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.