|status of The suit by PADI against Diverlink|
Posted by on August 18, 2005 at 17:42:33:|
In Reply to: here is some background posted by Chris on August 18, 2005 at 15:15:23:
most recent update Mon, 25 Jul 2005 20:50:37 GMT.
It did, however, file an appeal, which it has little chance of winning
First, PADI was sanctioned by the U.S. District Court for the Middle District of Florida. A third party witness (a Floridian and the author of the article PADI sued over) was awarded attorneys fees as sanctions against PADI by the Florida court.
The final blow to PADI came when Judge Gary L. Taylor (a federal judge in California) granted Diverlink's special motion to strike PADI's complaint. "As the prevailing party, defendant is entitiled to attorney's fees and cost of suit, and may submit a fees motion to the court to support its request."
This means that Diverlink prevailed on its Anti-SLAPP motion. California's Anti-SLAPP law prohibits suits brought to silence legitmate public debate by using the legal system for intimidation. The sanction is paying the defendant's costs and attorneys fees. That means PADI will now have to pay Diverlink's costs and attorney fees.
See Diverlink.com/suit/davidvgoliath.htm>David 2, Goliath 0
DivePartner1, a litigation attorney, had this to say prior to the ruling:
In a sideshow to its case against Diverlink, a third party witness was awarded attorneys fees as sanctions against PADI by a Florida court. The witness was a Floridian, so this spanking was conducted by the U.S. District Court for the Middle District of Florida.
The documents posted on PACER indicate that PADI served the third party with a subpoena for documents in an attempt to survive the anti-SLAPP motion they’re fighting in California. Fair enough. In response to the subpoena, the witness showed up with the documents at the time and place commanded. Inexplicably, PADI and its lawyers "failed to appear for the subpoena it issued." The witness waited a bit, then went back to work. The witness had done everything required by the subpoena.
After realizing that they missed their chance, PADI’s lawyer continued to demand the documents but failed to be troubled to simply issue a new subpoena-and this time to actually show up. That would have been the low cost-and proper-solution to their self-inflicted injury. Instead, they asked the court to have the witness held in contempt of court failing to re-produce the documents at their convenience. In response, the third party filed a cross motion for sanctions demanding attorneys fees.
The court awarded not only costs but legal fees as a sanction for PADI’s behavior. This is unusual. Lawyers have to pretty much behave like complete miscreants to earn this kind of sanction in the U.S. The judge reminded PADI’s lawyers that they have a duty under the federal rules to minimize the burden on non-party witnesses, not exacerbate it as they were doing here.
Still missing the message, PADI’s lawyer continued to file shrill pleadings challenging the award of fees that would not have been incurred but for PADI’s belligerence following their own neglect. But this all appears to be of no avail. On July 11, the court issued an order asking the witness to clarify the fee request, which is currently between around $7000 to $8000.
Read more posts on the subject at another forum here
California Code of Civil Procedure Sec. 425.16. Claim Arising from Person's Exercise of Constitutional Right of Petition or Free Speech -- Special Motion to Strike.
425.16. (a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
(c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
(d) This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.
(e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
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