I sued Source Lending corporation some time ago for junk faxes; the case has been pled as a class, on behalf of all the people who received junk faxes from source lending. They have been playing games, ignoring phone calls, and making ludicrous demands (they wanted me to indemnify them against all possible future junk fax cases at one point!) for quite some time; it’s been almost two years since they decided to completely blow off a scheduled deposition, and to this day, we have received no substantive answers to most of our discovery requests.
We received a “reply memorandum” from Defendant’s law clerk today. This is in response to a response to a hilariously badly-written memo they previously filed in this case. They are attempting to argue that, under various legal fictions (and just plain fictions), it is impossible for me to sue them because someone else already did.
The essence of their defense is that a serial killer should only be tried for a single murder, because any other case has the same essential facts (killer, method of killing, and the question of whether the victim actually died), and it would thus be double jeopardy. (In civil cases, this is called res judicata.)
A few comments are perhaps in order.
About That Summary
In this section, they start with a baldfaced lie. "Plaintiff, through his counsel Steven Appelget, is attempting to leverage a single alleged transmission of a fax into a class action." In fact, not only did they send me two faxes, but another person (the one who already sued them) also received one of their unsolicted faxes. Given the number of times they stress that the other case (ELIDE v. Source Lending) has already been settled, they can hardly pretend ignorance of it.Section I: Argument
This optimistically-named section makes a number of interesting claims. The most significant is the assertion that I am, in fact, Robert ELIDE, the other person I know who has sued them over their junk faxes. The "argument" is that, since Mr. ELIDE's fax was similar to the first one I received, a settlement of that case settles this one. This is insultingly bad. First off, given that they were active in settlement negotiations with both myself and Mr. ELIDE at the same time, it seems reasonable to assert that they were aware of both cases at once. They continued to discuss settlement terms with me after settling with ELIDE; obviously, they felt there was something left to settle.The section describing the factual circumstances is elegantly disingenuous. I quote:
Seebach's claim that ELIDE received his fax three hours later distinguishes the two without creating a legally substantive difference, changing only the timing of the injury, not the facts required to prove it.Compare this with the hypothetical defense in Conan v. Extras:
Dark Tower Guard \#2's claim that Dark Tower Guard \#1 was decapitated three minutes earlier distinguishes the two alleged incidents without creating a legally substantive difference, changing only the timing of the injury, not the facts required to prove it.You may think that this is as bad as it gets. Not so! Not so! They then proceed to assert that I am "in privity" with Mr. ELIDE, which is to say, that we should be seen as the same legal entity for the purposes of this case. A good example of privity would be a legal claim made by an individual, and a claim for the same injury made by the executor of that individual's estate. A bad example would be some guy and some other guy he met a couple of times who happens to have the same attorney. Privity refers to people whose interests are so similar that they have the same legal rights; not equivalent rights (as each person has an equivalent right to free speech) but the same instance of a right, as with perhaps the joint owners of a car, who could not reasonably each separately bring a suit seeking damages after the car were damaged in an accident.
They begin by asserting that I could have easily merged my action with the ELIDE action. ELIDE initiated his action, pro se, at a time when I was still trying to figure out which faxes had been sent by which entities. When Source’s surrealistic approach to litigation became unmanageable, Mr. ELIDE retained Mr. Appelget to represent him. In September of 2003, we managed to identify that two of my faxes were sent by Source Lending, and Mr. Appelget commenced suit against them on my behalf.
In fact, by the time I knew I had a claim against Source Lending, Mr. ELIDE’s case was already well established. We did attempt to do some joint discovery; for instance, the scheduled deposition which Source Lending unlawfully simply decided not to show up for was to be a joint deposition, based on the substantial overlap of relevant facts such as the identity of the fax blaster Source used, the number of faxes sent, and so on. This does not reflect commonality of issues such as “was this particular fax number on their list” (as Mr. ELIDE and I had, and have, different fax numbers).
It may have been theoretically possible that I could have joined the ELIDE action. However, since I received two faxes, and Mr. ELIDE only one, there would have been substantial differences between the facts at issue.
More significantly, Mr. ELIDE and I did not have overlapping interests. His interest in junk fax cases has been primarily financial; he has been damaged and wishes to recover those damages. Mine is primarily rooted in eliminating the practice of junk faxing; while I do collect the bounty Congress established for junk faxes, I give the money away. Mr. ELIDE is primarily interested in defending his own interests; he demands that defendants remove him from their fax lists, and not fax him anymore. I have consistently requested (and thus far, always gotten) blanket commitments to cease unsolicited faxing, and requested injunctive relief from the court that would protect everybody. My case is pled as a class because I do not feel that eliminating one hundredth of one percent of Source Lending’s unlawful activities provides a sufficient social benefit to justify the time I have to waste dealing with their parody of legal work.
The claim that the “threat of collusion is a distinct possibility” is laughable. Their argument, such as it is, is:
Far less likely is the idea that two men with similar altruistic designs have accidentally found themselves suing the same companies with the same attorney.No one would have made such a ludicrous claim. Mr. ELIDE was the person who referred me to the only lawyer I have yet found whose consumer protection practice includes TCPA actions; it is hardly an accident that we are using the same attorney. Source Lending sent faxes to numerous people; it is hardly an accident that multiple parties would sue Source, instead of each picking a different target for their suit. Furthermore, I don't recall anyone accusing Mr. ELIDE of "altruistic designs". (Not that this matters; the law is not written in terms of altruism, but in terms of a blanket prohibition of unsolicted facsimile advertising.)
Ironically, their citation to Judge Leung’s reference to the earlier court holding in ELIDE v. MCU dispels any notion of privity; we find that a court already considered a Seebach junk fax case while aware that a ELIDE junk fax case against the same Defendant had already been decided by another court after a trial at which I testified. When considering the second case, Judge Leung awarded judgment for the Plaintiff, that being me.
Section II: Actions without class
In Section 2, Source asserts that their willful obstructionism towards any discussion of their use of a fax blaster is somehow my fault. Source asserts that the number of plaintiffs in this case clearly falls below the requirement of impracticability of joinder. In fact, strictly speaking, I don't even think joinder is possible for a single plaintiff. However, the size of the class is simply unknown to us; all we can do is assume that, like any other faxer, they presumably hit tens of thousands of fax machines. This creates a class of tens of thousands of people, certainly making joinder impracticable. Worse, because Source has made it clear that they have no idea to whom their faxes were sent, there isn't even a way to reach these people. The only fair alternative is to try the case as a class, seeking injunctive relief on behalf of the class members.Source’s tangle of mutually-exclusive excuses is at its finest here. Source has never responded substantively to relevant discovery requests, but now seeks to have the lack of details about the class used as a basis for not certifying the class. They assert that I should have done discovery. Indeed! In the last two years (or close to it), Source has received interrogatories, requests for admission, and been the subject of a scheduled deposition. Their responses to this have been dismissive at best, and they have insisted that it is not up to them to identify the fax blaster they hired to send their faxes, nor to disclose any details of that business relationship.
How, one wonders, am I supposed to proceed with discovery? I should presumably identify the parties most capable of disclosing the information, and request it from them. I have done precisely this; I have identified Source Lending as the most plausible source of this information, and asked them to produce it. They have refused on spurious grounds. It is my belief that they do have the ability to disclose at least some information about their junk faxing, but are aware that doing so would prove their earlier denials to be lies. This is incentive enough, it seems, to refuse to answer legally allowed discovery, and to instead make derisive comments about the quality of my discovery. I believe the poor quality of my discovery can be traced directly to my decision to select querents based on their presumed knowledge of the facts, rather than their willingness to comply with state or federal laws, the rules of civil procedure, or indeed, the laws of physics.
For additional amusement, they produced a “true and correct” copy of some entries from this blog – but in fact, the copy is full of omissions and snips, as demonstrated by the erratic page numbering and omitted paragraphs.
Comments [archived]
From: seebs_lawyer
Date: 2005-06-03 22:14:09 -0500
Hi John!
From: John
Date: 2005-06-06 20:56:31 -0500
Hey. See you bright and early tomorrow.
From: seebs_lawyer
Date: 2005-06-07 13:22:26 -0500
Too early. I hate 8:30 court dates.
Now we get to wait and wait and wait.
From: seebs_lawyer
Date: 2005-08-30 12:35:36 -0500
The Court denied Source Lending’s motion to dismiss in an order dated August 26, 2005.