Lowering the Bar

Ninth Circuit Applies "Slubby Mass" Rule to Dismiss Appeal

On November 29, the Ninth Circuit again applied the Slubby Mass Rule to reject an appellant's brief and dismiss the appeal.  In case you did not learn this one in law school, this rule provides that any pleading presented to an appellate court that constitutes "a slubby mass of words rather than a true brief" will be rejected.  See, e.g., N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997).  The Slubby Mass Rule is apparently a corollary to Federal Rule of Appellate Procedure 28, which governs briefing requirements, and the corresponding Ninth Circuit rules.

The court was considering the appellant's brief in Sekiya v. Gates, a disability-discrimination case originally filed in Hawaii.  And that seems to have been about all the court could glean about the case from Sekiya's brief, which:

• made "virtually no legal arguments" (not a good start);
• did not state the applicable standard of review;
• did not include a table of contents;
• did not include a table of authorities -- not that surprising since it
• did not cite any authority;
• did not include accurate citations to the record; and
• didn't explain why Sekiya thought she should win.  (She did say she "disagree[d]" with the lower court's ruling, but the court was looking for something more.)

Each of those violates a specific part of FRAP 28, but the court also invoked the Slubby Mass Rule.  In the N/S Corp. case, in which the Rule was developed, the Ninth Circuit declared that "[i]n order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief."  N/S Corp., 127 F.3d at 1146 ("the violations are legion); see also id. ("Enough is enough").  The rule was next applied five years later.  See In re O'Brien, 312 F.3d 1135, 1136-37 (9th Cir. 2002) (declaring brief "inadequate" and partly "unintelligible").  In all three cases the court proceeded to address the merits of the case, to the extent it could tell what they were, but ruled against the appellant anyway.  It published its opinions "as a reminder that [crappy legal work] undermine[s] the administration of justice and cannot be tolerated."

The remaining question you may have is "what the hell does 'slubby' mean?"  And you are right to ask.  The only other report I've seen try to answer this question first speculated that "slubby" was a combination of "sloppy" and "stubby," but found through further research that a "slub" is a "lump or thick place in yarn or thread."  The only problem with these definitions is that they make no sense.  Since you read Lowering the Bar, you don't need to bother with that pointless trivia because here you get accurate pointless trivia.  A "slub" is also defined as "thick sludgy mud; mire, ooze," as in:

1610 W. FOLKINGHAM Art of Survey I. x. 24 Ouer-flowing them with Fords or Land-flouds, affording a fatte and slimie substance or slubbe.

Similarly, something that is "slubby" is "muddy; sticky or slippery with mud."  So, a "slubby mass of words" is a thick, muddy, sludgy, fatte, slimie mass of words that is difficult to trudge through and instead should be avoided; for if one is on the "slub . . . his situation is not to be envied."

Link: "Slub, n.," Oxford English Dictionary Online
Link: Sekiya v. Gates, 2007 WL 4198172 (9th Cir. Nov. 29, 2007).

Government Matches O'Melveny's 239-Page Tome

About a month ago I mocked Jeff Skilling's appellate team, not for the quality of what they said to the court but because it took them 239 pages to say it.  (I enjoyed the fact that the word count made the brief roughly half the length of Huckleberry Finn.)  Today it was reported that prosecutors managed to nearly match the titanic output of the wordsmiths at O'Melveny.

The government's brief is just 218 pages long, according to its numbering, although if you count up all the tables and everything it comes out to 238 pages, a remarkable coincidence.  But this probably overstates the size of the brief, since the word-count certificate says that the brief weighs in at a puny 49,830 words, a full 9,000 fewer than the defense used.

Link: Washington Post
Link: Wall Street Journal Law Blog

Judge Pearson Appeals in Lost-Pants Case

The Legal Times reported today that Judge Roy Pearson, who lost a bench trial in June in his $54 million lost-pants lawsuit against Custom Cleaners, has appealed.

Pearson, who shed actual tears during the trial and yet seems to have garnered no sympathy, filed on Tuesday with the D.C. Court of Appeals despite the fact that the defendants withdrew their pending motion for attorney fees.  The Chung family said it had been forced to spend $82,000 in fees to defend against Pearson's claims, but in an effort to "extend an olive branch" -- and probably also because they have already collected nearly $100,000 via fundraisers and donations -- they withdrew their fee motion on Monday.  Pearson appealed anyway.

He will lose.  But not for a while -- the Legal Times noted that the average overall time necessary to resolve an appeal to the D.C. court is 575 days, so Pearson will be entertaining the world for at least another year, and of course could still appeal to the U.S. Supreme Court.  And I wouldn't rule out the International Court of Justice after that.  All for a case that really belonged before Judge Wapner, if anywhere at all.

Chris Manning, the Chungs' attorney, said yesterday that Pearson had chosen "desperate irrationality over common sense" in deciding to appeal.  I feel sorry for his clients, of course, but you know, if people didn't choose desperate irrationality over common sense on a fairly regular basis, I wouldn't have nearly as much to write about.

Link: Law.com

Architect Pursues Rival Beyond the Grave

According to a report on Monday, a Pennsylvania architect challenging the license of a rival architect recently appealed his case to the state's highest court.  This means Mark Altman is still trying to get Michael Molnar's license revoked even though Molnar is not likely to be doing any more architecting, given that he died in May.

Neither report I found on this case explained exactly how this dispute got started.  Molnar seems to have worked briefly for Altman's father decades ago, becoming licensed here in 1960 after fleeing the Soviet invasion of Hungary.  He said he had studied architecture in his home country but had been unfairly denied a license by the communist regime.  The state examiner accepted his testimony, and Molnar got a license and then practiced without incident for 46 years.

But at some point Mark Altman, still suspicious, and really pissed about something, followed Molnar's trail to Budapest and found that the college there had no records of him.  He challenged Molnar's license, but it appears that the state board again accepted Molnar's testimony that he had earned his degree and that the Communists had lost the records.  That was affirmed on appeal.

Altman's counsel (his brother Gary) said that their family still believed that Molnar had lied, and was stunned by the result.  He said, "You mean, if I'm a brain surgeon for 50 years, and after all these years they learn I'm an auto mechanic, I still can keep operating?  That's fascinating to me."  Well, if an auto mechanic has successfully done brain surgery for 50 years, then yes, I think I might rather have him working on me as opposed to some brand-new guy who happens to have a license.  I might ask him what the jumper cables were for, but I'd be prepared to listen.  Oh, also, Mr. Molnar can't keep operating now because he's DEAD.

And, again, neither report I found explained exactly why the Altmans were still going after Molnar's license now that he is an ex-architect.  No one else seemed to know, either.  "If the goal of the litigation is to stop Mike Molnar from practicing architecture, the good Lord has done that," a local attorney was quoted as saying.

Largely for that reason, the attorney for Molnar's estate has filed a motion to dismiss the appeal as moot.  "Petitioner is, it seems, motivated by some unexplained quest for revenge that he simply cannot end," wrote Robert Hoffman.  He called  Altman "heartless" for suggesting that, if Molnar's license wasn't valid in the first place, the estate should give back all the fees he ever collected, which would likely be unpleasant for Molnar's widow.  Hoffman compared the complaint to "Inspector Javert's hunting of Jean Valjean in Victor Hugo's 'Les Miserables,'" which, translated, seems to be something like how Magneto won't leave the X-Men alone.

Link: CBS News
Link: Pittsburgh Tribune-Review

German Man's Pole-Sitting Appeal Is Unsuccessful

Reuters News reported today that a German man had ended his ten-day protest of a fraud conviction by coming down out of a treehouse-like box that he had built on top of a 72-foot-tall pole.  As the report put it, Fred Gregor, 45, "was bidding to have his 15-month conviction for fraud overturned by squatting in his tiny cubicle atop a converted television mast."

I don't have any experience with European law, but it seems their requirements for appeal are fairly difficult to meet.  In the US, we would just file a motion for new trial or a notice of appeal.  I suppose that does tend to involve squatting in a tiny cubicle at least for some period of time, but we don't have to build it ourselves.

It's not clear why Gregor thought his pole squat would convince the court or anyone else that his conviction should be overturned, but he told Reuters in a phone interview last week that he would not come down until he got a new trial.  The phone was likely hoisted up in the same bucket that his wife was using to send his meals up, which is the same bucket that she ultimately used to end his futile protest today.  Gregor's wife, a 25-year-old former stripper (and mother of their five children), sent up a topless picture of herself in Gregor's lunch box in an effort to encourage him to come down.  He did.

Link: Reuters via Yahoo! News.

Court of Appeal Hears Case of The Taster's Choice Guy's Face

Yesterday I argued an appeal in California's Court of Appeal for the Second District, which covers Los Angeles, and I was just getting ready to leave after the argument when they called the next case, Christoff v. Nestle USA. That stopped me in my tracks because I recognized that case from one of my previous reports.  Here's what I wrote about it in February 2005:

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How to Turn a $250 Job Into $15.6 Million

Sue in L.A. County, that's how. In the latest (relatively) monstrous verdict from that jurisdiction, an L.A. jury awarded Russell Christoff $15.6 million dollars for the unauthorized use of his face on Taster's Choice jars for seven years. Christoff had been paid $250 for a photo shoot in 1986 but did not know Nestle had actually used his likeness until he saw himself on a jar in a drug store in 2002. "I looked at it and said, 'expletive, that's me!'" he recalled.

I hope he really does go around saying, "expletive!" but I bet he doesn't.

Lawyers for Nestle claimed that a Canadian employee of the company had unknowingly pulled the photo, thinking they had consent to use it, and that Nestle USA had brought it back to the States in 1997. The amount of damages was likely the only issue in the case. Christoff was paid $250 and was promised $2000 if the image were used in Canada, as it eventually was. The company offered him $100,000 to settle, to which he countered with $8.5 million. The jury's $15.6 million verdict apparently represents 5 percent of Nestle's entire profits from Taster's Choice while Christoff's face was on the jars, which certainly seems like a reasonable valuation to me.

Oddly, Nestle's lawyers said the company plans to appeal.

AP via SFGate.com

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Nestle did appeal, and I would like to thank the Court for scheduling the oral argument to coincide with my case. "Expletive, that's the case I wrote about!" I said to myself. I stayed to take careful notes (on my own time, of course). Mr. Christoff and his whole family were there in the courtroom, so it promised to be entertaining.

I was wrong that the amount of damages was the only issue in the case. It was an issue, certainly, but the main issue on appeal was whether the statute of limitations barred Christoff's claim even though there was no evidence he had any idea that his face was being used. (He had moved to Canada by the time he unknowingly became the Taster's Choice Guy for millions of Americans.) I think the argument was that the "single-publication rule" that applies in defamation cases would have barred Christoff's claim, but to be honest I was paying closer attention to trying to figure out which guy in the audience was Christoff, and more importantly which of the female heirs to the $15.6 million Taster's-Choice-Guy fortune might be single.

The Christoff extended family group was easy to pick out. Most of them were female, and of the men one was too old, one was too young, and the two in the back were way too ugly. That left just one guy, who did turn out to be Christoff as I later confirmed by digging up the picture below.

As you can see, Christoff now looks something like the guy who played J. Peterman on "Seinfeld," but back when he was looking for coffee-jar modeling jobs he looked something like a cross between Mandy Patinkin and Ricardo Montalban. The perfect man to become the new "Taster," as the company apparently refers to whoever is on their label. It seems that Nestle argued in part that Christoff was not entitled to damages (or only to a smaller amount) because it had really not used his own personal image, but rather had incorporated his face into what it called the "icon" of the Taster's Choice Taster.  ("Taster" doesn't seem accurate if only because the guy on the label is not in fact tasting, just gazing sensually at the coffee in the cup that he has been denied for so long, but is hoping, even longing, to taste sometime very, very soon. But I guess they have to call him something.) Justice Cooper wanted to know why Christoff should be entitled to all of the profits earned during the time his face was used, as opposed to whatever profits might have been attributable to the use of his own face. Presumably, that would be a much smaller amount, although Justice Cooper pointed out (several times) that she did of course think The Taster was a very attractive man.

Frankly, the debate over the single-publication rule in this context, while probably very important especially in Los Angeles, was less interesting to me than the various examples of celebrity-likeness cases or hypothetical cases that everybody kept mentioning.  I kept a list of celebrities mentioned:

• Bela Lugosi
• Arnold Schwarzenneger
• Lance Armstrong
• Ronald Reagan
• Walt Disney
• Aunt Jemima
• "a KISS band member" (unidentified)

The most comical thing I learned from the argument was that not only did Nestle use Christoff's face without express permission on millions of coffee jars in the U.S., they also apparently used it in other countries, and actually tinkered with his appearance to make it more palatable.  According to Justice Cooper, when they used his image in Mexico "they made it darker and gave him sideburns."

Link: AP via SFGate.com (coverage of the verdict in 2005)

Case Least Likely to Be Successful on Appeal to the Ninth Circuit

One called Ignacio v. Judges of the United States Court of Appeals for the Ninth Circuit.

If you really need a reason, it's something called "the rule of necessity."  As in, if you sue all the judges in the court and then say they all have to recuse themselves from the case because they are parties, it is necessary for you to lose.

Link:  Ignacio v. JUSCANC et al., No. 03-17181 (9th Cir. July 12, 2006).