Wednesday, September 10, 2014

Oo, Oo, Weckerly Woman, She Got the Moon in Her Eyes


A couple of posts back I threw out the thought that those photos could, under certain circumstances, affect the ownership, control, or management of the Cowboys.  Or, at the very least, this possibility should be considered by the commentariat (other than Your Plainsman).  It did not get much traction.

I would now like to revisit that topic in view of Weckerly v. Jones, et al., Civ. No. 14-10061, District Court for Dallas County, Texas.

Just some random thoughts upon reading the complaint.  Bearing in mind that your simple Man of the Plains is no expert in sexual assault lawsuits, statutes of limitations, and the like.  But I think there are some things an observer can take away from this with a little effort.  (Since I haven't heard these thoughts elsewhere, it tends to suggest to me that, um, I may be missing something.)

First, it's interesting that this was filed in Texas state court.  If Weckerly is presently a resident of Oklahoma, she could have filed it in U.S. District Court here.  Maybe she no longer lives in the Ardmore metro and has moved to Texas.  But if she does still live in OK and she could have filed in federal court, I wonder how her lawyer decided to file in state court.  One possibility is that a state court judge would be more likely to be sympathetic to the local team.  But the local team ain't making too many locals happy lately, so maybe the calculation is t'other way around -- a state court judge would be inclined to hammer Jerry to please his restless constituents.  Also, if it gets to trial, a state court jury might be more plaintiff-oriented.  The law the two courts would apply would be the same -- state law, because they are state law claims.  But, fairly or not, the bar widely believes that the federal bench (unelected) is more learned and more likely to apply the law somewhat more expertly than a state court judge (elected).  Would that favor one side or the other?  DNK.  (Also, some state-court plaintiff practitioners are less comfortable with the federal procedural rules.)   Don't have a strong conclusion on this -- just an interesting strategy move.

Second, I just heard Intentional Grounding read from some motions filed by Jerry's team earlier today, asking for a temporary restraining order and dismissal on the grounds that the lawsuit is unbelievable and scandalous and a money grab.  In the absence of any factual record whatsoever, and in the presence (in the judge's mind, if not the record) of those pathetic photographs, the dismissal ploy is unlikely to work.    (I thought Texas didn't have a strict motion to dismiss, but rather an archaic form of pleading called "special exceptions."  I need to track down those filings.)

Third, at present it does appear that the technical issue is going to be the statute of limitations.

The lawsuit has several claims, each a tort:  (1) Sexual Assault; (2) Intentional Infliction of Emotional Distress; (3) Negligence; and (4) Conspiracy to Cover Up Sexual Assault.  The complaint alleges criminal conduct, but violation of the Criminal Code does not give rise to a civil claim beyond the torts described by the alleged conduct (I think; not sure about that).  The statute of limitations for tort claims in Texas for personal injuries caused by torts is two years UNLESS the conduct involves violation of the Penal Code in certain respects, in which case it is five years.  I understand that the encounter in question took place more than five years from the filing of the suit.  But, if the conduct took place in 2009, not a whole lot longer than five years.  Hold that thought.

So, is Weckerly sunk?


Her lawyer has thought about this, and alleges that the statute has been "suspended" pursuant to "TCPRC sec. 16.063."  (That's "Texas Civil Practice and Remedies Code.")  Well, let's Google that and take a look.  It states:  "The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person's absence."  In other words, the limitations clock stops while the defendant is out of the state, starts up again when he gets back.  Well, that would not work against the Cowboys, the other defendant, which hasn't left the state as a corporate entity.   But Jerry?  The incident was alleged to have taken place in "May or June of 2009," so the deficiency is not going to be more than about four months.  Could she show that Jerry was out of the state in the aggregate longer than that since the incident?  A month per year?  Dunno.  But if I were the court I think I might at least let her proceed with discovery on Jerry's whereabouts at all times between the assault and the filing of suit.  Maybe there are some technical interpretations of that statute that make this all more complicated than I'm making it seem, but they haven't jumped out at me in my Internet reading.  So -- maybe not a bad argument for Weckerly.  Maybe.


But there's something else that really, really intrigues me that I haven't heard mentioned anywhere, at least as far as this limitations issue is concerned:

       --  Paragraph 26 states that Jerry and the Cowboys "threatened Plaintiff so that she would not tell the police." 

       --  Paragraph 27 states that they "intimidated Plaintiff and told her to keep quiet and not tell anyone else 'or else.'"

       --  Paragraph 28 states that they "bullied Plaintiff into believing that she would somehow be in trouble if she told anyone about the sexual assault." 

       --  And most intriguingly, she drops this nugget:  Paragraph 29 states that they "intimidated her into signing documents against her will, without giving her a copies (sic) or access to legal counsel."

       --  Finally, she concludes in Paragraph 30 that those actions "placed Plaintiff in imminent fear of her life, safety and well being."  

I only know what I read in Google search results.  But I am pretty sure that statutes of limitations clock gets stopped or delayed, or "tolled," as it is called, if the plaintiff has been subject to "duress" during that period that tends to discourage her from filing suit within the proper period of time.  

These four paragraphs describe situations where plaintiff was pressured not to take legal action, and may have been pressured under threat or fraud to sign a release (guessing at what the "legal documents" might have been, if they exist at all), all of which would have served artificially to have caused her to refrain from filing suit while the statute was ticking away.

However -- Weckerly has not alleged duress as a ground for delaying the operation of the statute of limitations.  An oversight?  Or something that her attorney thinks he cannot prove?   I think I might say more about that "document," if there was one, even if she doesn't have a copy.   DNK.  But if he's smart, he'll find some other ground for tolling the statute, and based on what he's alleged, that ground should be duress.  Which is something that itself would be subject to "discovery" before a court would rule on whether it were a factually supportable theory for beating back the limitations defense.  At the every least, I would think it would serve to keep the lawsuit alive.

The point I wish to make is that no matter what you think of Weckerly, her motives, or her truthfulness, the wisdom of Google suggests that there may well be enough in this complaint to survive the initial technical challenges.  Again, the complaint is very, very unlikely to be dismissed just because it seems crazy, as seems to be Jerry's initial legal position.  (Really -- does it seem all that crazy?  Or, in light of those photos, does it ring highly possible?)



Fourth: What if it doesn't go away?   The suit could go on and depositions would be taken and it would devolve into the classic he said-she said, and maybe these "legal documents" surface, and maybe more pictures, and lurid accounts of Jerry's misconduct.  Maybe it gets settled; maybe the court grants summary judgment against Weckerly based on the discovery in the case (i.e., her case turns out to be factually deficient based on the sworn record in discovery); or maybe it goes to trial.

A whole lot more interesting is what Roger Goodell -- or his successor -- will do.  If Jerry is accused of sexually assaulting a drunken young woman, with photographic evidence that something happened, and that case lingers with her allegations potentially subject to a jury's decision, his hand may be forced.  Irsay.  Rice.  Rampant NFL thuggery.  A tsunami of disgust over the Niffle's handling of criminal conduct of its constituents has got to have them running scared in the executive suite.

All kinds of other things could happen aside from NFL discipline (or worse).  Gene cannot be happy that a jury will be asked to decide if her husband f-f'd a young woman and got fellated while requiring -- or even inviting -- Weckerly to admire the performance.  What's her level of tolerance for thoroughgoing mortification?  Fans could vote with their season tickets (as they're already starting to do). 

"So, set 'em up, Joe  .  .  .  . "
Again, my sports-radio-related point in suggesting that the complaint may not be as cartoonish as it seems is that at some level this is a sports story because, now more than ever, it could impact the operation, if not the ownership, of the Cowboys.  That it happened five years ago is irrelevant.  The Niffle consumer (and his spouse) are in an ugly mood, and Jerry looks, acts, and sounds like the corrupt face of big-time American sports -- and incompetent in the bargain.  He'll probably survive, but if this story turns out to be her word against his -- that is, if this case not thrown out on limitations or other technical grounds and is headed to trial, whether it gets settled or not -- it's hard to see how Jerry can continue to be the ubiquitous public face of his team and influential in the inner sanctum of the NFL.  And that would be a big change for the Cowboys even if he doesn't sell the team or move out of management.

And, finally -- what if this isn't the only time something like this has happened?

Even that insufferable jocksniff Papa John might stop calling.

48 comments:

Anonymous said...

completely unrelated but did you happen to hear what the controversial joke tony romo's personal trainer made on the david moore robert wilonsky show was?

birq said...

I'm praying to 8 pound 6 ounce newborn infant Jesus, don't even know a word yet, that this incident will pile up with all the other victims coming out of the woodwork and bring enough grief and bad publicity to get Jurrah banned from the NFL for long enough for the Cowboys to have a decent draft, but I know it'll never happen. None of these will ever see a courtroom and they'll all be paid to go away and nothing will ever really come of it.

On another topic, I've been jealous of all the Ticket first-stringers for forever because I wanted to be a radio guy when I was a kid and I thought they had my dream job. About halfway through the first Cowboys game of the season I realized their jobs suck because they HAVE to watch this crap. I can turn it off and go spend my time on better things. Poor guys.

Anonymous Ron said...

I think Jerry writes a check and this goes away. Beer at the Deathstar goes up a buck.

gunther said...

Great blog post Pman. Thought-provoking and informative. Thanks for the time you put into it.

My take? Fire the bum. (I don't believe that could happen but I was going for succinct.)

deezy said...

951, the interview opened with Robert asking the trainer about Tony's strength (maybe his back strength?) and the trainer replying (paraphrasing) "About as strong as Ray Rice's punch." You could tell Robert and David were aghast.

THE DEFINITION of an e-brake, but it will obviously never make the cut.

The Plainsman said...

On rereading this, I see that I did not make my "duress" point very clearly. Here's how I believe it works:

If a potential plaintiff is subjected to improper pressure, threats, intimidation, fraudulent representations, or other unfair conduct -- generally referred to as "duress" -- that has the effect of preventing her from taking legal action, then the period of time during which the duress was in effect is added to the end of the limitations period (i.e., the fifth anniversary of the incident). In other words, the limitations period is extended for the duration of the duress.

If she can establish the allegations of Paragraphs 26-30, or some of them, and that they were effective to keep her from pursuing a remedy for more than that four months -- then she's knocked out Jerry's statute of limitations defense.

And if she can do that, this case doesn't die so easy.

MoronDog said...

@Deezy - You are entirely correct. It would walk away with an e-brake win, but will never make it because of the current situation. It was tense to say the least and Bob and David handled it perfectly by apologizing at the end of the interview.

The Plainsman said...

Here's a quote from an online article on statutes of limitations in Texas sexual abuse cases, posted by a law firm that works in this area: "Texas also recognizes equitable theories which may toll or stop the statute of limitations, including the discovery rule, unsound mind, equitable estoppel and duress. Whether one of these tolling provisions applies is a fact intensive inquiry."

[http://www.gilstraplaw.com/articles_detail.sstg?id=21]

That last phrase, "fact-intensive inquiry," means -- you don't decide it by looking at the face of the pleadings filed by the plaintiff or defendant, but by the factual record created in discovery or in sworn court filings.

Which is why I speculate that there's enough in the complaint to keep this case going for awhile, even if eventually judged to be without merit or even barred by limitations.

Anonymous said...

Are you a lawyer IRL?

Anonymous said...

no chance this is the only time something liek this has happened. Could be that this brings some others out of the woodwork.

The Plainsman said...

My Ticket Confession is real life.

cactusflinthead said...

I was on the road while some of this went down, but apparently Sideshow Bob and Big Dumb Danny got into a Twitter fit this afternoon. It was about Warsh and the unnamed blog that has floated out the idea that it was some sort of sexual something. It was interesting to see the reactions of the shows to the story.

Serve me up a health portion of crow if that is the case. I do have the nagging question of why the organization was willing to stand by him if they thought it was a serious offense. The idea that he was in no worse shape than the cocaine incident ought to get some consideration to my mind.

PMan that looks fine and all, but if my lawyer beats up your lawyer, you lose. Jerry has mighty deep pockets. Does he keep slugging it out in court until she gives up? Do other more recent ones come out of the party bus woodwork? I think Jerry is glad to be off the front page today.



The Plainsman said...

probably, cactus.the wild card is the judge.if he rejects the preliminary motion to dismiss based on the limitations defense, new ballgame.dictated.

Anonymous said...

time for jerry the owner to fire jerry the serial philanderer

T4 In Rockwall said...

We all know what a philanderer JJ and his son are. This is how it all started with TW. One domino took it all down. I do t think it will go that direction but this could be more serious than it appears as or now. Nice write up Plainsman.

T4 In Rockwall said...

*don't think.

Colorado P1 said...

I saw Gwen Stefani at Reunion Arena once. My wife made me go

Colorado P1 said...

Oops I was thinking of the song by No Doubt called "don't think," but it was actually "don't speak." Complete Joke Fail. I'll shut up now

DRW1961 said...

So... Junior's end-of-Scattershooting joke this morning - ummm, he's going for Corby's "polarizing, over-the-top" title. Let's see if we can make domestic violence funny. Probably not suspension worthy, but given the events of the past week, probably should have been re-thought.

And, it was interesting to hear the reaction from Jub and Gordon. Gordon - "Just because you're quitting, doesn't mean you have to take us down with you." Any fire there??? There might be some smoke.

He certainly has gotten a lot "edgier" in the past several months. Junes is divorced now. His dad is in advanced age. I believe he has a sister somewhere - don't know if she's local or not. I would assume that he has roots here in DFW, but...

Could he be preparing for a major life change and have the "f it" attitude going? Is it time to prepare for some butt holding?

Anonymous said...

Given your nom de plume it is understandable. A little too much mary jane? Wacky tobacky? Lucky bastard.

Anonymous said...

@12:17 I heard and processed the same thing. Then I wondered, silently at first, then aloud, then I cried. Like a little girl.
Which made me think that: isn't Junior the most secretive, private person at the Ticket? Many assume it's Gordo because he keeps things close to the vest on things immediate family (if in fact there is any), but we've seen his tv show, his printed words in the press, his Starbuck's philosophizin. Jub's kids, UNT gig, music, call in's to other shows are legendary. Bob, Dan and Donny burn segments talking about life outside the show (Often their best work, imho). Hell, the Hardline devotes entire shows to their lives it seems. But Junior? He rides bikes. His dad has chickens. That's about it. He might chuck it in one day in a hastily typed tweet murkier than Wash's.
Not like I really need to know his life, he just doesn't have anything "public" like the other guys. Just sayin'.

Colorado P1 said...

12:21 -- yup, nothin like a little legal wake and jake

Anonymous said...

I have said it on these here MTC com boxes since MTC's inception: Junes will be the first Musketeer to leave. I think it's coming sooner rather than later.

So Anonymous said...

hold on to your tmz sports butts.

Anonymous said...

I'm so happy to hear that Corby has a date with Switzer this weekend.

deezy said...

I will miss the HELL outta Junes when he hangs it up. I really need to make it a point to walk up to him and shake his hand at a GNO soon. Not whip his ass...just shake his hand and tell him how much I've enjoyed him over the past 15 years (at this point).

But enough about me...

Charles Golden said...

What was the scattershooting joke?

Anonymous said...

Referring to Adrian Peterson, So Anonymous?

Anonymous said...

Corby and "Coach" will have a good cry together.

Anonymous said...

Charles, look at 12:17's comment for your answer.

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...
This comment has been removed by a blog administrator.
P1Rick said...
This comment has been removed by a blog administrator.
deezy said...

@Charles

This was Junes' joke:

http://www.reddit.com/r/Jokes/comments/1z7ogu/auto_correct/

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

@4:42 am

I seem to recall The Commander & Junes talking about some changes in the presentation coming in the fall.

Perhaps Georgie's "old man syndrome" and Junior's edgier, harder attitude is what they were talking about.

The reference Gordo made on Friday sounded like typical Gordo schtick to work up the listeners.

It appears that it worked given some the posts here.

Anonymous said...

P1Rick, I get it. But that doesn't make it right to post up such a link. Disappointed in Pman for letting it fly.

The Plainsman said...

dictating. I was away for a while, and for some reason did not get email notifications about these comments. Apologies to all.

Anonymous Ron said...

As long as we are on the subject of the Junes . . . he was one of the first people I followed when I set up my Twitter account. I just noticed that I wasn't following him anymore. I don't know if he cut me loose, and if he did I have no idea why.

T4 In Rockwall said...

He still has 59,300 followers so I bet it was a glitch.

Lucky Jim said...

Let's be rational. Gordon makes jokes about his apartment in Euless, his apartment pool, his divorce. None of this is true. And when Danny said Gordon understands contractor talk because he was a 'slum lord,' Gordo said, 'I don't know what anybody is talking about.'

The truth is Gordon used to be a landlord. He makes jokes. He swims through here every now and then.

His comment to Junes was, "Just because you're quitting doesn't mean we are...We still have bills to pay." It was a toss-aside comment.

Anonymous said...

Lucky Jim:

Common sense is on your side. But we aren't' dealing with an industry that's chock full of common sense. Even when dealing with the sanest group of the bunch. As far as the local radio industry goes, yes, The Ticket hosts are the sanest of the bunch. I think stability/long-term contracts/legacy careers in the industry, en masse, have something to do with it.

I heard the segment, live. It made my (genuine listening to the loop before Skip skipped me to work graced the airwaves) P1D1 ears prick up.

My guess is that Junior Miller will be the first original host to leave. I bet he leaves at the year's end.

Anonymous said...

Not sure how discussion on host personal status that might directly influence their decision to stay or go at the station in which we discuss daily here is such taboo. It is as almost telling a right wingnut that Faux News is not fair and balanced.

My personal take is that Craig Jr. Miller would be crazy to leave the job and I bet he doesn't. Some estimates have the Musers salary approaching 1 million per year per Muser. He has plenty of time and money to fly to his beloved mountains anytime he wants and works about 6 hours a day - why quit this gig?

Anonymous said...

Or like telling a left wing moonbat MSNBC is a legitimate news outlet. Take your partisan b.s. elsewhere, please. I'm sure Dallas' weekly version of Tiger Beat, The Observer, will welcome you with open arms.

cactusflinthead said...

FWIW there has been a recent Greggo sighting.
http://www.shaggybevo.com/board/showthread.php/40511-If-BaD-Radio-isn-t-on-from-3-7-p.m.-...?p=7119350&viewfull=1#post7119350
No idea if that link is workable, look in Varsity. Same thread as always.

Shaggy said...

That's from Greggo's twitter feed.

Anonymous said...

The conjecture and projection here is ridiculous. Musers make $400k each before bonuses, talent fees & endorsements.
-Not Spittle, Not Dawson, Not Richie

gunther said...

Seems to me bonuses, talent fees and endorsements could take them to "approaching 1 million" as someone earlier surmised. Doesn't sound ridiculous to me.