FR is reviewing the February 1 hearing in the civil lawsuit, Sarah Edmonsdson et al, vs. Keith Raniere et al.
This is part #5.
The first three parts focused on the financial targets of the lawsuit, Clare and Sara Bronfman.
The fourth part dealt with Nicki Clyne, who is a defendant, used to tie in Bronfman conduct with the greater NXIVM/DOS enterprise.
The other defendants from whom the plaintiffs ostensibly seek money are Keith Raniere, Kathy Russell, Allison Mack, Danielle Roberts and Brandon Porter. None of them have enough to justify a multi year, 70- plaintiff, dozen-attorney lawsuit.
Raniere, Mack and Russell are not mounting a defense.
Clyne, Porter and Roberts represent themselves pro se.
At the hearing in the US District Court for the Eastern District of NY, after the Court, the plaintiffs’ attorneys, and Nicki Clyne discussed claims against her, and whether they were legally sufficient, the judge signaled the plaintiffs’ complaint would likely be dismissed.
In their complaint, the plaintiffs used, the judge said, “a shotgun” approach, where they lump all plaintiffs together into every alleged injury suffered, while accusing all defendants as if they were all responsible for every harm to every defendant.
The shotgun is impermissible, and grounds for dismissal. Of course, the shotgun was aimed at the only defendants worth suing in this matter, the Bronfmans.
The main author of the plaintiffs’ complaint, lead attorney Neil Glazer, was absent at the hearing.
The following exchange between plaintiff’s attorney William E. Hoese, of Kohn Swift & Graf of Philadelphia, the law firm of which Glazer is a member, and presiding Judge Eric Komitee, indicates that attorney Glazer was absent for reasons beyond his control.
Attorney Neil Glazer did not appear at the hearing held to hear oral arguments to dismiss the lawsuit he started in late 2017.
HOESE: I also want to say just that Mr. Glazer apologizes for not being able to be here today. I can’t really say anything more about it, but I just wanted to let the Court know he wanted to be here so.
THE COURT: Okay, I hope he’s all right.
HOESE: Thank you.
Then the court went to the shotgun. The judge said he previously advised the plaintiffs that there were shotgun deficiencies in the complaint. The judge now felt the plaintiffs did not correct them, despite being advised months ago.
Judge Komitee makes it clear that he will dismiss some or all of the lawsuit. What is on the table is whether he will dismiss “with prejudice,” meaning the plaintiffs are done. The lawsuit is finished. They cannot amend the complaint and sue again on the same grounds. The judge might also dismiss “without prejudice,” meaning the plaintiffs can ask the court to consider allowing them to amend the complaint.
Judge Komitee turned to one of the plaintiffs’ attorneys, Aitan D. Goelman, of Zuckerman Spaeder of Washington DC, for his response to the possibility that the lawsuit, or large swathes of it, is dead.
THE COURT: Mr. Goelman?
GOELMAN: …I understand that the argument is basically ‘we [Judge Komitee] told you guys [the plaintiffs’ lawyers] that these were defects in the complaint. You had your chance, and now it’s too late…’ [dismissal with prejudice]
THE COURT: Right, but there’s still an assessment to be made [in my decision to dismiss some or all complaints] there as to the prejudice to the opposing party [defendants]. Like this case has gone on a long time…. And I’m not saying there’s a point of rule in this courtroom or anywhere else that if you’re offered an opportunity to amend [the complaint as the judge had done before with the plaintiffs] and you decline that you forfeit forever [dismissal with prejudice].
I’m saying that’s one factor, potentially, that’s relevant in the mix. Obviously, we should assess the extent to which you were really on notice [by the court] of the deficiencies at issue. How much time has passed since [the judge gave the plaintiffs notice]? … I mean, we have I think a pretty pronounced shotgun pleading problem with this complaint. And the Defendants have been saying it for a long time. The more I read the complaint, the more I come to the same conclusion… how many pages [is the complaint] in total?…
GOELMAN: Over 200.
THE COURT: Over 200 pages. And when I say tell me what are the facts that give rise to a predicate acts, I’m told [to] look at a couple of paragraphs that are hundreds of pages away from each other, and by the way, you have to interpret… you have to assess that predicate act by reference to the complaint as a whole, and draw all kinds of inferences that are not even explicitly articulated. And I might be more inclined to grant leave to amend if I thought that it would go a substantial part of the way towards solving the shotgun pleading problem.
It’s just going to make the complaint longer and more confusing, that might be relevant to the [my] analysis also. [But] not in a way that I think is helpful to you. Do you understand my question?
If it might militate against a finding of [a dismissal with] prejudice to the Defendants, if you are saying, at the same time, you ask for leave to amend [the complaint] that you’re going to simplify and streamline the complaint and make it a lot easier for everybody to understand what they’re accused of, you know.
You’ve got all kinds of claims here that you say every Plaintiff brings this claim against every Defendant, and then, you also have a thing about… multiple Plaintiffs or multiple Defendants on that claim.
How would you feel about the idea of, and I’m not saying I’m going to grant this, I’m just asking, is it possible that the amended complaint would come in substantially lighter and more focused than the complaint we have now? Because the answer to that question I think might inform the prejudice analysis you’re anticipating me making.
GOELMAN: Your Honor, are you talking about prejudice to the Defendants?
THE COURT: Yes.
GOELMAN: Because under that paradigm, every complaint filed is prejudicial to Defendants because they have to defend against it.
THE COURT: No, no, no.
THE COURT: I’m saying the Defendants have been laboring for a year under the obligation to divine [what] they’re accused of in a complaint that really doesn’t make that clear. And [granting the plaintiffs] leave to amend it [the complaint] seems theoretically possible [but it] could make that problem either better or worse.
And if there was some concrete reason to believe that leave to amend would help focus this case substantially and tell the Plaintiffs exactly what they’re accused of doing [then] that might be relevant to the analysis [of whether to dismiss with or without prejudice]. Does that make sense and sort [of] distinguish this case from every other case in the world?
GOELMAN: I understand what the Court means. I’m still not clear about the definition of prejudice that the Court is using. But I will say this. We’ll do what the Court wants. If you tell us, if you dismiss it with leave to amend and, you know, indicate what you think the deficiencies in the complaint are, then we will attempt to write a complaint that cures those deficiencies.
The pre-motion letters by the Defendants contained allegations that the complaint was deficient in about 50 different ways. Now maybe the Court agrees with 10 of those. Maybe the Court agrees with 5 of those. I don’t think the Court agrees with all 50 of those. So it’s pretty impossible at that point, as Plaintiffs to go back and fix things, when you’re just being told to hold the whole thing sucks….
THE COURT: Well, every case has to be judged on its own merits….
GOELMAN: Can I just add one thing Your Honor?… The one claim that would be futile is if the Court agrees that because one or more Plaintiffs [Sarah Edmondson, Mark Vicente, etc.] were also [high ranking members] in NXIVM, that inherently means they can’t be a Plaintiff in a RICO lawsuit. And that is something that the Defendants have argued. I don’t think it’s the law.
THE COURT: No, no.
GOELMAN: If it is the law, we can’t… change that.
Stay tuned for Part #6 of the hearing.