Read on Twitter
So, #LawTwitter/anti-SLAPPeroos, I have a brand new (to me) frivolous SLAPP shenanigan. You may recall the New Jersey http://BrentComyack.com case, tossed out on my motion last month in a thoughtful, 78-page opinion. (thread)
Ordinarily, the route around such an opinion is an appeal: the judge made a legal call, if you think they are wrong, you appeal. Easy.
In New Jersey, there's also a very strong presumption that dismissals are without prejudice.
In New Jersey, there's also a very strong presumption that dismissals are without prejudice.
(Another reason NJ badly needs an anti-SLAPP law, but I digress).
Basically, the reasoning being: if there's a case to be had, even if you screwed it up, you should be back in the same position you were before you filed. Statutes of limitation deal with the rest.
Basically, the reasoning being: if there's a case to be had, even if you screwed it up, you should be back in the same position you were before you filed. Statutes of limitation deal with the rest.
So, much of our dismissal was *technically* without prejudice. But the Court sent plenty of signals about how well a (second) amended complaint would do:
Another interesting wrinkle of this case: one of the people everyone believes Comyack actually attempted to drug and assault -- the one with this positive drug test -- was a defendant (rep'd by other counsel) and did not move to dismiss.
SO: even though we won a dismissal, there still existed *some* case. (also worth noting: this person counter-sued for assault, etc., and that claim is live as well)
Fast-forward to last week, and this SLAPP-happy lawyer pulls a *wild* move.
Every single one of my clients appears to have targetted with a subpoena (sent directly, rather than through me, which is a DIFFERENT issue):
Every single one of my clients appears to have targetted with a subpoena (sent directly, rather than through me, which is a DIFFERENT issue):
Let's back up a second. Third-party subpoenae are great! They are a useful tool. If, for example, there is a witness who isn't a party to the case, obviously I will sometimes need a subpoena to get them to testify. And often, they help keep dishonest parties honest-ish!
BUT. Here, there are only two remaining claims in the case: a defamation claim against the person who tested positive for methadone after an evening with Brent Comyack, based on her telling her sister that fact, and an assault claim against Comyack for the same underlying fact.
So, what is the subpoena looking for? All I can come up with is, "evidence to replead the already-dismissed claims."
Remember: If not for this person remaining in the case, Comyack would have no subpoena power. And the Court has made a few things pretty clear. . .
Remember: If not for this person remaining in the case, Comyack would have no subpoena power. And the Court has made a few things pretty clear. . .
The Court had a LOT to say about the role of discovery in these kinds of cases.
And NOW, we obviously have to keep fighting in this case. You don't get to just ignore a subpoena. And although Brent Comyack's theory of defamation has been thrown out, his lawyer has found a new, frivolous way to push it: "dredging up" facts with *third-party* discovery.
At the risk of stating the obvious, this shit is expensive. My clients have already incurred some steep fees to get this nonsense (and it IS nonsense -- see below). And Comyack is essentially just getting to run up the bill.
So, we -- again -- have to ask for help raising funds. The "goal" in the fundraiser was always contemplating a long fight (appeals, etc.), but the amount we raised does not cover our fees to date. And while we planned some events, the virus happened. http://BrentComyack.com
And for those playing along at home: #antislappnow. We need, need, need federal and state anti-SLAPP legislation. Well-drafted anti-SLAPP laws address exactly this kind of game-playing, and shift the cost of this nonsense to the person responsible.
