In Elektra v. Schwartz,where Ms. Schwartz indicated that she is moving to dismiss the complaint, the RIAA took the most unusual step of reaching out to Ms. Schwartz's lawyer and asking him to help them re-draft their complaint.
Plaintiff's counsel sent the following in an email to Ms. Schwartz's lawyer:
Obviously, Plaintiffs maintain that their complaint is sufficient under Fed. R. Civ. P. 8, even in light of the Supreme Court's holding in Twombly. Nevertheless, in the interest of efficiency, we inquire as to what precisely Defendant contends is lacking from Plaintiffs' Complaint for Defendant to consider it sufficient. Perhaps Plaintiffs may be able to satisfy these alleged deficiencies and spare both parties additional and unnecessary motions practice.His response was:
Plaintiffs have no case whatsoever against Ms. Schwartz, and their case against her was frivolous in its inception. Accordingly, there are no facts they can allege that will satisfy the plausibility standard.Pressed further, he further responded:
You have shown yourself to be an extremely clever lawyer, and would no doubt have no problem whatsoever drafting an appropriate pleading had you any facts or law upon which to base such a pleading.Pressed yet again he responded finally:
The problem is that you do not have a case against Ms. Schwartz. There is, therefore, nothing you can truthfully allege that will satisfy the 'plausibility' pleading standard.
You would therefore to do well to dismiss the case with prejudice in order to avoid expanding even further yours and your clients' exposure to attorneys fees, damages, and sanctions.
For your reference, attached is a copy of the decision in Morton v. Seltzer, 336 Mont. 225, 154 P.3d 561 (2007), where a plaintiffs' law firm was held liable to the defendant for damages for conduct quite similar to your conduct in the instant case.
Also, attached are copies of Capitol v. Foster, 2007 WL 1028532 and 2007 WL 1223826, resulting in a $68,685.23 attorneys fee award against your clients based upon your firm's pursuit of a case very similar to the instant case.
You asked me to supply you with the facts you would need to prepare an amended pleading that would survive a dismissal motion. Not only do I not know of any such facts, I am certain that no such facts exist.
A copy of the entire email exchange is as follows:
September 20th-21st email exchange*
The exchange came to light when the RIAA filed an abbreviated version of the email exchange in connection with correspondence concerning Ms. Schwartz's motion for judgment on the pleadings to dismiss the complaint.
October 1, 2007, Letter of Richard L. Gabriel to Hon. David G. Trager (Re Defendant's Motion for Judgment on Pleadings)*
Exhibit A, abbreviated version of September 20th-21st email exchange*
October 1, 2007, Letter of Richard L. Gabriel to Hon. Robert M. Levy (Re Motion for Stay During Pendency of Defendant's Motion for Judgment on the Pleadings)*
Exhibit A (Letter and enclosures to Judge Trager)*
October 1, 2007, Letter of Ray Beckerman to Hon. David G. Trager (Re Defendant's Motion for Judgment on Pleadings)*
Exhibit A, Omitted September 21, 2007, 2:56 P.M., email of Ray Beckerman*
October 1, 2007, Letter of Ray Beckerman to Hon. Robert M. Levy (Re Motion for Stay During Pendency of Defendant's Motion for Judgment on the Pleadings)*
* Document published online at Internet Law & Regulation
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