• Welcome! The TrekBBS is the number one place to chat about Star Trek with like-minded fans.
    If you are not already a member then please register an account and join in the discussion!

CBS/Paramount sues to stop Axanar

Status
Not open for further replies.
Summary judgment motion for the defense is a Hail Mary/they want to preserve more stuff for an appeal. I doubt they think they will win it. But by making their own motion, they get to throw in the parts of the kitchen sink which plaintiffs will/would not.

Summary judgment motion for plaintiffs is a lot more likely although not 100% by any means. If they fail, I think it will come down to one or more of these questions:
  1. Whether fair use can be argued at all
  2. Whether willful, deliberate infringement can be argued at all
  3. Whether the estoppel argument has a prayer of ever succeeding
  4. Whether the financials can be wholly or partially excluded
  5. Whether more than one specimen of Sus scrofa domesticus can successfully and under its own power become airborne
 
jespah said:
Summary judgment motion for the defense is a Hail Mary/they want to preserve more stuff for an appeal. I doubt they think they will win it. But by making their own motion, they get to throw in the parts of the kitchen sink which plaintiffs will/would not.

Summary judgment motion for plaintiffs is a lot more likely although not 100% by any means. If they fail, I think it will come down to one or more of these questions:
  1. Whether fair use can be argued at all
  2. Whether willful, deliberate infringement can be argued at all
  3. Whether the estoppel argument has a prayer of ever succeeding
  4. Whether the financials can be wholly or partially excluded
  5. Whether more than one specimen of Sus scrofa domesticus can successfully and under its own power become airborne
Click to expand...
I love it when she speaks lawyer talk. If anyone needs me, I'll be in the Google lab looking them up.
 
jespah said:
Summary judgment motion for the defense is a Hail Mary/they want to preserve more stuff for an appeal. I doubt they think they will win it. But by making their own motion, they get to throw in the parts of the kitchen sink which plaintiffs will/would not.

Summary judgment motion for plaintiffs is a lot more likely although not 100% by any means. If they fail, I think it will come down to one or more of these questions:
  1. Whether fair use can be argued at all
  2. Whether willful, deliberate infringement can be argued at all
  3. Whether the estoppel argument has a prayer of ever succeeding
  4. Whether the financials can be wholly or partially excluded
  5. Whether more than one specimen of Sus scrofa domesticus can successfully and under its own power become airborne
Click to expand...
Thanks!! Luv the sus scrofa domesticus. Will be using this myself, thanks again. Having just this morning been in public situation where I wanted to say I don't give a rat's fat ass, but chose different and more broadly acceptable wording to show respect to the diversity of age (younglings) and background of the people there by framing it 'I don't give a rotund rodent's hind end.' I will make very good use of 'When sus scrofa domesticus can successfully and under its own power become airborne.'

Now about this "preserve more stuff for an appeal" thing.... I'm not understanding. <I'll just do the forehead slap here to get it out of the way> How does a summery judgement 'in favor'... of one side or the other... have bearing on preserving 'something' for an Appeal? Preserving what kinds of things? Somehow in my mind I seemed to think Appeal as being just another trial. So, conversely, does summary judgement of [legal words and other words I'm still muddling through] also carry some kind of exemption or block or eliminate something for use in Appeal?
 
Last edited:
ThankYouGeneR said:
Thanks!! Luv the sus scrofa domesticus. Will be using this myself, thanks again. Having just this morning been in public situation where I wanted to say I don't give a fat rat's ass, but chose different more acceptable wording to show respect to the diversity of age (younglings) and background of the people there by framing it 'I don't give a rotund rodent's hind end.' I will make very good use of 'When sus scrofa domesticus can successfully and under its own power become airborne.'

Now about this "preserve more stuff for an appeal" thing.... I'm not understanding. <I'll just do the forehead slap here to get it out of the way> How does a summery judgement 'in favor'... of one side or the other... have bearing on preserving 'something' for an Appeal? Preserving what kinds of things? Somehow in my mind I seemed to think Appeal as being just another trial. So, conversely, does summary judgement of [legal words and other words I'm still muddling through] also carry some kind of exemption or block or eliminate something for use in Appeal?
Click to expand...
Because it gives the appeals court more info on what the loosing side's arguments/issues are - and they hope the Appeals court will see more merit in said arguments (or something else in their filings) then the Judge of the court who handed down the summary judgement decision.
 
Noname Given said:
Because it gives the appeals court more info on what the loosing side's arguments/issues are - and they hope the Appeals court will see more merit in said arguments (or something else in their filings) then the Judge of the court who handed down the summary judgement decision.
Click to expand...
So, and correct me if I'm wrong here, if something does 'not' get preserved the Appeals court isn't permitted to hear the argument?


EDIT: So now I'm reading How to Preserve the Record to Win at Trial or on Appeal & Preserving The Record For Appeal: Top Ten Mistakes & A Primer on Preserving Objections and Arguments for Appeal in Federal Court and finding my eyes crossing as I'm trying to understand what I'm reading.

Preserving has to do somehow with getting something detailed in the written record? Which, it seems, has to be specifically requested? And the detail might also 'need' to include the judge's detailed reasoning for coming to one decision or another rather than just the decision itself? Which also has to be requested because that isn't automatically done? And therefore an Appellant Court would not have the information the Plaintiff or defendant needs to prove the rightful need to be allowed to appeal?

Is this 'preserving' directly related to getting everything the Plaintiff/defendant needs, in sufficient detail, in the record of the whole thing, to successfully sway the Appellant Court that there is (or conversely, is not) merit in giving this case another round at trial?


EDIT AGAIN: The Three Stages of Issue Preservation
Ohhhh. The Court of Appeals is where a plaintiff or defendant gets 'Permission' to take it back to trial! Okay, I thought Appeal 'was' the trial. And it is what is/is not 'preserved' in detail in the record, in the way Appeals Court deems appropriate, of the whole thing that gives the Court of Appeals enough information to make a decision the various sides, in this case the defendant, needs to get permission for it to be retried. Right? And in this case, in the requests for summary judgment is where the attorneys get to double down in getting all the information they want, in the detail they think best benefits them, in the record.

= Preserved

Right?
 
Last edited:
Mostly. Except it's not re-tried because there has yet to be an actual trial. A successful appeal would only find that the district court judge made some kind of mistake that prevented the case from legitimately going to trial. Therefore, the appellate court decision would either uphold the summary judgement or send the case back to district court for a jury to decide the facts of the case.
 
An appeal is not a trial. Here's the deal with appeals practice.
  • The appellate court can only rule on whatever they have in front of them. They didn't go to the trial, so if something doesn't make it into the record, it's as if it does not exist. If there is an s/j motion, either granted or denied, and it's appealed, then @carlosp is right, that there hasn't been a trial yet.
  • A question of fact cannot be appealed. Your single bite of the apple is the trial. Appeals are for questions of law. FYI if the appellate court thinks there are factual issues, they will remand a case for a retrial (or a first trial) to settle any factual questions. But the appeals court does not decide that.
  • However, it can appear murky to laymen as we see, for example, what the press refers to as a "civil rights appeal" for people in jail or the like. Those aren't factual appeals; they are appeals based upon claims of civil rights violations in arrests and/or jailings which the detainee claims are (say it with me, folks) questions of law.
  • In the Axa case, if s/j is denied and the denial of the motion (either side's, BTW) goes to appeal, then all the appeals court (Ninth Circuit, yo') has got is pretty close to what we have been seeing. E. g. the stuff filed with the court. Plus they'll (most likely) get the full deposition transcripts and the (maybe) full financials. They won't get the social media postings unless those are sitting in the record somehow.
  • The appeal will probably (if we get that far) be handled by a judicial panel.
  • If it needs to be appealed, then we are talking about the Ninth Circuit, en banc (e. g. all of 'em).
  • After that, the only appeal left is to the US Supreme Court. Spoiler Alert: this case will not get certiorari. Certiorari is rare and it is generally reserved for major legal questions (e. g. "separate but equal schools") or conflicts from state to state.
 
Noname Given said:
Because it gives the appeals court.......
Click to expand...

carlosp said:
Mostly. Except it's not re-tried......
Click to expand...

jespah said:
An appeal is not a trial......
Click to expand...
(First off - how do I do that function of addressing someone with the @ symbol like you guys do?)


Okay, let me see if I've now gotten this straight.
-The lawsuit is filed
-The defendant (as per him) keeps offering from day one a settlement he hopes the Plaintiffs will accept.
-The Plaintiffs keep turning down those particular offers
-The judge says 'get your butts in gear and get this settled because of clogging up the courts'
-Settlement talks officially underway
-Settlement goes nowhere. Nobody's agreeing to what the other is offering
-The judge sets a(some?) date(s) and says 'SETTLE this'
-Days come and go. Dates come and go. Nobody's agreeing on a settlement
-The defendant alludes to Appeal being where this is settled (which is in fact a trial)
-The judge is getting pissed off at both sides (I guess) and says 'SETTLE THIS, DAMN IT'
-Both sides dig in their heels and give the appearance of 'My way or it's Trial'​

-Both sides now request a Summary Judgment, some kind of a ruling on the case, which can end up being a total or partial ruling about things not in dispute anymore. Right? And the attorneys start getting their ducks in a row by getting lots of detail Preserved in the summary. Spelling out each side's POV, why, how the judge came to his ruling. Which can be used (either side depending on the ruling) to appeal the ruling

-Then the judge rules on the case
-If it's only a partial summary judgement on the now non-disputed things the litigants then go to Jury Trial anyway to get a ruling on the parts still being contested
-If it's a full summary judgment that makes it a Case Over with the Summary Judgment
Right?

-Then one side or the other gets to take the Summary Judgment with all the Preserved information in it to the Court of Appeals and say 'See what happened there! That was wrong! This ruling is worthy of dispute!'
-Court of Appeals makes a judgment call on the Summary Judgment and rules for or against the merit of an appeal​

-For, therefore permission to appeal = back to the original place and go to Jury Trial

-Against, therefore no permission to appeal = that litigant can then take the appeal 'request' to the next higher court
-Where the higher court can also rule to uphold the Summary Judgment
= Too bad, end of line for appealing to them for permission
-The litigant could, possibly?, then appeal to a higher court (The highest court?) and ask again​
(I 'think' they're in the stratosphere of appellate courts by that time. ?? Might get thrown out before being heard, might get ruled against there, might get permission to appeal there and they get to take it to trial after all)
--or--
-The first higher court can say 'Yeah, you have a case to overturn the ruling. Go for it
-Then it's back to the original place and go to Jury Trial​

-Then that trial happens and has a ruling
-And said ruling can now be disputed by seeking an appeal
-So back to the Court of Appeals again and another ruling on to appeal the trial
-If they rule against another appeal = they appeal to a higher court
-If the higher Appeal Court overturns the ruling they can go at it again
-If the higher Appeal Court rules against appeal = too bad, end of the line = ?appeal to the higher court?​
All the while they can still continue a bunch of out of court negotiations for possible settlement before the (each) trial goes to judgment.

Repeat parts or everything above until some court or another says 'We Have Had Enough! There will be no more appeals! Give it up and move on already!'

Am I getting this right?​
 
Last edited:
Lane brings up this ridiculous cookie metaphor. Well, let's put it a little more in line with what's really happening here: What happens when Johnny does in fact steal the cookie from Mary, brags about it to everyone he knows, he makes videos of stealing the cookies, shows them to everyone he knows and continues to steal cookies from Mary even when the cookie baker warns Johnny against stealing more cookies, suggesting if Johnny doesn't stop, he may end up going to time out?

That's Axanar.
 
Last edited:
Status
Not open for further replies.
If you are not already a member then please register an account and join in the discussion!

Sign up / Register


Back
Top