel, or a 20 separate claim. And one for slander. And each of the 21 statements needs to be pleaded. 22 What was it that was said and published? Why was it 23 false? Why was it libelous, slanderous? Who did it? When did 24 they do it, relative to, and who's liable for it? 25 Then unlawful trade practices claim I'm assuming is 0025 1 intended to arise under Oregon's Unlawful Trade Practices Act. 2 Is that right, Mr. Lybeck? 3 MR. LYBECK: That is correct. 4 THE COURT: ORS 636.608(1) lays out all of the ways 5 you can violate. You need to specify. 6 What was it, which defendant did, that violated what 7 part of the Unlawful Trade Practices Act? 8 Claim 12 is the only claim that I'm thinking should 9 not have leave to replead. That's the misuse of copyright 10 claim. That seems to be recognized in the Ninth Circuit as 11 only a defensive right that someone that in Ms. Andersen's 12 shoes would have as a defendant in the copyright case. Not an 13 affirmative claim. And if there's not any law that permits an 14 affirmative claim, then that should not be repled. 15 And then finally, with respect to this conspiracy 16 theory claim, I -- I can't tell if you're -- if this is a claim 17 brought under common law? Oregon common law? Is it a claim 18 brought under federal common law? Is it a theory of a way to 19 hold more than one defendant liable for the conduct of someone 20 else? Or is it a separate tort? What is it? That needs to be 21 a little more evident from the complaint. 22 So I'm sorry to have monopolized all of this time, but 23 I'm trying to be helpful. I'm trying to be constructive. My 24 inclination, then, would be to grant the Motions to Dismiss, 25 consistent with these thoughts, in an order that simply lays 0026 1 out the ultimate statement. And then talk with you about 2 timing. 3 How much time does Mr. Lybeck need to meaningfully 4 absorb these thoughts and make his -- take his best shot in an 5 amended complaint? How much time do the defendants want, then, 6 to file an answer? And then what I would want from you would 7 be a joint proposal about a meaningful way to address discovery 8 and dealing with the records, so that we could do a meaningful 9 round of dispositive motions. And once we were through that, 10 then and only then, I would consider issues about Rule 23 and 11 the class action, and all of that. Because I -- I think we 12 fundamentally need to figure out if there's claim here or not. 13 And as you all know very well, there have been lots of 14 different kinds of approaches taken by judges around the 15 country, and I'll do the best I can do. I can't predict where 16 we're going. 17 At the heart of this, it seems to me what the 18 plaintiff has is a claim for wrongful use of civil proceedings. 19 And there's a lot of other material, and I don't know how much 20 of it is viable, or not, or how much the plaintiff really wants 21 to advance that. But it's too early to make dispositive kinds 22 of approaches here. 23 Yes, Mr. Lybeck. 24 MR. LYBECK: Generally, I do appreciate your Honor's 25 comments, and I think it is instructive and helpful. And, 0027 1 actually, there's been some similar discussions between counsel 2 that has occurred in this vein over the last -- what? Six 3 months, or so. 4 So I think we can accomplish most of what the Court 5 has asked us to do. Whether you accept it after that, of 6 course that's -- that's your job. 7 We both, I think, started at a time with Judge 8 Crookham where we went in and had Rule 21 motions 18 times a 9 day, and motions to make more definite and certain. And I 10 would take my project back, as I was instructed by Judge 11 Crookham years ago, to say here's what you need to do. And we 12 intend to do that. 13 What I would ask the Court, if you would consider, 14 rather than denying these, actually granting a motion to make 15 more definite and certain on these statements. 16 THE COURT: No. Their motion is the motion that it 17 is, and I just think that technically speaking the motion's 18 well taken. But the Court has to grant leave to replead. 19 Now, are there legal premises you want to raise with 20 me? Do you think I've approached this in an analytically 21 incorrect way in any respect? 22 MR. LYBECK: I think you've approached it in a very 23 efficient and effective way at this hearing, and I appreciate 24 that. 25 Obviously I disagree with some of the things you've 0028 1 said. I think what you -- the comments that you have made -- 2 the rulings are going to be yours. We're going to match 3 your -- 4 THE COURT: But are they wrong? Are they wrong on the 5 law on any particular point? That's what I need to hear from 6 you or from your colleagues here. Is there any error in the 7 approach I've taken here? 8 I don't want to -- 9 MR. LYBECK: No. I think your analysis of 10 Noerr-Pennington is right on, understanding the fact that 11 that's the nature of that; understanding that that, on this 12 record, cannot cause a dismissal of any of these claims. That 13 was absolutely right. 14 Your comments about the individual claims, I think the 15 most efficient, most appropriate way to handle those -- those 16 are your decisions to make, with some discretion, to say do 17 they match up with the elements of those claims specifically 18 enough? Pleaded specifically enough? And we'll cure those. 19 THE COURT: Mr. Lybeck, given the fact that from a 20 management point of view I'm going to control the case to deal, 21 first, with Ms. Andersen's claims and the viability of them, 22 would it be easier for your purposes that your amended 23 complaint address only her claim -- her claims, and not those 24 on behalf of the putative class, with leave to add those once 25 we've -- or deal with those once we've determined if 0029 1 Ms. Andersen has a claim? 2 Does that approach offer any helpfulness or -- because 3 I'm thinking if we factor out now for this next approach the 4 complications that arise from all of the theories of class 5 action and -- for example, if all of your claims fundamentally 6 are common law Oregon claims -- you know, the people you might 7 want to represent from Arkansas or Alabama, or somewhere else, 8 may not even be within the scope of the class. This might be 9 an Oregon common law sort of thing, as opposed to not. 10 Because if you don't have this federal claim, if you 11 don't have federal bases that apply outside of the bounds of 12 Oregon, it's a whole different analysis. 13 Would it be -- well, think about whether it would be 14 of any help to take the pleading in stages. 15 MR. LYBECK: Right. There's some benefit there. And 16 there's also a benefit, I think, for us to try to say, Okay, on 17 the cases and the people that we have not filed on behalf, who 18 are awaiting this determination and part of certification -- 19 insofar as I'm going to go on certification -- does it make 20 some sense to either file separate claims for those people, 21 move to consolidate with this action, or add -- add plaintiffs 22 as putative class representatives? 23 THE COURT: Okay. Way too much information. So 24 that's -- that's your burden, not mine. 25 MR. LYBECK: I'll think about it, your Honor. 0030 1 THE COURT: I just offer the observation. I'm 2 certainly not inviting more lawsuits. 3 I -- but -- 4 MR. LYBECK: I understand your comment. I'll think 5 about it. 6 THE COURT: People need to do what they need to do, 7 and we respond the way we need to respond. 8 MR. LYBECK: All right. 9 THE COURT: Are there any other legal thoughts you 10 need to raise before I turn my attention to Mr. Gabriel and 11 others? 12 MR. LYBECK: With the opportunity to replead, I think 13 anything we talk about is going to be rendered moot by what we 14 do. 15 THE COURT: Thank you. 16 Mr. Gabriel. 17 MR. GABRIEL: Thank you, your Honor. And may it 18 please the Court. I do also appreciate your taking the time to 19 lay out what your concerns are. 20 I'll try to address the concerns in the order you 21 raised them. I do respectfully disagree with some of the 22 things that you said. And I'll try to do this in order. 23 But, first, I think it's important to remember the 24 context. And this is going to lead to how I address the claim 25 splitting and compulsion counterclaims. 0031 1 I think the Court should remember that in Andersen 2 1 -- and I'll use that terminology, too -- that then -- 3 Ms. Andersen -- I'll use that instead of plaintiff and 4 defendant -- raised these counterclaims. 5 We moved to dismiss. She then amends. She tries a 6 second time. We moved to dismiss again. And the Court says 7 they didn't move to amend correctly, so struck it. They try a 8 third time, and we move to -- and we move to dismiss a third 9 time. We filed three sets of briefs in that case. 10 Finally, the Court sets oral argument on our Motion to 11 Dismiss. Now, by this time all of the discovery times have 12 run, times to add new parties have run. And right before oral 13 argument, the -- Ms. Andersen comes and says, I want to 14 voluntarily dismiss those and start all over again. 15 In that context, your Honor, we specifically raised 16 the claim splitting argument and said that you can't avoid the 17 court deadlines by starting all over. You've got to try all of 18 the cases in one place. 19 And I would suggest to the Court that if the Court 20 doesn't find compulsory counterclaim here in this context, 21 you've created a precedent where a party could blow all of the 22 deadlines and then at the last minute say, I think I'll start 23 over. 24 THE COURT: Well, remember, though, No. 1, I haven't 25 created anything. 0032 1 MR. GABRIEL: Oh, I -- 2 THE COURT: No. 2, the filing of this action and the 3 dismissal of the claims in the first case has already been 4 reviewed and approved by the Court. So it's not as though 5 whatever my colleagues concluded in that case are -- is 6 precedent forever. What it is, however, is the -- the 7 permission this plaintiff received. The Court, you're saying, 8 was aware of your concerns. The Court was aware of your 9 frustration at not getting a hearing on the merits of the 10 viability of these claims, and still permitted this to happen. 11 Now, I'm not in that case. 12 MR. GABRIEL: Sure. 13 THE COURT: And that's a separate stand-alone set of 14 decisions, which maybe will find their way to someone to 15 review. I don't know. But -- 16 MR. GABRIEL: Well, let me address that, your Honor. 17 And I'll point out, we raised claims splitting. Neither the 18 court -- neither Judge Ash nor Judge Redden addressed the 19 compulsory counterclaim issue. 20 And this -- the first question you asked in the series 21 of questions you said asked us, Has any court applied 22 Rule 13(a) to a party who seeks to bring a new action based on 23 claims asserted that were dismissed without prejudice? 24 The answer is yes. And we didn't cite them in our 25 briefs, but I will give you some law. 0033 1 THE COURT: Good. 2 MR. GABRIEL: And I actually have extra copies of the 3 cases, if you would like, too. 4 THE COURT: That's even better. 5 MR. GABRIEL: And I will tell you what they are. If I 6 could approach now, with your permission? 7 THE COURT: Sure. 8 MR. GABRIEL: I'll cite three cases, your Honor. 9 I've got a set for Mr. Lybeck, as well. 10 THE COURT: Okay. 11 MR. GABRIEL: All right. First, your Honor, I'll call 12 the Court's attention to McConnell verse Applied Performance 13 Technologies. I have a Lexus, not Westlaw cite. It's 2002, 14 U.S. District, Lexus, 27599. Decided December 11, 2002. It's 15 a Southern District of Ohio case. 16 Call attention -- it's page 13 of this printout, and 17 they actually highlight some of this for the Court's benefit. 18 The case, to be upfront, deals mostly with an Ohio state Rule 19 13(a), which is identical to federal. 20 The court says, the plaintiff -- the plaintiff, there, 21 made the argument that although the defendant dismissed its 22 claims against him, with prejudice, he -- it's an odd 23 circumstance. And, again, "plaintiff" and "defendant" is 24 confusing. Plaintiff was the defendant in the first case. 25 So I'll say, in the first case, the defendant -- 0034 1 plaintiff moved to dismiss with prejudice. Same as our facts. 2 That's what we did in case 1. 3 The defendants said, Hey, I dismissed without 4 prejudice, so I haven't waived anything. The court 5 specifically rejects that argument and says, compulsory 6 counterclaim. 7 It cites, Francis -- it cites an Ohio case. It said, 8 The Court rejected plaintiff's argument that because there had 9 been no final judgment on the merits in the earlier case, the 10 compulsory counterclaim rule did not apply. 11 The court says once the party -- the plaintiff in the 12 first case dismissed with prejudice, it had a right to rely on 13 the operation of Rule 13(a) to bar -- 14 THE COURT: That was a dismissal with prejudice. 15 MR. GABRIEL: The plaintiff dismissed with prejudice 16 in the first case, and so did we. In our first case, Andersen 17 1. 18 The case the court here is saying -- 19 THE COURT: The counterclaim was not dismissed in case 20 1? 21 MR. GABRIEL: I'm sorry? 22 THE COURT: In the case you're talking about, in the 23 first proceeding, the claim -- the counterclaim that existed in 24 the first case, how was it disposed of? 25 MR. GABRIEL: Voluntarily dismissed, without 0035 1 prejudice. Exactly the same as here. And the case is on all 2 fours. 3 THE COURT: Was the second case, the case in your 4 hands, filed before the dismissal -- 5 MR. GABRIEL: That I don't recall, your Honor. I 6 apologize for that. 7 THE COURT: See, I don't think -- I've looked and 8 looked and looked. I actually saw this case, and I dismissed 9 it as not really helpful, because, No. 1, it was a situation 10 where the second filed action occurred after the dismissal. 11 See, when you filed your motions here, that first case 12 was still pending. There was a time when the Court could have 13 said, No, bring them here. Bring them all, or don't bring them 14 at all. 15 And in -- what makes our circumstance so different is 16 that there was explicit leave of court given to do what 17 Mr. Lybeck was permitted to do. 18 MR. GABRIEL: And I respectfully submit that that -- 19 that is not depositive. And I would say to you -- 20 THE COURT: Well, it may not be depositive, but the 21 Court may have had authority to do it. 22 MR. GABRIEL: But it's the same -- and I'm not off the 23 top of my head remembering the case. But we cited to you a 24 case where the federal court -- someone -- a jury demand is 25 stricken. And then the federal court says, Okay, I'll let you 0036 1 dismiss without prejudice, so you can refile it, and you can 2 renew your jury demand. And the Ninth Circuit said, Completely 3 improper. You can't do that. You cannot get around the rules 4 by trying to replead, and the district court was wrong. 5 The third case in your packet here says exactly the 6 point I was going to make, which is if the defendant does 7 that -- it's a District of Delaware case. Proctor & Gamble -- 8 THE COURT: And what year was that? Year? 9 MR. GABRIEL: I'm sorry. District of Delaware, 1995. 10 Proctor -- it's the third case I gave you. Proctor & Gamble 11 versus Paragon. 12 The court dismissed a patent counterclaim without 13 prejudice based on a standing argument. And the court said, 14 Dismissal of the counterclaim without prejudice does not 15 foreclose a subsequent finding that the infringement claim was 16 a compulsory counterclaim and should have been brought. 17 In this case, the district court itself said, I'm 18 going to dismiss that without prejudice. So the court acted, 19 then said, I'm not saying that it's not going to be a 20 compulsory counterclaim later. 21 And the court says if the defendant there doesn't 22 replead it in that case, it proceeds at its peril. 23 Your Honor, we made that argument below. They took a 24 chance here. They could have pled -- 25 THE COURT: So did you, I guess. I mean, we -- we've 0037 1 done what we've done. You know, we are where we are. 2 I have -- I have -- don't I have to give full faith 3 and credit, so to speak, to -- 4 MR. GABRIEL: No, your Honor. 5 THE COURT: -- a decision of this court between these 6 parties about this issue? 7 MR. GABRIEL: I don't believe so, your Honor. I think 8 the Court needs to give it all respect to Judge Redden and 9 Judge Ash. I think you have to give full faith and credit to 10 the Rules of Civil Procedure and the Ninth Circuit. 11 THE COURT: I can assure you that the oath does 12 supersede that. 13 However, when the plaintiff asks for leave -- in this 14 case, the defendant -- when Mr. Lybeck sought leave of court to 15 dismiss without prejudice his counterclaims because he had 16 already filed a new case and he was seeking to be the 17 prosecutor as opposed to the defender -- it was a logistical 18 device, it seems -- he alleges in that complaint, I'm trying to 19 get the case reformatted this way. I want my counterclaims 20 dismissed voluntarily. But if I fail, I'm going to move to 21 consolidate. 22 Let's talk about that hypothetical. 23 If the Court had not permitted the dismissal, we would 24 then have these two claim -- two actions simultaneously 25 existing. There would have been a motion to consolidate. 0038 1 Which, under the rules, likely would have been granted, because 2 they involve the same matters. 3 There isn't any dispute but that the plaintiff's 4 claims here arise from the same core set of facts that existed 5 elsewhere. 6 Once consolidated, we would have had this combination 7 of issues again. 8 MR. GABRIEL: I respectfully disagree with that, your 9 Honor. I think in your hypothetical, the analysis would be 10 this case would dismiss all of these counterclaims as claims 11 splitting. 12 THE COURT: All right. Now what would you have 13 gotten? You would have had Mr. Lybeck as a counterclaimant 14 trying to bring a class action. What would the difference have 15 been? 16 MR. GABRIEL: The difference would be we have several 17 new parties that were not added and were too late to add in 18 Andersen 1. We have a number of claims that were not added 19 and -- 20 THE COURT: But he could have sued them separately. 21 He could have sued them separately and brought a consolidation 22 motion there. 23 MR. GABRIEL: I respectfully disagree. 24 THE COURT: Why? 25 MR. GABRIEL: Because res judicata applies to parties 0039 1 and their privies as to -- we talk about the concept of virtual 2 representation in the claim-splitting context. These parties 3 were virtually represented by the record companies. 4 They're all -- you know, the contractor that we hired 5 to do the investigation. The contractor we hired to deal with 6 settlement -- take settlement calls. That concept would apply. 7 I submit he couldn't. 8 Your Honor, the issue here is not I'm going to try to 9 do it in a different forum. The issue is I blew the discovery 10 deadlines, I blew the time to amend parties, and I'm going to 11 start over. 12 THE COURT: Well, now, wait a minute. You keep saying 13 blew deadlines. I didn't see anything in the record, in the 14 other case, indicating that the Court was upholding the initial 15 automatic case management order intact. 16 In fact, Judge Ash was issuing repeated scheduling 17 orders that contemplated ongoing briefing, which assumes the 18 Court is going to issue an order regarding discovery, and other 19 things, once these matters are accomplished. I don't think 20 you've got anything relative to blowing discovery deadlines. 21 There was an active case manager in place here. 22 MR. GABRIEL: Right. 23 THE COURT: The court was directing deadlines and 24 briefing in trying to manage the case. There isn't anything in 25 that record, that I can see, that suggests the plaintiff wasn't 0040 1 complying -- the plaintiff here, the defendant there, wasn't 2 complying with the Court's scheduling orders, which are totally 3 within the discretion of the court. 4 MR. GABRIEL: Sure. But I do believe the time to add 5 parties had passed in that case. The case went on for two 6 years. 7 THE COURT: What order did Judge Ash issue that the -- 8 MR. GABRIEL: Your Honor -- and I'm going from memory 9 myself, and I apologize. But I do seem to recall there was a 10 scheduling order in place that had deadlines -- 11 THE COURT: The initial automatic order which was 12 superseded by his orders that continually set deadlines. 13 There wasn't any line in the sand, was there? 14 MR. GABRIEL: I don't believe we ever changed -- 15 THE COURT: At that stage? 16 MR. GABRIEL: I don't think we ever changed -- 17 THE COURT: None of this gets you anywhere. Those are 18 management issues that a judge has complete discretion to 19 control. 20 MR. GABRIEL: Understood, your Honor. 21 THE COURT: Okay. 22 MR. GABRIEL: And my point is, on the compulsory -- 23 and I'll just note the other case we handed up to you, a case 24 called, SSMC, Inc., versus Steffen, S T E F F E N, Fourth 25 Circuit, 102 F.3d 704, where the Court did say, given that 0041 1 SFAC's counterclaim was at -- it repeatedly stated compulsory, 2 the district court was correct in concluding that a dismissal 3 without prejudice would have the same effect as a dismissal 4 with prejudice. 5 The whole purpose for Rule 13(a) is you try the claims 6 in one case. You don't get to start over because I want to 7 start over. 8 The right remedy would be to ask -- to have asked 9 Judge Ash for permission to amend and assert and -- to try new 10 parties and at least get heard on the merits on our third 11 motion to dismiss in that case. Not to start all over with 12 class action, and whatever I else. 13 And I note this one has been amended. We've tried 14 five times to get this dismissed, because we don't think they 15 state claims, and we don't think they can state claims. 16 And, your Honor, I respectfully submit that the -- the 17 rule on compulsory counterclaims does bar this here. 18 I think the Court understands my argument, and I'll 19 move on. 20 THE COURT: I do. And I will take all of what all of 21 you say, back, to look at it again. 22 MR. GABRIEL: I know that you will, your Honor, and I 23 appreciate that. 24 Let's see. Moving on, you then raised the issue of -- 25 THE COURT: Statute of limitations. 0042 1 MR. GABRIEL: Of the statute of limitations. Thank 2 you. 3 And, your Honor, as I understand it, we raised statute 4 of limitations, as I remember it, on three torts: Invasion of 5 privacy, defamation, and the Uniform [sic] Trade Practices Act. 6 You have raised the question about relation back. And 7 I will call the Court's attention to the Bailey case, from the 8 Seventh Circuit, that we cited in our briefs, which 9 specifically says you don't get relation back in a different 10 case. 11 THE COURT: Right. 12 MR. GABRIEL: I will also -- that Mr. Lybeck and I 13 are -- are opponents in another case called Ledbetter, which is 14 now in the Ninth Circuit. 15 In that case, Mr. Lybeck cited law from the Third 16 Circuit. I can get you the citation that says, When you 17 dismiss without prejudice, it's as if the first claim never 18 existed, and you don't get any tolling benefit. 19 And so there is some authority to that effect as well. 20 Again, I could get the Court the citation to that case. 21 THE COURT: You probably should, if you want me to 22 think about it. 23 MR. GABRIEL: We'll do that, your Honor. The point is 24 I think the law is quite well settled. There wouldn't be a 25 relation back for those two reasons. 0043 1 THE COURT: Well, I don't have a problem understanding 2 that Rule 15(c) doesn't leap across case boundaries. 3 What I'm wondering about, just as a matter of theory 4 here, is this unique circumstance where we had two 5 simultaneously pending actions. We had the district court 6 ultimately approving the voluntary dismissal in one action of 7 counterclaims, so that they could be more efficiently handled 8 in the other action; the other action alleging that if we don't 9 get it this way, we want it through consolidation. That's kind 10 of an odd set of circumstances. 11 Was there some temporal bridge between these two cases 12 that would permit relation back is the man -- odd manner of 13 this procedural stance, as interpreted by Judge Ashmanskas and 14 Judge Redden, the equivalent of a -- of a consolidation motion, 15 such that the relation back is in the same action? 16 I don't have a problem saying Rule 15(c) does not 17 relate back to a separate case, but we have cases in this odd 18 state at the time the dismissal is -- is blessed. 19 MR. GABRIEL: I would say that, your Honor -- I guess, 20 a couple of things. One is I'm not familiar with any law -- of 21 course, I haven't researched this issue. 22 THE COURT: I don't know that it's happened before. 23 MR. GABRIEL: Maybe not. 24 But as the Court well knows, sometimes you consolidate 25 two cases for discovery purposes only, for a variety of 0044 1 reasons. I would suggest in a consolidation, the cases, I 2 think, maintain their separate identity for purposes of statute 3 of limitations. Would seem to be the logical benefit. 4 Because, again, what would prevent someone from filing seriatim 5 actions and moving to consolidate when they've missed the 6 statute of limitations and argued relation back? 7 THE COURT: Well, let me say that at this moment I 8 think there's a serious concern about statute of limitations 9 issues around the relation-back concept. 10 But I can't dispose of it, because I still can't tell 11 from this pleading, with certainty, what act it is that is the 12 triggering act, so that it's evident from the face of the 13 complaint that the act occurred more than a year before the 14 filing of this claim and there isn't any relation back. 15 So I think it needs to be teed up in a more precise 16 way, and I don't need to decide, one way or the other, today, 17 whether Rule 15 has some odd permutation which could be applied 18 in this setting. 19 But what I would require of Mr. Lybeck is some 20 precision, so that we can tell. And maybe in reviewing it, he 21 might think differently about the repleading of it. I don't 22 know. 23 MR. GABRIEL: Sure. 24 THE COURT: Hope can spring eternally. 25 MR. GABRIEL: And I appreciate your Honor's concerns. 0045 1 Obviously the plaintiff's position -- defendants' 2 position -- I have to stop that. I know my e-mails incorrectly 3 called me the plaintiffs repeatedly. I apologize. 4 The defendants' position here is that the complaint is 5 pretty clear that the facts -- it relates to the investigation. 6 It was before we filed the original suit. Or it's the filing 7 of the original suit, is what our position is, on what the 8 operative facts are. 9 THE COURT: Well, if that's the case, it may clean up 10 nicely. It may not. I don't know. 11 MR. GABRIEL: Okay, your Honor. I appreciate that. 12 Turning to the issue of Noerr-Pennington. 13 THE COURT: Yes. 14 MR. GABRIEL: I get a couple of things. 15 And, first, I have maybe an overriding concern if the 16 Court's saying he repleads, then we answer. 17 THE COURT: Well, we're not going to do any more Rule 18 12 motions. That's an order I'm entering, because we're going 19 to get to resolution here. And I'm not going to put you, your 20 clients, or the plaintiffs to another round of Rule 12 motions. 21 I'm going to make a dispositive ruling on a record I can deal 22 with. This record isn't the one. 23 And it's in your own best interest that you get this 24 record perfected, so that the reviewing court has a clear grasp 25 of what I had before me in deciding the plaintiff doesn't have 0046 1 a claim if I conclude that's the case, or the immunity. 2 Now, I'm very clear with qualified immunity in the 3 1983 setting; the principle behind getting a quick ruling on 4 it, because parties shouldn't have to defend if they're immune. 5 But even in 1983 cases for qualified immunity, the 6 party has to show the factual record is undisputed. Or 7 assuming, even in the light most favorable to the nonmoving 8 party there can't be anything but immunity here, that record 9 needs to be made. And it can't be made on this amended 10 complaint. It's just unworkable. 11 MR. GABRIEL: And I -- I would say, your Honor, 12 again -- 13 THE COURT: If, by the way, you think there is a basis 14 to sever out those immunity issues, to deal with first and 15 right out of the gate, and only those, that's the kind of 16 management suggestion I want you to make in your report. 17 If it makes sense for you to focus only on the issues 18 of the immunity, and nothing else, so that you can move for 19 summary judgment on it because as far as you're concerned it's 20 dispositive for the whole case, then let's try that; if -- if 21 there's a way to make management sense out of that. 22 But there's been too much of every kind of motion 23 practice among here, and I'm not going to let it continue in an 24 un -- unfocused way. 25 MR. GABRIEL: Sure, your Honor. And I appreciate 0047 1 that. And please understand, I'm not attempting to argue with 2 the Court, but I do think I need to make a record for my 3 clients. 4 THE COURT: Well, you don't have a right to make 5 repeated Rule 12 motions. 6 MR. GABRIEL: And I think -- obviously the Court is 7 the manager of the case, and it is. I understand that. 8 THE COURT: Right. 9 MR. GABRIEL: But, your Honor, we've never gotten a 10 ruling on one. 11 THE COURT: You're going to get it. I'm making a 12 ruling, today, that the complaint, in essence, doesn't state a 13 claim, and plaintiff gets to replead. But I can't rule 14 dispositively on your immunity motion on this record. 15 If you want a dispositive ruling on it, you need a 16 viable complaint and you need to be able to make a motion that 17 shows: Here are the undisputed facts that establish immunity 18 as a matter of law. 19 MR. GABRIEL: Correct, your Honor. 20 THE COURT: You don't get there from here on this 21 motion. 22 MR. GABRIEL: On today's motion. 23 THE COURT: Exactly. 24 MR. GABRIEL: That's correct. 25 And my point is, if Mr. Lybeck goes back and tries to 0048 1 replead, he may plead facts that would allow the Court to rule 2 on the face of the complaint. And the problem is I 3 respectfully submit -- 4 THE COURT: Which is why -- you know, don't argue with 5 me about procedure. If you file an answer that asserts as an 6 affirmative defense immunity, you're not waiving it. 7 You can simultaneously be suggesting to me that we 8 want to do a staged dispositive attack on this pleading. 9 He's not going to get another amended complaint unless 10 there are new facts that come to light. All right? This is 11 his chance to get it right. 12 And then you're going to say, we want -- we want our 13 dispositive challenge. And it -- it's going to make sense, 14 because he will have given us either, on the face of the 15 complaint -- or you're going to give me by way of additions to 16 the record in support of a summary judgment motion, a record on 17 which I can make rulings. 18 This is not productive. Your motion doesn't get you 19 anywhere, because all it permits is a ruling to dismiss with 20 leave to replead. 21 MR. GABRIEL: Well, respectfully, your Honor -- and I 22 promise I'm not arguing with the Court. I'm just trying to 23 make a record for my clients. 24 I do believe we'd be severely prejudiced, because the 25 next time I don't think he would get leave to replead again. I 0049 1 think there's laws that say you can't keep trying over and 2 over. 3 THE COURT: Now, look, Mr. Gabriel. As far as I'm 4 concerned today, until there's a ruling otherwise, this is the 5 first Rule 12 motion in a case in front of me. 6 I'm required to grant leave to replead when justice 7 requires. And I don't know of any -- any -- holding in the 8 Ninth Circuit that would uphold the trial judge that prevents 9 repleading, unless I can say there isn't any way a claim can be 10 stated. And there's only one in this claim, and it's the 11 misuse of copyright. I can't get there from here. 12 MR. GABRIEL: Your Honor, I don't disagree with a word 13 you just said. And, again, my concern is, essentially, if you 14 say there's no possibility on the next iteration, we could 15 move -- 16 THE COURT: Then you're going to make a summary 17 judgment motion, so that you live or die on a record and not on 18 a complaint. So you get the motion granted or denied on a 19 record and not on the complaint. Because you've been down this 20 road with nothing productive on either side, it seems to me, 21 and we're not going to do it again. 22 MR. GABRIEL: Okay. And last word, your Honor. 23 Please, I'm just making a record here for my client. I 24 respectfully submit there is prejudice to the defendants, 25 because we're required to spend a whole lot of money in 0050 1 discovery where the face of the complaint may not satisfy the 2 claim. 3 THE COURT: You know what, it would be prejudicial to 4 your client to make another Rule 12 motion, because I can 5 virtually guarantee you, unless you give me a record that shows 6 the context within which these claims arise, I can't do 7 anything dispositive. 8 MR. GABRIEL: Okay. 9 THE COURT: It is not a good use of anyone's resources 10 to do Rule 12(b) practice, anymore, on these theories. You 11 need -- you need to give the Court the record that supports 12 dismissal on a dispositive basis, if that's the case. 13 MR. GABRIEL: Okay. 14 THE COURT: And we need to stop playing with theory. 15 We need to have the plaintiff put up her proof. 16 MR. GABRIEL: And I agree with your Honor. 17 The burden is on the plaintiff to plead operative 18 facts, and he needs to plead them. And, again, right now we 19 suggest that the facts are -- seem to be -- we filed a case 20 that he says -- or she says was meritless. 21 THE COURT: No. She says -- she says, in the light 22 most favorable to the plaintiff, it not only was meritless, it 23 was brought without any actual basis in fact to believe there 24 was merit. It was done knowing that the investigation on which 25 it was based was fundamentally flawed, and it was done despite 0051 1 repeated opportunities to withdraw. 2 Now, that's a little more than alleging a weak case. 3 MR. GABRIEL: And the question comes down to, is that 4 a sham as a matter of law, what you plead, as opposed to we 5 lost? 6 THE COURT: It seems to me the theory that underlies 7 all of what Mr. Lybeck is saying in these many, many, many, 8 many, many pages and allegations does state a claim for 9 wrongful use of civil proceedings under Oregon common law. 10 But I can't -- I don't know if he has the facts to 11 support it. I don't know what the nature of this underlying 12 investigation is. 13 I don't know whether there was a basis reasonably for 14 the plaintiffs in the first case, the defendants here, to think 15 there was -- it was reasonable to bring an action for copyright 16 infringement against Ms. Andersen. I don't know any of this. 17 All I know is that Mr. Lybeck vociferously alleges 18 otherwise. 19 MR. GABRIEL: Understood, your Honor. And I heard the 20 Court, and I think the best way would be to -- you know, see 21 what they replead. And, you know, we can come back to the 22 Court with a plan. And as you suggest, it may well be we come 23 and say, Can we bifurcate and address this issue first. 24 THE COURT: I'm all for staging this -- 25 MR. GABRIEL: Yeah, I understand. 0052 1 THE COURT: -- in the most meaningful way. 2 And if immunity is where you want to put your eggs, 3 and you think you can make a dispositive motion on a full 4 record to do it, I'm not unwilling to do the work. I am 5 unwilling to put the parties through another very undirected 6 process that gets to whether we have a case or not. We need to 7 go meaningfully forward, and I know I'll be able to do that 8 much. 9 I don't know what the merits will show. I don't know 10 what can or can't be established. And I don't know what, in 11 the meantime, might happen out in the world; since it seems 12 like there's lots going on among you and others. But there you 13 have it. 14 MR. GABRIEL: Okay, your Honor. And I do want to -- 15 if you'll just bear with me one moment, my client was tapping 16 me here. 17 THE COURT: Yes. Tap away. 18 (Pause, conferring.) 19 MR. GABRIEL: Your Honor, my client was just asking 20 whether it might be possible, along the lines the Court 21 suggested, to deal with the kind of plan for going forward 22 before we file an answer. You know, once -- 23 THE COURT: To deal with what? 24 MR. GABRIEL: To come up -- let's get together and 25 have a plan after they replead. Would it be possible -- 0053 1 THE COURT: If you don't want to file an answer and 2 instead you want to file a Motion for Summary Judgment, if 3 that's your issue -- 4 MR. GABRIEL: Actually even simpler than that. I'm 5 asking if perhaps we could have some sort of conference to talk 6 about a plan before we have to answer, to figure out the best 7 way to proceed. 8 THE COURT: Well, there isn't any reason you can't 9 confer any time, any day. 10 MR. GABRIEL: Sure. 11 THE COURT: And all I'm -- all I was suggesting was 12 that I would want to know from you what a meaningful benchmark 13 would be for the plaintiff to file a complaint and for you all 14 to give me a report. 15 I -- I just assumed you would want to file an answer, 16 given that, to me, is the way to focus the issue. But if you 17 think there's a different approach that would get us to a 18 dispositive hearing on a record that works, I'm open. 19 MR. GABRIEL: That's fine. And I just wanted clarity 20 on that. I appreciate that. 21 I'm going to leave Noerr-Pennington here in a moment, 22 but I do want to address the Court's questions that you asked. 23 THE COURT: Yes. I was focusing on the 24 Noerr-Pennington case. And so my question about the antitrust 25 context came out of the fact that virtually every case that you 0054 1 cited was an antitrust Noerr-Pennington case. 2 There are a few others, but they don't seem to focus 3 on the second element of the Noerr-Pennington immunity, because 4 they're not antitrust cases. 5 And from that I inferred the notion that this 6 Noerr-Pennington immunity is really the federal common law 7 equivalent to the state litigation immunity or privilege. That 8 as long as there is a -- an objectively reasonable basis to 9 bring the lawsuit -- it doesn't have to be much -- you're fine. 10 The fact of bringing the lawsuit is privileged. So it's the 11 opposite burden. 12 You have to show you had some -- some basis that's 13 legitimate, whereas the plaintiff has to show the absence of 14 that basis and something on the order of an improper purpose or 15 ulterior motive or a desire to get a result that isn't 16 litigation-oriented, something like that. 17 MR. GABRIEL: Sure. And -- it's a very good question 18 that the Court asked. 19 And I think the best analytical place for how you deal 20 with the second element is probably Sosa verses DirectTV. And 21 obviously that's a RICO case. There wasn't an antitrust. 22 Sosa -- and I found it a difficult case to read. It's very 23 intellectual, analytical. 24 But as I read, Sosa -- and I think it was Judge 25 Kozinski, said he was -- he approaches -- or the court 0055 1 approached Noerr-Pennington as a rule of statutory 2 construction. And said the real issue is do we stretch a 3 statute so far that it impedes on the right -- or the right to 4 petition. And that would apply, I think, regardless of what 5 statute you were under, whether it would be RICO, as in Sosa, 6 or other cases. 7 And I think the Court is aware -- and I could cite you 8 cases. There are a lot of cases, of course, that apply 9 Noerr-Pennington outside the antitrust context. Sosa is one, 10 of course. 11 THE COURT: Well, the only reason I raised the 12 question I sent you was because you all seemed very intent on 13 quoting the second element from Noerr-Pennington, which seems 14 an antitrust commercial kind of element that's hard to apply 15 in -- when the conduct at issue here was your client's conduct 16 in a commercial sense, but focused against an individual who 17 isn't in business, who is a private person. 18 MR. GABRIEL: Yes, your Honor. And the TFTF case, I 19 think, you provided I think phrases it very well; how 20 Noerr-Pennington gets applied in a noncompetitive context. 21 THE COURT: So you agree that case is not -- is -- is 22 helpful and is the correct orientation in a case like we have? 23 MR. GABRIEL: Yes. And not inconsistent with Sosa. 24 It's talking about using the government process to cause some 25 harm. I think that's right. 0056 1 THE COURT: Okay. 2 MR. GABRIEL: And let's see. You also asked, last -- 3 yesterday -- and this is the last one that we haven't already 4 addressed. Can -- can Noerr-Pennington apply to defendants who 5 are not parties in the first action? The Sosa case itself 6 says, Yes. And it's cited to you. It's -- 7 THE COURT: So long as they are in privity with, or 8 should have been sued -- what? 9 MR. GABRIEL: I'll just read you the quote, your 10 Honor. It's 437 F.3d at 937. 11 And what the Court says: 12 And our conclusion is consistent with established 13 Supreme Court law rejecting burdens on the right to 14 petition the courts even where no actual litigation 15 was pending. 16 Cites a couple of cases. 17 Also inconsistent with our decision in Liberty Lake 18 Investments, in which we held that Noerr-Pennington 19 immunity extended to an individual who funded 20 anticompetitive litigation but who was not himself a 21 party to the litigation, and was, therefore, not 22 himself petitioning the courts. 23 Cites a case called Baltimore Scrap Corporation, out 24 of the Fourth Circuit, which is on that point. That's 25 237 F.3d 394, Fourth Circuit, 2001. Also a Third Circuit case 0057 1 called AD Bedell, B E D E L L, v. Philip Morris, 263 F.3d 239, 2 Third Circuit, 2001, says exactly the same thing. 3 I would also call the Court's attention -- oh, and I 4 would -- I would -- and the quote from the Baltimore Scrap case 5 is also a good one, your Honor. This is 237 F.3d at 400 to 6 '01. 7 The court rejects the argument that Noerr-Pennington 8 protects parties only to the prior litigation. It says PR -- 9 PRC -- PRE -- Professional -- the Supreme Court case -- is not 10 so restrictive as to protect only the litigant from later 11 liability. In a case decided before PRE, this circuit -- 12 THE COURT: My question wasn't so much dependent on 13 the status of a current defendant as a litigant in the prior 14 case, but I guess trying to think ahead to how that act or role 15 would fit within the two-part test. 16 MR. GABRIEL: One other case that I called to your 17 attention, your Honor, is a Ninth Circuit case called Freeman 18 versus Lusthaus, 410 F.3d 1180, at 1186, Ninth Circuit, 2005, 19 which I think address the question you just asked. 20 And the court says there that: 21 The First Amendment protections reflected in 22 Noerr-Pennington belong to the defendants in the 23 original case, through their employees, law firms, and 24 lawyers, as their agents in that litigation get to 25 benefit as well. 0058 1 I mean, it talks about the agents. 2 Here, I submit -- so that case is helpful, I think, on 3 that question where you talk about agents, employees, 4 contractors. 5 Obviously all of the courts have held that 6 Noerr-Pennington extends to pre-litigation activity. And so 7 the folks who are involved in that pre-litigation activity -- 8 like in this case, the Settlement Support Center or Safenet -- 9 would have the benefit of Noerr-Pennington if it was incident 10 to some real estate litigation activity, which is what's 11 alleged. 12 And so I think -- hopefully that answered the Court's 13 question. 14 Scrambling through my notes, your Honor, to make sure 15 I answered all of your questions. 16 In terms of -- let's see. On -- I think we had raised 17 the same issues on the Oregon litigation privilege. As we've 18 already discussed the Noerr-Pennington, the Court understands 19 that. 20 We basically agree with the Court's comments -- 21 basically we agree with the Court's comments on all of the 22 various claims as you went through them. 23 I would point out -- so I would just make a couple of 24 notes for the Court's benefit. 25 On the RICO claim, I would just call the Court's 0059 1 attention to Sosa and Rothman, I think are both Ninth Circuit 2 cases. And the IS Joseph case, an Eighth Circuit case that we 3 cited that say mere threats of litigation cannot be extortion 4 under the Hobbs Act. And so I think as a matter of law, that 5 may be relevant to whatever plaintiffs -- 6 THE COURT: Does that -- how does that square, not 7 with the -- on its face, I understand that. 8 But what if the premise of the plaintiff's claims is 9 that it is a threat of wrongful litigation? A knowing wrongful 10 threat to extort when there isn't in any basis -- when there 11 isn't any basis in law or fact? 12 MR. GABRIEL: I think that's the remedy. And the 13 Eighth Circuit in the -- 14 THE COURT: What do you mean "the remedy"? 15 MR. GABRIEL: The remedy would be that -- a wrongful 16 initiation claim. And the Eighth Circuit said we are loathe to 17 make a threat of litigation a federal crime. 18 Even if it was baseless -- and I think the Eighth 19 Circuit may have even said that -- that the remedy would be in 20 a state law tort if there were any remedy at all. And so I 21 submit the standard is fairly high for that. 22 On the intentional infliction of emotional distress 23 claim, the Court laid it out. And I would only point out the 24 defendants' view that a special relationship is required there, 25 as well under Delaney. 0060 1 Delaney was the -- the most recent case -- Oregon 2 Supreme Court case that said, generally, we would require a 3 special relationship in these cases. 4 My colleagues, here, cited to you the Kramer case, 5 where no special relationship was discussed, for the -- 6 responding to us, saying, we don't have to have a special 7 relationship. 8 I would only point out, Delaney, I think in a footnote 9 said, you know, Yeah, Kramer did not discuss special 10 relationship. But it's probably the exception that swallows 11 the rule. So I do believe under current Oregon law, a special 12 relationship is required for that claim. 13 On the Computer Fraud and Abuse Act, your Honor -- 14 THE COURT: Um-hmm. 15 MR. GABRIEL: -- I would -- just want to make sure 16 we're all on the same page. 17 I -- you characterized your understanding of the 18 plaintiff's claim as -- that she never downloaded anything, and 19 it was not her. I suggest that the facts are, as I understood 20 the complaint, are actually even different than that, which are 21 you -- I was mis-ID'd altogether. You never touched my 22 computer. And I think there's a judicial estoppel issue here. 23 THE COURT: Yeah. I don't think we're saying anything 24 different. And I think I've communicated clearly to Mr. Lybeck 25 I don't believe you can plead a hypothetical claim. You have 0061 1 to have a factual premise to assert. You can't say if A then 2 B. You have to say, I have a good reason to think A happened, 3 and then B is the consequence. 4 And if he doesn't have that reason, he can't plead it. 5 MR. LYBECK: She doesn't, and understandably, your 6 Honor, if there is -- 7 THE COURT: I've already said that if it comes to 8 light that there's something that's just discovered, you would 9 want to seek leave to amend, to allege that. 10 MR. LYBECK: All right. I understand that. 11 MR. GABRIEL: Checking with everyone around the table, 12 your Honor, I think I've addressed the things I wanted to 13 address. I want to say I appreciate your patience with me. 14 THE COURT: And I don't mean to be sounding impatient. 15 I'm just engaged, as it were. 16 MR. GABRIEL: And we most appreciate that. 17 And so with that, I'll sit down. 18 THE COURT: Okay. Mr. Lybeck, on the special 19 relationship for intentional infliction of emotional distress, 20 do you have any comment you want to offer? 21 MR. LYBECK: I don't. I understand that there would 22 be an opportunity, your Honor, for us to contemplate that, as 23 well as your Honor's comments in an attempt to replead. And 24 that's what we intend to do. 25 THE COURT: Well, when I -- I will look into that. 0062 1 I will resolve for myself whether I think a special 2 relationship is currently required under Oregon law, and I'll 3 give you that guidance in an order. 4 MR. LYBECK: Thank you for that. 5 There is a difference that Mr. Gabriel pointed out in 6 some of the case law. 7 THE COURT: Um-hmm. 8 MR. GABRIEL: Your Honor, for ease, it occurred to me, 9 I have copies of the Baltimore Scrap and Freeman cases -- 10 THE COURT: If you have them handy, go ahead and hand 11 them up. It will save our -- another tree. 12 MR. GABRIEL: I'll give one to Mr. Lybeck, as well. 13 MR. LYBECK: Thank you. 14 THE COURT: Okay. I'm going to need a little bit of 15 time to finish my mental processing and to issue an order. 16 It's only going to be an order. It won't be a 17 discussion of law, simply because I don't think it's a good use 18 of my time or yours, given what we've been through today. 19 But the order ultimately will grant in -- the Motion 20 to Dismiss with prej -- prejudice as to Claim 12. That is to 21 say, without leave to replead, as to Claim 12. And grant it as 22 to all of the other claims with leave to replead, consistent 23 with the guidance I've given Mr. Lybeck on the record and what 24 I set out in the order. 25 I'm very much looking to an amended pleading that sets 0063 1 forth, consistent with Rule 8, a plain-and-concise statement of 2 the facts separately stated, claim to claim, with a minimal 3 amount of incorporating by reference, so that it's clear that 4 when we have these attacks, we -- we've got the elemental 5 structure in place. 6 And that with respect to any effort to plead fraud or 7 RICO violations again, Rule 9B is explicitly met. 8 And with respect to allegations of invasion of privacy 9 and libel and slander, there is a specification of the actual 10 statements said to be libelous or invasive of privacy, the 11 timing -- the -- who disclosed, how they were disclosed and 12 published. Because that's what's required, so that we can get 13 to where we are. 14 Now, assuming I can get an order out in a couple of 15 weeks, because I have a few things ahead of you right now. But 16 you already know generally where it's headed, so you shouldn't 17 wait, necessarily, to get started, Mr. Lybeck. But you should 18 wait until you get it before you file your amended pleading. 19 How much time do you think you would want to file an 20 amended pleading? 21 MR. LYBECK: I would ask, based on my personal 22 schedule, since I will be out of state next week, in part, I 23 would also like to ask the court reporter for a transcript of 24 your Honor's guidance in this hearing, ask for 30 days to file 25 that pleading. 0064 1 THE COURT: Okay. Friday, March 14, the second 2 amended complaint will be due. 3 Then I would like the parties to confer and to give 4 me, by Monday, April 7, a joint written recommendation which 5 outlines some benchmarks going forward. 6 I will keep it that general, including, hopefully, an 7 agreed -- an agreed approach and suggestions for timelines to 8 accomplish it. 9 But where you can't agree, that sets out your 10 respective alternative approaches. This is in the nature of a 11 Rule 16 report, that just sort of gives me your joint plan. 12 MR. LYBECK: Great. 13 THE COURT: If you agree that it would be efficient to 14 get these immunity issues litigated and out of the way, and it 15 only takes a small amount of discovery to get to them, lay out 16 what you think should happen. If you think a different 17 approach makes more sense, lay that out. 18 And then once I have it and can think about it, I'll 19 contact you and we'll have a conference. And those of you who 20 are from elsewhere, which seems to me most of you, can 21 participate by phone. Please don't think you have to 22 physically travel here or incur that expense to be here. We 23 can do a lot of management things by telephone. And then we'll 24 see where it leads. 25 I suppose I should not overlook what is always sage 0065 1 advice, and that is the opportunity to resolve the -- this case 2 and your other case continues to remain in your hands. 3 If any of you thought it would be useful to engage a 4 neutral and you wanted some help to find that kind of person, 5 all you need do is ask, but I'm not going to be harping on you 6 about settling. 7 My job is to deal with what you've given me, and you 8 have enough judges involved in your life right now regarding 9 these controversies. So I'm simply going to move forward, 10 responsive to what you provide to me. And if you want help in 11 any other way, whether it's related to settlement or other 12 management issues, just let us know. All you need to do is 13 contact Mr. Minetto. We'll get on the telephone, and try to 14 sort through whatever the problem might be and come up with a 15 meaningful way to approach it. But -- 16 MR. LYBECK: Your Honor, on behalf of plaintiff, we 17 would make that request, understanding that it might not be 18 productive -- 19 THE COURT: Well, what I want is -- I will -- I will 20 go ask somebody to help you, if all of you want to do it. I'm 21 not inviting any forced effort here. 22 But you also know how to do it. You can just pick up 23 the phone. In this district you don't need permission to call 24 another judge or to do something. You just do what you want. 25 But there are a number of people who could be helpful 0066 1 to you. I suspect Judge Leavy might be a very good source of 2 some sage and practical advice, and somebody who could help you 3 try to get to where you're going. 4 I couldn't help but notice that your litigation 5 continues in Case 1 over attorney fees, and all of that, and 6 that's just going to -- that's just going to continue to 7 continue. 8 I -- based on today's argument, I can envision that 9 the plaintiffs from case 1 will appeal the orders entered 10 there, that ultimately become final relative to the permission 11 to dismiss without prejudice and to refile. And that that 12 could impact how this case goes, and it goes on forever. That 13 the money that will be spent trying to get to some kind of 14 legal resolution is daunting. So I'm -- that said, if you want 15 help, both of you -- both sides, let me know. 16 But you know where to go. You know how to make this 17 happen. And I appreciate what you've done to clarify your 18 circumstances now. I'll do what I can do, and get an order out 19 to you reasonably quickly. And I'm sure the court reporter's 20 transcript will also be helpful. 21 I'll -- I'll indicate in the order that I intend to 22 defer all issues relative to class -- the class allegations and 23 class certification until further order. 24 And that leaves you focused primarily on 25 Ms. Andersen's pleadings and how to approach it and your case 0067 1 management report or your suggested schedule of how we go 2 forward ought to at least acknowledge that the class action 3 issues are there. And then will need to be addressed in some 4 fashion, in some way. All right? 5 Go in peace. 6 MR. LYBECK: Thank you, your Honor. 7 MR. GABRIEL: Thank you, your Honor. 8 (Conclusion of proceedings.) 9 10 -0- 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0068 1 2 --oOo-- 3 4 I certify, by signing below, that the foregoing is a correct 5 transcript of the oral proceedings had in the above-entitled 6 matter this 19th day of February, 2008. 7 8 ____________________________________ 9 AMANDA M. LeGORE, RDR, CRR, FCRR, CE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25