The Corri McFadden eDrop-Off Chicago LLC Lawsuits Drag On
8 August 2013
There have been topics of greater interest to write about. For example the new Doctor for the science fiction television series Doctor Who. Or the fascinating article Space-Time Loops May Explain Black Holes. Or the latest reveal by Sony Online Entertainment about the EverQuest Next project, and the beta sign-up.
A few things have happened with the two Corri McFadden lawsuits:
- eDrop Off Chicago LLC et al v. Nancy R Burke et al
- United States District Court for the Central District of California
- Case 2:12-cv-04095-GW-FMO
- Date Filed 05/10/2012
- PDF Copy Civil Docket 05/10/2012-06/26/2013
- eDrop-Off Chicago LLC et al v. Burke et al
The case in Illinois is stayed, pending resolution of the California case.
On 20 May 2013 there was "Dominique R. Shelton's -- lead counsel for Plaintiffs eDrop-Off Chicago LLC and Corri McFadden (collectively, "Plaintiffs") -- departure from Edwards Wildman Palmer LLP". And the 14 June 2013 declarations:
There was a proceeding held on 29 July 2013, but those contents are not available to the public until later this year.
"TRANSCRIPT for proceedings held on Monday, July 29, 2013; 9:57 A.M. Court Reporter: Wil S. Wilcox, phone number 213-290-2849. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/26/2013. Redacted Transcript Deadline set for 9/5/2013. Release of Transcript Restriction set for 11/3/2013. (Wilcox, Wil) (Entered: 08/05/2013)"
We're taking a leap of faith that Corri McFadden will have legal representation before that transcript is released.
The departure of both Corri McFadden's attorneys is curious ...
FIVE DAYS EARLIER
15 May 2013
Judge George H. Wu opened the "Initial Tentative Ruling" with:
To recap, the Plaintiffs Corri McFadden and eDrop-Off Chicago LLC cause of actions are:
- First Cause of Action - Violation of the Lanham Act - Federal false Advertising, Unfair Competition, and False Designation of Origin
- Second Cause of Action - Illinois Unfair Trade Practices
- Third Cause of Action - Illinois Consumer Fraud and Deceptive Business Practices
- Fourth Cause of Action - Defamation
- Fifth Cause of Action - Trade Libel
- Sixth Cause of Action - Intentional Interference With Contractual Relations
- Seventh Cause of Action - Intentional Interference With Prospective Economic Advantage
- Eighth Cause of Action - Breach of Contract
- Ninth Cause of Action - Promissory Estoppel
- Tenth Cause of Action - Intentional Infliction of Emotional Distress
- Eleventh Cause of Action -Declaratory Relief
Judge George H. Wu proceeded to the Anti-SLAPP issue:
"A. Anti-SLAPP as to the Now-Superseded Original Complaint"
"Of course, this entire question of whether Midley should be awarded fees under California Code of Civil Procedure § 425.16(c) with respect to the initial complaint would be pointless in any respect if Midley is able to successfully demonstrate an entitlement to fees in connection with the FAC. It is to that analysis, therefore, that the Court now turns.
B. Anti-SLAPP Directed at the FAC
The first question that must be answered is whether California’s anti-SLAPP law (the only one Midley has attempted to use in its motion) would even apply to Plaintiffs’ claims. Plaintiffs argue that California’s anti-SLAPP statute does not apply to claims under federal law or to the two claims they have specifically asserted under Illinois statutory law. They also allege that the remaining state law claims – at least claims 4 through 10 – should be interpreted under Illinois law because of choice of law principles."
The abbreviation "FAC" stands for "First Amended Complaint."
Judge George H. Wu ruled:
"1. Lanham Act"
"The answer is simplest with respect to Plaintiffs’ one (or two 11) federal claim(s). Midley could not prevail on its anti-SLAPP motion insofar as Plaintiffs’ Lanham Act claim is concerned because “the anti-SLAPP statute does not apply to federal law causes of action."
"11 Claim 11 is a claim for declaratory relief in which Plaintiffs invoke the Declaratory Judgment Act, 28 U.S.C. §2201."
"2. Illinois Statutory Claims"
"the Court will not apply California’s anti-SLAPP statute to Plaintiffs’ second and third claims."
"3. Common Law Claims"
"at this point in time, the Court concludes California’s anti-SLAPP statute would apply to the common law claims Plaintiffs have advanced in the FAC."
We have a PDF copy of the 14 May 2013 Initial Tentative Ruling here.
We're loosely interpreting this ruling as, First, Second, Third Cause of Action are not subject to the California anti-SLAPP statute. Three for the Plaintiff, Corri McFadden and eDrop-Off Chicago LLC. While all other Cause of Actions are subject to the California anti-SLAPP statute. Eight for the Defendant, Midley INC.
What does this mean? According to the writers of the California anti-SLAPP statute:
"This bill states that a cause of action against a person arising out of the person's exercise of his or her constitutional rights of petition and free speech "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.
Defendants who prevail on the motion to strike are entitled to attorney fees and costs. This provision does not apply to "enforcement actions" brought by public prosecutors. Plaintiffs may be awarded attorney fees if the court determines that the special motion to strike was "frivolous" or "solely intended to cause unnecessary delay."
Upon the filing of a special motion to strike, discovery shall be stayed, unless authorized by the court."
The rough translation, Plaintiffs Corri McFadden and eDrop-Off Chicago LLC will be facing California's anti-SLAPP statute for eight cause of actions, and not the Illinois anti-SLAPP statute.
"This is a classic SLAPP suit – strategic litigation against public participation – and McFadden should have to face California's tough anti-SLAPP law, which lets defendants move to strike frivolous lawsuits and recover costs and fees if they win," said EFF Senior Staff Attorney Marcia Hofmann. "The plaintiffs set the stage by choosing to file their suit in California. The court should finish the case there as well, protecting Purseblog.com's speech rights by applying California law."
Electronic Frontier Foundation, 29 May 2012
Or the Ken White of Popehat loose translation, as applicable to California:
"you've sued me for defamation and BIFD. I file an anti-SLAPP motion. First, that stays discovery in the case — no more bleeding me dry or harassing me with depositions and document demands and third-party subpoenas. Second, once I file the motion, your die is cast as a plaintiff — even if you drop your suit at this point, I can insist on pressing forward, getting a ruling, and seeking the fees ..."
20 May 2013
FIVE DAYS LATER ...
Following this 15 May 2013 Initial Tentative Ruling, on 20 May 2013 and 14 June 2013 Corri McFadden's principle lawyers left Edwards Wildman Palmer LLP.
To be continued ...