A home for those who love almost everything about The Ticket (1310 AM, 96.7 FM, Dallas-Fort Worth), and who would like to discuss -- respectfully and fondly -- their thoughts on how (and whether) to eliminate the "almost."
The lads have been granted permission to file a brief in excess of 15 pages. As of tonight (Wednesday the 13th), nothing has been filed by either side. If I recall, the court's earlier orders did not require any filings before the hearing.
The hearing has been moved to 8:30 a.m. on Friday, the 15th (same date as previously set, just an earlier time). Perhaps the court is expecting a lengthy hearing, or it may be something else entirely.
It would seem to be clear that earlier representations that the parties were working hard on settlement in order to get extensions were, shall we say, optimistic.
If anyone can haul themselves to that hearing on Friday, we'll be grateful for reports.
Let me pre say I mean no offense, but the whole Cloud vs DnJ and tha fate of TT and anyone's feelings about either TT or DnJ is an exercise in watching paint peel. So over it, DnJ, the arm chair and real legal experts, the arm chair MBAs, the DnJ fanboys, and all the rest. One giant middle finger to it.
The filings https://www.reddit.com/media?url=https%3A%2F%2Fpreview.redd.it%2Fb3re6nna59ob1.jpg%3Fwidth%3D746%26format%3Dpjpg%26auto%3Dwebp%26s%3Dca374439179586d8d240afad048ffdebfce51b19
Reading through all these filings...who could have guessed that an attorney podcasting about his client's pending case might not be ideal? It sounds like everyone here who shit on Kingston has been vindicated.
@ Legal Eagle -- thanks for the correction. Right.
The motion to dismiss -- to which Cumulus will have the right to respond -- asserts three bases for dismissal. I have not read the motion.
Before getting to SD+J's arguments: I'm puzzling over how this will affect tomorrow's hearing. My first thought was that it will not affect it at all, as the motion before the court will be Cumulus's motion for "emergency" relief (after all this time), an injunction. On further reflection, though, the lads' arguments go to the court's power to do anything at all other than dismiss the case.
But the court has been aware of this argument for a long time, and yet it continues to issue orders and schedule hearings. This tends to suggest that she has not been inclined to question her jurisdiction, which suggests she will not be inclined to postpone tomorrow's hearing while she mulls over the motion to dismiss.
This, by the way, is another reason Cumulus's failure to pursue this case vigorously (and, I would argue, competently) at the outset is costing it so dearly now. Most plaintiffs would have run into court with a properly-papered emergency motion when the first podcast dropped, or perhaps even before. Not having done so, and having agreed to delays, has given the lads time to muck up the works with a full-fledged jurisdictional argument before the motion for an injunction could be heard on the merits, placing the court in the awkward position of moving forward with a long-scheduled hearing while one party is making a jurisdictional arguement, which, if accepted after full briefing, would render that hearing a nullity.
Returning to the three grounds asserted for dismissal:
The motion to dismiss is based almost entirely on their argument that the National Labor Relations Act pre-empts Texas state contract law. They're almost certainly going to lose that argument in the long run, and, as I suggest above and elsewhere, the fact that the court is proceeding while already aware of this challenge to her authority to act, tends to indicate that she doesn't think much of it.
The second argument appears to relate solely to Cumulus's "conversion" (theft) count, arguing that under Texas law you can't convert intangible property (logo, name, website, etc.) It's one-page long. Even if meritorious, this falls into the who-cares category, as these items are covered by counts other than the conversion count.
The final argument is that the complaint is too indefinite and that Cumulus should at a minimum should be required to file "a more definite statement." Guaranteed loser.
So unless this filing somehow gives the court pause on proceeding with the hearing, which seems like a very unlikely thing for this no-nonsense, let's-get-going judge to do, it's really just more of the same that will eventually require the court to rule on the lads' NLRA pre-emption argument, which, I'm suggesting, the court has already impliedly done in proceeding to a hearing on the merits of Cumulus's claim for temporary/preliminary injunctive relief.
Kingston is such a tool. I am not shocked he stuck his foot in his mouth. I see why they hired two other real Texas lawyers to cover for him.
But attorney statements are not admissible as any type of evidence that is not related to sanctions against said attorney.
Cumulus still has not included any actual evidence of harm. I guess they are still relying on who they are going to present at the hearing for live testimony. But them filing a few weeks late, being slow to get the hearing, passing on the initial hearing, it's hard to cry harm now when they haven't been acting like they are being irreparably harmed by TDZ.
Prediction: No renewed TRO/PI, but Cumulus will still likely win in the end for at the least Jake
I've now heard from three different "sources" who vary in range of proximity from The Mothership that 2024 will be one long victory lap for The Musers. They want to go out on top and on a nice number (30). The announcement will be made when they return from dry dock in Jan. One "source" claims not just the announcement but also their last day will be the final day before going into dry dock. Meaning they'll go on vacation and never return, allowing for the new year to be a new beginning for TT.
I would have thought so at the outset, but Cumulus's failure to insist on an extension of the initial order keeping the lads off the podcast and sosh seems to me to have been a serious error, damaging their right to any kind of emergency relief for the reasons you say. And if they don't get any preliminary relief, it's hard to see how they're going to get any permanent injunctive relief after a trial in December -- even against Jake.
I do take note of Cumulus's filing calling to the court's attention Mr. Kingston's podcast statements that the NLRB is "going to take this thing over" and hand the lads "a big win." A gigantic misstep by the lads' counsel that will not endear their cause to the heart of this judge. In general, however, unless counsel has made an utter ass of himself in open court or somehow prejudiced the proceedings by his statements outside of court, a judge will not hold a litigant's unfortunate choice of counsel against it.
Additionally damaging to the lads' prospects was Mr. Kingston's strong implication that defendants were not proceeding in good faith seeking extensions on the representation that settlement talks were continuing, suggesting that they were hopeful the NLRB would do something in the interim to relieve them of the burden of defending the case or conceding anything in a settlement.
Cumulus's brief looks good on a very brief perusal. Only thing I would have done differently would have been to highlight Mr. Kingston's ad hominem name-calling regarding Cumulus counsel.
I would expect, though, that the court will have a few choice words for Mr. Kingston tomorrow morning.
By the way: The Cumulus brief states that the Jones Day lawyer, Brian Jorgensen, was retained to assist with the settlement discussions (why?). He does not appear in the signature blocks of the Cumulus brief, which I find very odd, even if he's not lead counsel and even if Jones Day didn't write it.
Advantage beginning to tip back towards Cumulus. Not sure it's all the way back, but if it is, it's because Mr. Kingston has implied, if not outright stated, in public that defendants falsely held out the possibility of settlement in the (actually pretty crazy) hope that the NLRB would somehow stop a federal court proceeding. Judges don't like to be lied to.
I forwarded TDZs brief to a friend who is a lawyer. He characterized it as 75 pages of defendants as shouting “you’re not the boss of me” to a federal judge. Also thinks that Cumulus allowing the paywalled podcasts as a sign of good faith in the negotiations will weigh heavily versus the perception that TDZ is waiting for the NLRB to save them. That they’ll be able to argue “look we let them podcast because we thought we were negotiating in good faith, clearly they’re not, and that’s why we deserve a TRO, especially against Kemp who’s contract specifically bans his current actions”. He also said if judge thinks she has jurisdiction, the fact that NLRB hasn’t even reached out to Cumulus yet cuts against TDZ. She’s not going to put the case on hold to see if/when NLRB decides to do something. C
He is the retained counsel by CUM for the NLRB charges and is the only counsel that has appeared there. He was likely retained in this local matter to examine the pre-emption arguments and draft the response to the 12b6 motion on preemption
I'm wondering if perhaps Cumulus will come loaded for bear.
The Cumulus response mentions an expert witness deposition, so perhaps some discovery has taken place in the meantime. Unlike the lads' counsel, who seem to have a predilection to grandstand by trumpeting their evidence, Cumulus has not (unnecessarily) disclosed its own witnesses, documents, and other evidence. The lads' not-too-subtle communicating has given Cumulus much information on what they're going to face, and you can bet Dan Bennett and Jeff Catlin will be extremely well-prepared for their direct and cross-examination. And there may be surprises -- sponsors; perhaps Bob or Corby to testify about the content of these meetings. (Not beyond imagining that the lads will have subpoenaed them.)
You seem to take every word of a brief by cumulus, where we know they inflate and use hyperbole to be gospel.
Yes, Kingston is a blow-hard who should keep his mouth shut. But the idea that he has given substantial evidence that they didn’t negotiate in good faith is absurd. Cumulus will state a fact at level 10 and then when the quote is shown they’re basing that on it’s a 2 or worse.
All cumulus’s briefs have said is “they’re not playing by the rules we want so we’re going to whine” without actually showing any harms or malfeasance.
I’m biased because I want the boys to prevail, but you’re not even trying to hide your bias with your “smilin Dan” stuff.
You can call "bulsh" all you want, A.C., and I'm not saying you're wrong. I'm only reporting what I've heard. All three people say this has been their plan well before Norm and Dan and Jake left.
The old adage, "you're a reflection of the company you keep," seem apropos when it comes to Mr. Kingston and those who choose his energy.
Not too far a piece down the road, there's going to be some parties involved who will be roundly turned on by even some of their most ardent supporters.
Cassandra, You have piqued my interest! Are you saying they will retire after holiday dry dock 2023 or will they announce that 2024 will be their final year? I tend to believe you have heard this from a reliable source and is in line with what I have heard one true muser say to someone privately. Please clarify timelines if you would be so kind.
Yes, I do think the lads have been done dirt by their intemperate (and noisy) counsel basically admitting that they were jerking the court around.
It will weigh against them, but, in my judgment, does not excuse Cumulus's agreement to let them continue podcasting while claiming they need an emergency order to stop it. Cumulus looks nice, and dumb.
I heard both. Two claimed that when they return from dry dock '23 (Jan. 24), they will make the announcement and take a victory lap, retiring dry dock '24. The third person said the announcement would come a bit before dry dock '23, and that they would retire the day they were scheduled to leave for dry dock '23. All three said this is not a Rhyner 1st retirement/Irish Exit situation; that this has been in the works. All three talked about the 30 year mark, going out at the top of their game, and entering into new phases of life being the engine. Without being specific, I can tell you two know each other, and one is a bartender at a brew pub (not affiliated with Ben and Skin's place). All three are in some degree of proximity of Ticket personnel.
I am in no way telling anyone to hold onto their butts. This is what I've now heard three times. Nothing to See Here might very well be correct, and it's a load of b.s. Just thought I'd pass it along. Both the beginning of and the return from dry dock '23 will be here before you know it, so we'll see.
Based on the increasing intensity of George's visits to his kids and soon to be grandkids in the Austin area, and Junior and his wife's frequent visits to the mountains of NM and the fact that Gordo is quickly trying to establish a social media platform presence what Cassandra says has merit in my estimation. They also know that after taking a sabbatical they can come back with a pod in 6 months or so in which they could make nice retirement cheddar yo while being able to move to their retirement destinations.
You see, when Cat spoke of The Finish Line to Sirois, he wasn't referring to Norm and a host spot opening up. No. It was much bigger. It's advent at that time a couple of years out but nevertheless a "known known" by those in the know, which Mikey was not.
Why do you think the midday revamp seems so awkward (?). Because it's stop gap deal.
@ChadGPT, I think you’re really on the nose with George. Kids all out of college and now all in Austin. He’s very open about his affinity for the TX hill country. I’ve thought for awhile that the moment there’s a jub grandkid in the oven, he’s a short timer and is headed to CenTex. And then the body blow he took with his sister’s death. The segments I heard in the wake of that…the big man is hurting and needs to be closer to family. George’s days at the little one are numbered for sure. And I don’t think any of the Musers want to do their show minus one of them
Add onto that, MCC and ChadGPT, the fact that Junior openly discusses retirement, that he has no intention of dying on the mic, and that he has other things he wants to do while he's physically and mentally able to do them. This includes living in or right near the mountains. Gordo has over the past year gone out of his way to wax poetically, at times almost in the past tense, about how he's come to realize how much this job means to him, what it's done for his life, and how special it and the relationships formed because of it are.
Cassandra's info might be bulsh, but I have to admit that it's by no means tin foil hat stuff.
You wonder if George was upset when D&J departed was due to the fact that he knew if the boys stayed it would have fit his plan better of the Musers leaving and D&J sliding into their slot and leaving the station in good hands
Sam, you seem to be overlooking the fact that Pman actually has experience with this, so if he reads the briefs a certain way, it's not necessarily because of bias. Also, he has been extremely critical of Cumulus' handling of the litigation, so your point is actually quite terrible.
Except that p-man has been using a derisive nickname for Dan day 1. Yes, he has been critical of Cumulus, but it has always felt like he was cheering for Cumulus to get this figured out.
Ah yes, I forgot he’s the only one who went to law school in the world. We’re lucky to have you here to put anyone who disagrees with him in their place.
When the initial brief came out it was full of inflammatory language and factual…misstatements (lies). But you all ate it up because you don’t want to believe that people you use pejorative nicknames for might be right.
Dan and Jake are either really done with radio, or the musers news isn't true is my guess. I would think the Musers being that close to retirement would have kept Dan and Jake on board.
Yes. Hearing should have been going on about an hour. Judge may be one who allows no phone use at all in the courtroom. (Heaven save you if your phone rings.). And, like last time, they may have started in chambers.
Sam, you sound delusional. I said in the last post that I really enjoyed BaD and THZ and wish the show was still on the Ticket. That has nothing to do with who I think is right or how they have behaved in this litigation. It is ridiculous to claim that Cumulus is the one that has used inflammatory language in its filings. They have been about as staid as possible -- possibly to their detriment. D&J's attorneys on the other hand have filed numerous sneering briefs, to say nothing of the out of court comments by the attorneys.
Not everything in the world has to be part of your political ideology. Unions and leftism and FTM sentiments and whatever else will still exist even if two radio hosts lose a civil lawsuit. It's going to be OK.
Calm down man - there’s plenty of boot left for you to lick. Dan Bennett damn near perjured himself with that first filing so maybe take a step back on “sneering briefs” - at least they’re not full of lies and hyperbole.
The complaint says they are actively soliciting advertisers to leave the ticket. Bennett swears to this fact. Yet advertisers are testifying on behalf of Dan and Jake saying that’s not true.
So yeah, if it’s not true and Dan Bennett swears it is that’s perjury. It’ll never go anywhere but don’t act like they’re playing this 100% by the facts.
Not to nitpick, but posters above are assuming that Bennett is talking about either Eatzis or Alamo Draft House, the 2 advertisers that TDZ wanted to call as witnesses. What if there’s another client (or clients) that Dan or Jake called? I’ve heard a rumor, but it’s so thinly sourced (it literally goes thru 3 people, all with 2nd hand knowledge) that Dan called a bunch of TT clients right after his departure. More than just Eatzis and Alamo. C
Horan has, for some reason we will never know, found a reason he sees a conflict in ruling on any matters in this suit, so he’s asked another magistrate to be assigned. Magistrate judges handle a lot of the day to day in civil cases (basically everything except trial, often). Their decisions can be appealed to the district judge with varying standards of review depending on the type of ruling (dispositive motions are different than, say, discovery motions)
My understanding was that it was in front of the District Judge. Usually there’s an order of assignment of a case to a magistrate and I don’t believe I’ve seen one in this case.
Jones Day may be a reason. A partner at my firm was elected as Judge and had to recuse for a year for any cases our firm was involved in. It's a common reason for recusal. That was state court.
Horan was at JD over a decade ago. For Federal Court it might be longer or he might have worked in the same department as Jorgensen.
No reports as of 1:45 p.m. Possibly on lunch break right now. If matters had concluded, I would at least have expected a minute order noting that the hearing was held, arguments heard, evidence taken, etc., even if no decision were forthcoming. So, my ass is assuming that the matter has not concluded for the day.
Told ya Sam Hale was in here. That is, ex-Ticker Man, Sam Hale. The one who Judge Junior ruled to STFU for a month or few because, well, I'll let him tell the story in his own special way. The same Sam Hale who is VERY active on reddit Ticket and reddit Dumb Zone. Ever toxic (as he's shown here....this is the first time he's actually used his regular handle...but not the first time he's commented....no, that's done under a series of nom de plumes), quick with the ad hominem, how shall we charitably say, "curious" rhetorical stratagems, etc., et alia, ad infinitum. Hiya, Sam! Oh yeah, he's very much inclined to whine, piss AND moan about MTC and Pman. Yet, here he is. He's been here for years. Just trollin' away. Haven't ya, Sam. You bet, turbo.
Say, Sam, we sure could use someone on the penalty kill. Heard your poke check needs work. That's OK. Coach can fix 'er up in no time. He's good like that.
Well, the day is over, and I've heard nothing. Can't blame the Confessor for not wanting to spend the day sitting in a courthouse, and I myself couldn't make it, much as I would have liked to. No orders have been posted on the non-PACER site that I've been reviewing, and the Justia site is even further behind.
I also have not seen any new accounts reporting on the hearing.
So I have no idea what happened today. Will have to wait until an order is posted. Even if the court did not rule today, I would expect a minute order noting that the proceeding was held.
There’s also a picture a lawyer who shall not be named tweeted of two smiling men (well one smiling and one holding an iPod nano). No idea what it means but it’s out there.
Still no order listed on Court Listener. If DZ Fan is correct (have no reason to think he isn't), I'd be interested to know whether the court denied the injunction in open court, or simply did not rule on the motion, which would also have the effect of permitting continued podcasts.
In any event, apparently at the very least a temporary victory for the lads.
PMan held out as some expert legal wizard when he makes statements that even moronic non-lawyers can identify as patently stupid. You expected the judge in this case to rule on things that hadn't yet been argued? Jesus man. Maybe there's a reason you no longer practice law.
"But the court has been aware of this argument for a long time, and yet it continues to issue orders and schedule hearings. This tends to suggest that she has not been inclined to question her jurisdiction, which suggests she will not be inclined to postpone tomorrow's hearing while she mulls over the motion to dismiss."
No argument has been made to the court to this effect (prior to this week's filings). No request of the court has been made to this effect (prior to this week's filings). Yet you think she should simply rule. On what grounds? On what argument? Literally. There has been ZERO request for the judge to take action to dismiss until the docs filed this week. And the filings this week weren't asking her to postpone today's hearing. Man. Srsly. People on here think you're good at this
Hey Kingston. Ya, it's you. You've been trolling like Sammy has for a piece now. Can't help yourself, can you. Well, it's your way now, isn't it. It was that last jab that gave away the game. Stylistically, how shall we say, had a certain pathology to it. Sad thing is....all those sad sacks, including your clients, well, they haven't a clue as to what you're up to. Poor babies. Pawns in your thirsty game. See ya at Sunday's game. We're a lace 'em up tight bunch. Aren't we, Phildo? Bet Your ass we are.
Jesus, you asshats make this site unreadable. Take the agendas, the name calling, and the personal attacks elsewhere and let the adults in the room have a civilized conversation.
According to a Reddit user who was at the hearing yesterday, Cat testified that ratings are down 45% middays and 30% overall. See my previous post about just saying “the ratings are high, everything at TT is great and all their decisions are the right ones”. That’s a shocking drop in a short period of time, and right as summer ends and football kicks off, which is normally a ratings boost.
Also important note from the hearing - Dan testified that they tried to keep this private and not complain about their situation or the way JV folks were paid/treated because he “wanted to be cool and didn’t want to hurt The Ticket”. I think that sentence says a lot about why people are pretty fired up about the state of the station currently.
Before establishing the Norton Volume on American Literature, M. H. Abrams was known as a genius mind teaching at Cornell. Among his students were Thomas Pynchon, the novelist, and Harold Bloom, the academic who is attributed more or less with establishing the literary canon. In the recent past, one of Bloom’s students complained that he was “boring” on Dr. Bloom’s RateMyProfessor page.
No matter what happened in TDZ/Cumulus trial yesterday at least we can all say that a great god fearing man and fellow Texan Ken Paxton was acquitted of all charges. His wife, mistress, contractor who he funneled state assets to are all grateful for the realization that ULTRAMAGA is the only way to salvation. Praise thee Oh Lord and let's pour one out for Lauren Boebert while we are at it.
Based on those notes, no evidence of harm. Lower ratings is because Norm and D+J left and replaced them with lesser talent, not necessarily because there is a competing podcast. Every lawyer knows correlation does NOT equal causation.
Mean emails to Cat? That's not evidence of harm
It looks like the advertisers were not called as witnesses. Therefore, any testimony about advertising poaching would have been hearsay.
Cumulus may have an ultimate case, but at this point there appears to be no evidence that the TRO/PI needs to be issued. Therefore, denying the TRO was the right call
Well, the ratings are down, but they are (as of the last book), #1 - both things can be true.
May was a ridiculously tall, double digit share number, and was always going to come back to Earth, and they appropriately have been since. So, without the context of Cat's quote I can't tell you what point he's attempting to make or how it relates to the question that was asked him.
People tend to forget this time last year, TT wasn't #1 in any day part, and historically is only rarely #1 in a couple of dayparts - 2023 overall has been a record breaking ratings year for a nearly 30 year old station.
There's still the actual trial in December and where all the real risk lies, the pay off for D&J of the TRO denial is they now have income to pay what I would assume is not cheap legal work - "billable hours"!
I would ordinarily have deleted RumHam’s intemperate and wrong comments of early this morning. But since he has attacked me personally and professionally, I thought it would be imprudent to let his statements go without response. Unfortunately, that may only be done at length. Unless one is really interested in federal jurisdictional issues with the intensity RumHam displayed, I urge you to skip my next few comments.
RumHam, RumHam, my dear Confessor, why so harsh? Why so angry at what you perceive to be Your Plainsman’s legal errors? Perhaps if I can explain a few things about federal jurisdiction and the record in this case it will sweeten your attitude towards the proprietor here. I’ve tried to keep procedural matters in this case as non-technical as possible, but your critique depends materially on some technical matters of which you appear to be unaware.
The nub of the gist of your opinion that I operate at a sub-moron level in my ruminations on this matter are summed up thus in your communiques of 12:34 and 12:41 this morning: “You expected the judge in this case to rule on things that hadn't yet been argued?” (Referring, apparently, to the defendants’ position that court’s jurisdiction in the matter was pre-empted by the National Labor Relations Act.) And your argument for “hadn’t yet been argued” was that: “No argument has been made to the court to this effect (prior to this week's filings). No request of the court has been made to this effect (prior to this week's filings). Yet you think she should simply rule. On what grounds? On what argument? Literally. There has been ZERO request for the judge to take action to dismiss until the docs filed this week.”
Before explaining why you are in error, I need to point out not one, but two straw-man arguments in your blasts: First, I don’t think commenters believe me to be an “expert legal wizard” which impression it is necessary for you to contradict. Second, I have never stated that I “expected the court to rule” on defendants’ NLRA argument, at least in the way you are using the word “rule,” i.e., rule on an express motion. Instead, I stated exactly what appeared in the quote from me you seem to find so inexpert: “But the court has been aware of this [NLRA] argument for a long time, and yet it continues to issue orders and schedule hearings. This tends to suggest that she has not been inclined to question her jurisdiction, which suggests she will not be inclined to postpone tomorrow's hearing while she mulls over the motion to dismiss.” Not a syllable of that quotation suggests that I expected her to make a formal ruling on defendants’ argument, only that, having been made aware of it (see next paragraphs), she must not have thought much of defendants’ argument because she was acting like she had jurisdiction.
She became aware of it well before the motion to dismiss that you find so critical. Before I explain why this is important, let’s count the filings:
August 10: Defendants’ Response in Opposition to Injunctive Relief: pp. 17-24, plus the attached NLRB complaints. (Actually, according to the Court Listener docket, this was filed three times on the same day, twice for Jake, once for Dan.) This filing states that “the large majority of Plaintiff’s claims are preempted by the National Labor Relation Board’s (“NLRB”) exclusive and preexisting jurisdiction” (pp. 4-5) and “cannot be adjudicated by this Court” (p. 13) and “[t]he Court should not attempt to exercise jurisdiction over [the claims] even for the purposes of emergency relief.” (p. 25)
August 15: Defendants’ Amended Response in Opposition to Plaintiff’s Original and Renewed Application for Injunctive Relief, pp. 15-21, the first heading of which states: “This Court currently lacks subject-matter jurisdiction over the non-compete and non-disparagement claims due to Garmon preemption and the NLRB’s exclusive jurisdiction.”
And finally, September 14, the Motion to Dismiss Pursuant to Rule 12(b)(1) and Rule 12(b)(6) that you believe to be the only thing that could possibly require the Court to rule on its own jurisdiction.
Now, we have to understand what jurisdiction means in this context. As defendants’ filings explicitly and correctly state, what is at issue in their argument is what is called “subject-matter jurisdiction.” The federal courts are courts of limited jurisdiction – they may only hear the cases that a constitution or statute authorizes them to hear. Susquehanna recited two grounds for subject-matter jurisdiction in this case: (1) plaintiff and defendants were citizens of different states (“diversity jurisdiction”); and (2) for the intellectual property matters, the case raises questions of federal law (“federal question jurisdiction”).
Several important things to understand:
Subject-matter jurisdiction is really, really, super important. A court either has subject-matter jurisdiction, or it doesn’t, at every point in the case. It doesn’t float around in the air and only appear as an issue when a party has made a motion calling it into question.
Subject-matter jurisdiction may not be waived. That is, the parties cannot agree that the court has subject-matter jurisdiction, or may eliminate it as an issue by not raising it in a motion. The court may determine the existence or non-existence of subject-matter jurisdiction on its own motion (“sua sponte”) at any time (this alone defeats your criticisms), and any party may raise it for the first time at any time during the case, including on appeal.
Now: Subject-matter jurisdiction is subject to defeat even in cases where the statute authorizes the court to act, and one of those limitations is federal preemption, which is a doctrine originating in the U.S. Constitution’s Supremacy Clause, which trumps the jurisdictional statutes. This is the argument made by Dan and Jake here.
A judgment or other order rendered in a case in which the court does not have subject-matter jurisdiction is VOID. If the court does not have subject-matter jurisdiction, then any judgment for plaintiff or the lads in this case, or any other order – other than an order dismissing the case for lack of jurisdiction – is absolutely without effect. It’s like the case never happened, and if a court proceeds without subject-matter jurisdiction has wasted its and everyone else’s time, and perhaps made other damaging errors, by proceeding.
This is why, in the words of the United States Supreme Court, all courts have an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” (Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).)
So, my dear RumHam, when the lads explicitly told the court it did not have subject- matter jurisdiction, the Court was placed on notice that, if that argument had merit, it was in danger of proceeding in a case in which it was not authorized to act, and it had the independent obligation to determine whether jurisdiction exists even if no one had filed a motion.
As I was reading matters, while the Court did not issue an explicit “ruling” on a “motion” which you seem to find determinative, it seemed to me that the fact that she continued to issue orders and schedule hearings on the merits of the claims (i.e., on Susquehanna’s motions) indicated that she didn’t think enough of defendants’ jurisdictional arguments to initiate any kind of formal proceeding to “rule” on them – implicitly rejecting the arguments. Which is what I said in the excerpt you quoted.
So when you ask: “You expected the judge in this case to rule on things that hadn't yet been argued?” I answer: (1) Jake and Dan had argued them TWICE before it filed the motion to dismiss, and (2) yeah, I kinda do, even if only by implication, because the court must always ensure that it has subject-matter jurisdiction at every point in the case, and especially here because Dan and Jake stepped right up in two lengthy pre-hearing filings and said “this here court doesn’t have subject-matter jurisdiction.”
I trust the foregoing will inspire a more charitable view of Your Plainsman’s analysis.
Hard to believe that it was, what, a year and change ago, if that, that Jake was gushing over Cat and Bennett and Cumulus for being so understanding and supportive about the situation with his then newborn son. Things really can and do go sideways, don't they.
I honestly think there is no Team Good Guys here. I believe both sides have at times acted in bad faith. I also think that from the onset this has been very personal (again, both sides), regardless of what Cat, Dan, or anyone else says. Both sides have been playing semantics, both have played the victim, and both sides appear to seek the ruination of the other -- again, despite claims to the contrary.
As I said at the top, things really can and do go sideways. In this case, sadly, irrevocably so.
Hear hear and a robust "I third that" to OverItAlready's admonition. The Dali-esque trolling is so very very dull.
Fairly certain, Plainsman, your critic was the same ex-Ticket employee who recently graced MTC with vitriol, errant assumptions, ad hominems, expletives, and an all around sophomoric mode of expression. I believe Junior's sentence was too lax. The lad failed to learn from his previous missteps.
You might not be. The connection between your username and the Ticket personality made me chuckle.
The move to using names instead of anonymous has created some entertaining bits. I like it. Understand others see it as immature and getting away from the matter at hand.
Did Pman know and that is why he hit him with the telephone book of responses?
And how would an account attributed to him know anything to make comments here? This could be an obvious answer but still curious how a former could be a knower.
I've lost track. Who do we think is who? And why? I see references to Sam Hale, TC, one of the lads' lawyers. It's all somewhat sailed past me. And why this mystery guy's hostility? Thanks.
We legal minds here don't find it surprise it at all that D&J won the hearing yesterday, it's only further proof that their representation has no clue what they're doing and Cumulus is going in full control.
@C- No one cares who you send briefs to and what they think. They are currently batting .000 or close to. We know how you feel about non competes but sit on the bench for a while. You’re one of the posters making MTC look like crap.
Dr. Samuel Johnson is right about Olson Johnson's being right. Name accounts seem to cause more confusion or trolling. In the past it seemed most anoms' styles could be deciphered; thus followed more fluidly. Or maybe there were less confessors/commenters trying to score a screenwriting credit on Suits. Now, my lurking feels like working.
Lurker I will help define what you are trying to say. It’s a cut and paste from before.
The move to using names instead of anonymous has created some entertaining bits. I like it. Understand others see it as immature and getting away from the matter at hand
Shoopie makes a good point. Have Cumless’ legal dream team scored ANY victory for their client up to this point in the proceedings? Seems like hapless Bruenig and Kingston naught actually not be so hapless after all.
Once again, some fool making idiot stick comments and atta boying their own comment under another name. Sunday Funday began early for at least one of us, it seems.
You must either be extremely bored or live out a rather sad existence. Or, more likely, it's a combo platter.
It contains a lengthy analysis of what we know and don't know, where matters stand, and what might come next, with the caveat that we don't really now what went on in the hearing and what the court actually ended up doing. So lots of guesswork.
If you're not interested in these technical matters -- please, I beg you, skip my commentary.
Only new developments:
ReplyDeleteThe lads have been granted permission to file a brief in excess of 15 pages. As of tonight (Wednesday the 13th), nothing has been filed by either side. If I recall, the court's earlier orders did not require any filings before the hearing.
The hearing has been moved to 8:30 a.m. on Friday, the 15th (same date as previously set, just an earlier time). Perhaps the court is expecting a lengthy hearing, or it may be something else entirely.
It would seem to be clear that earlier representations that the parties were working hard on settlement in order to get extensions were, shall we say, optimistic.
If anyone can haul themselves to that hearing on Friday, we'll be grateful for reports.
Not that it’s a big deal, but their motion to exceed let’s them go over 25 pages, not 15.
ReplyDeleteLet me pre say I mean no offense, but the whole Cloud vs DnJ and tha fate of TT and anyone's feelings about either TT or DnJ is an exercise in watching paint peel. So over it, DnJ, the arm chair and real legal experts, the arm chair MBAs, the DnJ fanboys, and all the rest. One giant middle finger to it.
ReplyDeletenew filings and stuff
ReplyDeleteThe filings
ReplyDeletehttps://www.reddit.com/media?url=https%3A%2F%2Fpreview.redd.it%2Fb3re6nna59ob1.jpg%3Fwidth%3D746%26format%3Dpjpg%26auto%3Dwebp%26s%3Dca374439179586d8d240afad048ffdebfce51b19
That is hilariously lengthy response to the filing.
ReplyDeleteDying to know who is paying for all this legal work.
4800 Patrons are paying for the legal work
ReplyDeletethen tomorrow is really important to them.
ReplyDeleteIt's important to a lot that goes on imo.
ReplyDeleteReading through all these filings...who could have guessed that an attorney podcasting about his client's pending case might not be ideal? It sounds like everyone here who shit on Kingston has been vindicated.
ReplyDeleteSo what is their complaint with his tweet and podcast comments? I don't have access to the actual filing
ReplyDelete@ Legal Eagle -- thanks for the correction. Right.
ReplyDeleteThe motion to dismiss -- to which Cumulus will have the right to respond -- asserts three bases for dismissal. I have not read the motion.
Before getting to SD+J's arguments: I'm puzzling over how this will affect tomorrow's hearing. My first thought was that it will not affect it at all, as the motion before the court will be Cumulus's motion for "emergency" relief (after all this time), an injunction. On further reflection, though, the lads' arguments go to the court's power to do anything at all other than dismiss the case.
But the court has been aware of this argument for a long time, and yet it continues to issue orders and schedule hearings. This tends to suggest that she has not been inclined to question her jurisdiction, which suggests she will not be inclined to postpone tomorrow's hearing while she mulls over the motion to dismiss.
This, by the way, is another reason Cumulus's failure to pursue this case vigorously (and, I would argue, competently) at the outset is costing it so dearly now. Most plaintiffs would have run into court with a properly-papered emergency motion when the first podcast dropped, or perhaps even before. Not having done so, and having agreed to delays, has given the lads time to muck up the works with a full-fledged jurisdictional argument before the motion for an injunction could be heard on the merits, placing the court in the awkward position of moving forward with a long-scheduled hearing while one party is making a jurisdictional arguement, which, if accepted after full briefing, would render that hearing a nullity.
Returning to the three grounds asserted for dismissal:
The motion to dismiss is based almost entirely on their argument that the National Labor Relations Act pre-empts Texas state contract law. They're almost certainly going to lose that argument in the long run, and, as I suggest above and elsewhere, the fact that the court is proceeding while already aware of this challenge to her authority to act, tends to indicate that she doesn't think much of it.
The second argument appears to relate solely to Cumulus's "conversion" (theft) count, arguing that under Texas law you can't convert intangible property (logo, name, website, etc.) It's one-page long. Even if meritorious, this falls into the who-cares category, as these items are covered by counts other than the conversion count.
The final argument is that the complaint is too indefinite and that Cumulus should at a minimum should be required to file "a more definite statement." Guaranteed loser.
So unless this filing somehow gives the court pause on proceeding with the hearing, which seems like a very unlikely thing for this no-nonsense, let's-get-going judge to do, it's really just more of the same that will eventually require the court to rule on the lads' NLRA pre-emption argument, which, I'm suggesting, the court has already impliedly done in proceeding to a hearing on the merits of Cumulus's claim for temporary/preliminary injunctive relief.
Kingston is such a tool. I am not shocked he stuck his foot in his mouth. I see why they hired two other real Texas lawyers to cover for him.
ReplyDeleteBut attorney statements are not admissible as any type of evidence that is not related to sanctions against said attorney.
Cumulus still has not included any actual evidence of harm. I guess they are still relying on who they are going to present at the hearing for live testimony. But them filing a few weeks late, being slow to get the hearing, passing on the initial hearing, it's hard to cry harm now when they haven't been acting like they are being irreparably harmed by TDZ.
Prediction: No renewed TRO/PI, but Cumulus will still likely win in the end for at the least Jake
I've now heard from three different "sources" who vary in range of proximity from The Mothership that 2024 will be one long victory lap for The Musers. They want to go out on top and on a nice number (30). The announcement will be made when they return from dry dock in Jan. One "source" claims not just the announcement but also their last day will be the final day before going into dry dock. Meaning they'll go on vacation and never return, allowing for the new year to be a new beginning for TT.
ReplyDeleteYMMV
@A.C.:
ReplyDeleteI would have thought so at the outset, but Cumulus's failure to insist on an extension of the initial order keeping the lads off the podcast and sosh seems to me to have been a serious error, damaging their right to any kind of emergency relief for the reasons you say. And if they don't get any preliminary relief, it's hard to see how they're going to get any permanent injunctive relief after a trial in December -- even against Jake.
I do take note of Cumulus's filing calling to the court's attention Mr. Kingston's podcast statements that the NLRB is "going to take this thing over" and hand the lads "a big win." A gigantic misstep by the lads' counsel that will not endear their cause to the heart of this judge. In general, however, unless counsel has made an utter ass of himself in open court or somehow prejudiced the proceedings by his statements outside of court, a judge will not hold a litigant's unfortunate choice of counsel against it.
Additionally damaging to the lads' prospects was Mr. Kingston's strong implication that defendants were not proceeding in good faith seeking extensions on the representation that settlement talks were continuing, suggesting that they were hopeful the NLRB would do something in the interim to relieve them of the burden of defending the case or conceding anything in a settlement.
Cumulus's brief looks good on a very brief perusal. Only thing I would have done differently would have been to highlight Mr. Kingston's ad hominem name-calling regarding Cumulus counsel.
I would expect, though, that the court will have a few choice words for Mr. Kingston tomorrow morning.
By the way: The Cumulus brief states that the Jones Day lawyer, Brian Jorgensen, was retained to assist with the settlement discussions (why?). He does not appear in the signature blocks of the Cumulus brief, which I find very odd, even if he's not lead counsel and even if Jones Day didn't write it.
Advantage beginning to tip back towards Cumulus. Not sure it's all the way back, but if it is, it's because Mr. Kingston has implied, if not outright stated, in public that defendants falsely held out the possibility of settlement in the (actually pretty crazy) hope that the NLRB would somehow stop a federal court proceeding. Judges don't like to be lied to.
I forwarded TDZs brief to a friend who is a lawyer. He characterized it as 75 pages of defendants as shouting “you’re not the boss of me” to a federal judge.
DeleteAlso thinks that Cumulus allowing the paywalled podcasts as a sign of good faith in the negotiations will weigh heavily versus the perception that TDZ is waiting for the NLRB to save them. That they’ll be able to argue “look we let them podcast because we thought we were negotiating in good faith, clearly they’re not, and that’s why we deserve a TRO, especially against Kemp who’s contract specifically bans his current actions”. He also said if judge thinks she has jurisdiction, the fact that NLRB hasn’t even reached out to Cumulus yet cuts against TDZ. She’s not going to put the case on hold to see if/when NLRB decides to do something.
C
Yeah I'm gonna call bullsh on that. I could maybe see that if the Ticket hadn't just undergone such significant upheaval with uncertain results.
ReplyDeleteRE: Brian Jorgensen
ReplyDeleteHe is the retained counsel by CUM for the NLRB charges and is the only counsel that has appeared there. He was likely retained in this local matter to examine the pre-emption arguments and draft the response to the 12b6 motion on preemption
I'm wondering if perhaps Cumulus will come loaded for bear.
ReplyDeleteThe Cumulus response mentions an expert witness deposition, so perhaps some discovery has taken place in the meantime. Unlike the lads' counsel, who seem to have a predilection to grandstand by trumpeting their evidence, Cumulus has not (unnecessarily) disclosed its own witnesses, documents, and other evidence. The lads' not-too-subtle communicating has given Cumulus much information on what they're going to face, and you can bet Dan Bennett and Jeff Catlin will be extremely well-prepared for their direct and cross-examination. And there may be surprises -- sponsors; perhaps Bob or Corby to testify about the content of these meetings. (Not beyond imagining that the lads will have subpoenaed them.)
Tomorrow will be huge, one way or the other.
You seem to take every word of a brief by cumulus, where we know they inflate and use hyperbole to be gospel.
DeleteYes, Kingston is a blow-hard who should keep his mouth shut. But the idea that he has given substantial evidence that they didn’t negotiate in good faith is absurd. Cumulus will state a fact at level 10 and then when the quote is shown they’re basing that on it’s a 2 or worse.
All cumulus’s briefs have said is “they’re not playing by the rules we want so we’re going to whine” without actually showing any harms or malfeasance.
I’m biased because I want the boys to prevail, but you’re not even trying to hide your bias with your “smilin Dan” stuff.
You can call "bulsh" all you want, A.C., and I'm not saying you're wrong. I'm only reporting what I've heard. All three people say this has been their plan well before Norm and Dan and Jake left.
ReplyDeleteThe old adage, "you're a reflection of the company you keep," seem apropos when it comes to Mr. Kingston and those who choose his energy.
ReplyDeleteNot too far a piece down the road, there's going to be some parties involved who will be roundly turned on by even some of their most ardent supporters.
Choose energy is an absolutely fantastic way of getting your energy in this world.
DeleteSorry, A.C., I misread the name. I meant to address Nothing to See Here.
ReplyDeleteThey hint around at it enough that it wouldn't surprise me a bit if it's 100% true.
ReplyDeleteCassandra,
ReplyDeleteYou have piqued my interest! Are you saying they will retire after holiday dry dock 2023 or will they announce that 2024 will be their final year? I tend to believe you have heard this from a reliable source and is in line with what I have heard one true muser say to someone privately. Please clarify timelines if you would be so kind.
@ C-minus,
ReplyDeleteYes, I do think the lads have been done dirt by their intemperate (and noisy) counsel basically admitting that they were jerking the court around.
It will weigh against them, but, in my judgment, does not excuse Cumulus's agreement to let them continue podcasting while claiming they need an emergency order to stop it. Cumulus looks nice, and dumb.
@Chad GPT
ReplyDeleteI heard both. Two claimed that when they return from dry dock '23 (Jan. 24), they will make the announcement and take a victory lap, retiring dry dock '24. The third person said the announcement would come a bit before dry dock '23, and that they would retire the day they were scheduled to leave for dry dock '23. All three said this is not a Rhyner 1st retirement/Irish Exit situation; that this has been in the works. All three talked about the 30 year mark, going out at the top of their game, and entering into new phases of life being the engine. Without being specific, I can tell you two know each other, and one is a bartender at a brew pub (not affiliated with Ben and Skin's place). All three are in some degree of proximity of Ticket personnel.
I am in no way telling anyone to hold onto their butts. This is what I've now heard three times. Nothing to See Here might very well be correct, and it's a load of b.s. Just thought I'd pass it along. Both the beginning of and the return from dry dock '23 will be here before you know it, so we'll see.
Based on the increasing intensity of George's visits to his kids and soon to be grandkids in the Austin area, and Junior and his wife's frequent visits to the mountains of NM and the fact that Gordo is quickly trying to establish a social media platform presence what Cassandra says has merit in my estimation. They also know that after taking a sabbatical they can come back with a pod in 6 months or so in which they could make nice retirement cheddar yo while being able to move to their retirement destinations.
ReplyDeleteYou see, when Cat spoke of The Finish Line to Sirois, he wasn't referring to Norm and a host spot opening up. No. It was much bigger. It's advent at that time a couple of years out but nevertheless a "known known" by those in the know, which Mikey was not.
ReplyDeleteWhy do you think the midday revamp seems so awkward (?). Because it's stop gap deal.
It's almost time, buddy. Almost time.
@ChadGPT, I think you’re really on the nose with George. Kids all out of college and now all in Austin. He’s very open about his affinity for the TX hill country. I’ve thought for awhile that the moment there’s a jub grandkid in the oven, he’s a short timer and is headed to CenTex. And then the body blow he took with his sister’s death. The segments I heard in the wake of that…the big man is hurting and needs to be closer to family. George’s days at the little one are numbered for sure. And I don’t think any of the Musers want to do their show minus one of them
ReplyDeleteAdd onto that, MCC and ChadGPT, the fact that Junior openly discusses retirement, that he has no intention of dying on the mic, and that he has other things he wants to do while he's physically and mentally able to do them. This includes living in or right near the mountains. Gordo has over the past year gone out of his way to wax poetically, at times almost in the past tense, about how he's come to realize how much this job means to him, what it's done for his life, and how special it and the relationships formed because of it are.
ReplyDeleteCassandra's info might be bulsh, but I have to admit that it's by no means tin foil hat stuff.
You wonder if George was upset when D&J departed was due to the fact that he knew if the boys stayed it would have fit his plan better of the Musers leaving and D&J sliding into their slot and leaving the station in good hands
DeleteSam, you seem to be overlooking the fact that Pman actually has experience with this, so if he reads the briefs a certain way, it's not necessarily because of bias. Also, he has been extremely critical of Cumulus' handling of the litigation, so your point is actually quite terrible.
ReplyDeleteExcept that p-man has been using a derisive nickname for Dan day 1. Yes, he has been critical of Cumulus, but it has always felt like he was cheering for Cumulus to get this figured out.
DeleteAh yes, I forgot he’s the only one who went to law school in the world. We’re lucky to have you here to put anyone who disagrees with him in their place.
DeleteWhen the initial brief came out it was full of inflammatory language and factual…misstatements (lies). But you all ate it up because you don’t want to believe that people you use pejorative nicknames for might be right.
Dan and Jake are either really done with radio, or the musers news isn't true is my guess. I would think the Musers being that close to retirement would have kept Dan and Jake on board.
ReplyDeleteIf true and that's a huge if, you are assuming Dan and Jake knew.
DeleteExcept if you are being low balled on a salary you think is commensurate to the position. Thus it is all about the $$$.
DeleteWhere are our courtroom updates
ReplyDeleteYes. Hearing should have been going on about an hour. Judge may be one who allows no phone use at all in the courtroom. (Heaven save you if your phone rings.). And, like last time, they may have started in chambers.
ReplyDeleteSam, you sound delusional. I said in the last post that I really enjoyed BaD and THZ and wish the show was still on the Ticket. That has nothing to do with who I think is right or how they have behaved in this litigation. It is ridiculous to claim that Cumulus is the one that has used inflammatory language in its filings. They have been about as staid as possible -- possibly to their detriment. D&J's attorneys on the other hand have filed numerous sneering briefs, to say nothing of the out of court comments by the attorneys.
ReplyDeleteNot everything in the world has to be part of your political ideology. Unions and leftism and FTM sentiments and whatever else will still exist even if two radio hosts lose a civil lawsuit. It's going to be OK.
Calm down man - there’s plenty of boot left for you to lick. Dan Bennett damn near perjured himself with that first filing so maybe take a step back on “sneering briefs” - at least they’re not full of lies and hyperbole.
DeleteWhat are the lies? How does one "damn near" perjure themselves? Don't be coy now.
ReplyDeleteThe complaint says they are actively soliciting advertisers to leave the ticket. Bennett swears to this fact. Yet advertisers are testifying on behalf of Dan and Jake saying that’s not true.
DeleteSo yeah, if it’s not true and Dan Bennett swears it is that’s perjury. It’ll never go anywhere but don’t act like they’re playing this 100% by the facts.
"If it's not true." Kind of a big if that you just conveniently assume since it fits your narrative. Also, being wrong under oath is not perjury.
ReplyDeleteThis comment has been removed by a blog administrator.
Delete@arlo g
ReplyDeleteI would think that if Musers were near retirement and Dan and Jake were about to bounce from the ticket, they would have let them know.
Not to nitpick, but posters above are assuming that Bennett is talking about either Eatzis or Alamo Draft House, the 2 advertisers that TDZ wanted to call as witnesses. What if there’s another client (or clients) that Dan or Jake called? I’ve heard a rumor, but it’s so thinly sourced (it literally goes thru 3 people, all with 2nd hand knowledge) that Dan called a bunch of TT clients right after his departure. More than just Eatzis and Alamo.
ReplyDeleteC
Sam, I know you wanted to storm off in a hissy with the last word and a juicy expletive, but I do need one last response from you.
ReplyDeletePlease tell me you are not an attorney. It will help me sleep better.
No. Worse - his daddy is.
DeleteHoran has, for some reason we will never know, found a reason he sees a conflict in ruling on any matters in this suit, so he’s asked another magistrate to be assigned. Magistrate judges handle a lot of the day to day in civil cases (basically everything except trial, often). Their decisions can be appealed to the district judge with varying standards of review depending on the type of ruling (dispositive motions are different than, say, discovery motions)
ReplyDeleteDoes the recusal delay things again? I’m just curious how and when this all ends.
ReplyDeleteShouldn’t delay, as the district judge is presently handling everything herself.
ReplyDeleteWas this morning's hearing before the Magistrate Judge? The timing of the recusal letter is curious if not.
ReplyDeleteMy understanding was that it was in front of the District Judge. Usually there’s an order of assignment of a case to a magistrate and I don’t believe I’ve seen one in this case.
ReplyDeleteHoran was a partner at Jones Day. Would that be a reason?
ReplyDeleteJones Day may be a reason. A partner at my firm was elected as Judge and had to recuse for a year for any cases our firm was involved in. It's a common reason for recusal. That was state court.
ReplyDeleteHoran was at JD over a decade ago. For Federal Court it might be longer or he might have worked in the same department as Jorgensen.
Whose daddy is what
ReplyDeleteNo reports as of 1:45 p.m. Possibly on lunch break right now. If matters had concluded, I would at least have expected a minute order noting that the hearing was held, arguments heard, evidence taken, etc., even if no decision were forthcoming. So, my ass is assuming that the matter has not concluded for the day.
ReplyDeleteTold ya Sam Hale was in here. That is, ex-Ticker Man, Sam Hale. The one who Judge Junior ruled to STFU for a month or few because, well, I'll let him tell the story in his own special way. The same Sam Hale who is VERY active on reddit Ticket and reddit Dumb Zone. Ever toxic (as he's shown here....this is the first time he's actually used his regular handle...but not the first time he's commented....no, that's done under a series of nom de plumes), quick with the ad hominem, how shall we charitably say, "curious" rhetorical stratagems, etc., et alia, ad infinitum. Hiya, Sam! Oh yeah, he's very much inclined to whine, piss AND moan about MTC and Pman. Yet, here he is. He's been here for years. Just trollin' away. Haven't ya, Sam. You bet, turbo.
ReplyDeleteSay, Sam, we sure could use someone on the penalty kill. Heard your poke check needs work. That's OK. Coach can fix 'er up in no time. He's good like that.
Yes. You sure told us. Amazing.
ReplyDeleteThe Sam Hale that does FC Dallas stuff? That’s where he ended up? He was terrible on the ticket. He knifed the other Sam in the back.
ReplyDeleteAlso was a thief and justified it as “radio capitalism”.
ReplyDeleteGood riddance.
That is very funny if it is Sam Hale.
ReplyDeleteWell, the day is over, and I've heard nothing. Can't blame the Confessor for not wanting to spend the day sitting in a courthouse, and I myself couldn't make it, much as I would have liked to. No orders have been posted on the non-PACER site that I've been reviewing, and the Justia site is even further behind.
ReplyDeleteI also have not seen any new accounts reporting on the hearing.
So I have no idea what happened today. Will have to wait until an order is posted. Even if the court did not rule today, I would expect a minute order noting that the proceeding was held.
Sounds like Dan and Jake won the issue of the day. There will be no injunction keeping the Dumb Zone from putting out episodes. The Dumb Zone lives.
ReplyDeleteThere’s also a picture a lawyer who shall not be named tweeted of two smiling men (well one smiling and one holding an iPod nano). No idea what it means but it’s out there.
DeleteI believe you’re referring to the picture of SJ and IPND, no?
DeleteStill no order listed on Court Listener. If DZ Fan is correct (have no reason to think he isn't), I'd be interested to know whether the court denied the injunction in open court, or simply did not rule on the motion, which would also have the effect of permitting continued podcasts.
ReplyDeleteIn any event, apparently at the very least a temporary victory for the lads.
Provisional congratulations to Dan and Jake.
Can't wait to see this room eat itself.
ReplyDeletePMan held out as some expert legal wizard when he makes statements that even moronic non-lawyers can identify as patently stupid. You expected the judge in this case to rule on things that hadn't yet been argued? Jesus man. Maybe there's a reason you no longer practice law.
You're wondering to what I refer?
ReplyDelete"But the court has been aware of this argument for a long time, and yet it continues to issue orders and schedule hearings. This tends to suggest that she has not been inclined to question her jurisdiction, which suggests she will not be inclined to postpone tomorrow's hearing while she mulls over the motion to dismiss."
No argument has been made to the court to this effect (prior to this week's filings). No request of the court has been made to this effect (prior to this week's filings). Yet you think she should simply rule. On what grounds? On what argument? Literally. There has been ZERO request for the judge to take action to dismiss until the docs filed this week. And the filings this week weren't asking her to postpone today's hearing. Man. Srsly. People on here think you're good at this
Stay retired.
Hey Kingston. Ya, it's you. You've been trolling like Sammy has for a piece now. Can't help yourself, can you. Well, it's your way now, isn't it. It was that last jab that gave away the game. Stylistically, how shall we say, had a certain pathology to it. Sad thing is....all those sad sacks, including your clients, well, they haven't a clue as to what you're up to. Poor babies. Pawns in your thirsty game. See ya at Sunday's game. We're a lace 'em up tight bunch. Aren't we, Phildo? Bet Your ass we are.
ReplyDeleteHey TC. Welcome back. Such a smart guy.
ReplyDeleteMake sure you drink a lot of electrolytes when you wake up, Phillip. I imagine that hangover will be a biatch. You dig?
ReplyDeleteJesus, you asshats make this site unreadable. Take the agendas, the name calling, and the personal attacks elsewhere and let the adults in the room have a civilized conversation.
ReplyDeleteSecond that, children’s table is Reddit
DeleteSo, just to say, courts examine their own jurisdiction sua sponte, at least they are supposed to. That’s just how this works.
ReplyDeleteSomeone please tell me when I’m supposed to drop. I’ve been waiting for months. My calf is getting really sore.
ReplyDeleteIs it unusual for a hearing to take place and the result of that hearing to be so hidden or unknown?
ReplyDeleteAccording to a Reddit user who was at the hearing yesterday, Cat testified that ratings are down 45% middays and 30% overall. See my previous post about just saying “the ratings are high, everything at TT is great and all their decisions are the right ones”. That’s a shocking drop in a short period of time, and right as summer ends and football kicks off, which is normally a ratings boost.
ReplyDeleteSource:
https://reddit.com/r/thedumbzone/s/lLmh4vxrZB
Also important note from the hearing - Dan testified that they tried to keep this private and not complain about their situation or the way JV folks were paid/treated because he “wanted to be cool and didn’t want to hurt The Ticket”. I think that sentence says a lot about why people are pretty fired up about the state of the station currently.
DeleteBefore establishing the Norton Volume on American Literature, M. H. Abrams was known as a genius mind teaching at Cornell. Among his students were Thomas Pynchon, the novelist, and Harold Bloom, the academic who is attributed more or less with establishing the literary canon. In the recent past, one of Bloom’s students complained that he was “boring” on Dr. Bloom’s RateMyProfessor page.
ReplyDeletehttps://texaslawbook.net/ticket-denied-tro-against-ex-hosts-sports-podcast/
ReplyDeleteNo matter what happened in TDZ/Cumulus trial yesterday at least we can all say that a great god fearing man and fellow Texan Ken Paxton was acquitted of all charges. His wife, mistress, contractor who he funneled state assets to are all grateful for the realization that ULTRAMAGA is the only way to salvation. Praise thee Oh Lord and let's pour one out for Lauren Boebert while we are at it.
ReplyDeleteI don't get Cat's ratings statements when we just saw the Nielsen ratings showing the Ticket still killing it.
ReplyDeletePerhaps a preview of things to come. I assume they get more current ratings than the last published one
ReplyDeleteBased on those notes, no evidence of harm. Lower ratings is because Norm and D+J left and replaced them with lesser talent, not necessarily because there is a competing podcast. Every lawyer knows correlation does NOT equal causation.
ReplyDeleteMean emails to Cat? That's not evidence of harm
It looks like the advertisers were not called as witnesses. Therefore, any testimony about advertising poaching would have been hearsay.
Cumulus may have an ultimate case, but at this point there appears to be no evidence that the TRO/PI needs to be issued. Therefore, denying the TRO was the right call
Well, the ratings are down, but they are (as of the last book), #1 - both things can be true.
ReplyDeleteMay was a ridiculously tall, double digit share number, and was always going to come back to Earth, and they appropriately have been since. So, without the context of Cat's quote I can't tell you what point he's attempting to make or how it relates to the question that was asked him.
People tend to forget this time last year, TT wasn't #1 in any day part, and historically is only rarely #1 in a couple of dayparts - 2023 overall has been a record breaking ratings year for a nearly 30 year old station.
There's still the actual trial in December and where all the real risk lies, the pay off for D&J of the TRO denial is they now have income to pay what I would assume is not cheap legal work - "billable hours"!
I would ordinarily have deleted RumHam’s intemperate and wrong comments of early this morning. But since he has attacked me personally and professionally, I thought it would be imprudent to let his statements go without response. Unfortunately, that may only be done at length. Unless one is really interested in federal jurisdictional issues with the intensity RumHam displayed, I urge you to skip my next few comments.
ReplyDelete@RumHam:
ReplyDeleteRumHam, RumHam, my dear Confessor, why so harsh? Why so angry at what you perceive to be Your Plainsman’s legal errors? Perhaps if I can explain a few things about federal jurisdiction and the record in this case it will sweeten your attitude towards the proprietor here. I’ve tried to keep procedural matters in this case as non-technical as possible, but your critique depends materially on some technical matters of which you appear to be unaware.
The nub of the gist of your opinion that I operate at a sub-moron level in my ruminations on this matter are summed up thus in your communiques of 12:34 and 12:41 this morning: “You expected the judge in this case to rule on things that hadn't yet been argued?” (Referring, apparently, to the defendants’ position that court’s jurisdiction in the matter was pre-empted by the National Labor Relations Act.) And your argument for “hadn’t yet been argued” was that: “No argument has been made to the court to this effect (prior to this week's filings). No request of the court has been made to this effect (prior to this week's filings). Yet you think she should simply rule. On what grounds? On what argument? Literally. There has been ZERO request for the judge to take action to dismiss until the docs filed this week.”
Before explaining why you are in error, I need to point out not one, but two straw-man arguments in your blasts: First, I don’t think commenters believe me to be an “expert legal wizard” which impression it is necessary for you to contradict. Second, I have never stated that I “expected the court to rule” on defendants’ NLRA argument, at least in the way you are using the word “rule,” i.e., rule on an express motion. Instead, I stated exactly what appeared in the quote from me you seem to find so inexpert: “But the court has been aware of this [NLRA] argument for a long time, and yet it continues to issue orders and schedule hearings. This tends to suggest that she has not been inclined to question her jurisdiction, which suggests she will not be inclined to postpone tomorrow's hearing while she mulls over the motion to dismiss.” Not a syllable of that quotation suggests that I expected her to make a formal ruling on defendants’ argument, only that, having been made aware of it (see next paragraphs), she must not have thought much of defendants’ argument because she was acting like she had jurisdiction.
She became aware of it well before the motion to dismiss that you find so critical. Before I explain why this is important, let’s count the filings:
August 10: Defendants’ Response in Opposition to Injunctive Relief: pp. 17-24, plus the attached NLRB complaints. (Actually, according to the Court Listener docket, this was filed three times on the same day, twice for Jake, once for Dan.) This filing states that “the large majority of Plaintiff’s claims are preempted by the National Labor Relation Board’s (“NLRB”) exclusive and preexisting jurisdiction” (pp. 4-5) and “cannot be adjudicated by this Court” (p. 13) and “[t]he Court should not attempt to exercise jurisdiction over [the claims] even for the purposes of emergency relief.” (p. 25)
August 15: Defendants’ Amended Response in Opposition to Plaintiff’s Original and Renewed Application for Injunctive Relief, pp. 15-21, the first heading of which states: “This Court currently lacks subject-matter jurisdiction over the non-compete and non-disparagement claims due to Garmon preemption and the NLRB’s exclusive jurisdiction.”
And finally, September 14, the Motion to Dismiss Pursuant to Rule 12(b)(1) and Rule 12(b)(6) that you believe to be the only thing that could possibly require the Court to rule on its own jurisdiction.
CONTINUED IN NEXT COMMENT
CONTINUED FROM PRIOR COMMENT
ReplyDeleteNow, we have to understand what jurisdiction means in this context. As defendants’ filings explicitly and correctly state, what is at issue in their argument is what is called “subject-matter jurisdiction.” The federal courts are courts of limited jurisdiction – they may only hear the cases that a constitution or statute authorizes them to hear. Susquehanna recited two grounds for subject-matter jurisdiction in this case: (1) plaintiff and defendants were citizens of different states (“diversity jurisdiction”); and (2) for the intellectual property matters, the case raises questions of federal law (“federal question jurisdiction”).
Several important things to understand:
Subject-matter jurisdiction is really, really, super important. A court either has subject-matter jurisdiction, or it doesn’t, at every point in the case. It doesn’t float around in the air and only appear as an issue when a party has made a motion calling it into question.
Subject-matter jurisdiction may not be waived. That is, the parties cannot agree that the court has subject-matter jurisdiction, or may eliminate it as an issue by not raising it in a motion. The court may determine the existence or non-existence of subject-matter jurisdiction on its own motion (“sua sponte”) at any time (this alone defeats your criticisms), and any party may raise it for the first time at any time during the case, including on appeal.
Now: Subject-matter jurisdiction is subject to defeat even in cases where the statute authorizes the court to act, and one of those limitations is federal preemption, which is a doctrine originating in the U.S. Constitution’s Supremacy Clause, which trumps the jurisdictional statutes. This is the argument made by Dan and Jake here.
A judgment or other order rendered in a case in which the court does not have subject-matter jurisdiction is VOID. If the court does not have subject-matter jurisdiction, then any judgment for plaintiff or the lads in this case, or any other order – other than an order dismissing the case for lack of jurisdiction – is absolutely without effect. It’s like the case never happened, and if a court proceeds without subject-matter jurisdiction has wasted its and everyone else’s time, and perhaps made other damaging errors, by proceeding.
This is why, in the words of the United States Supreme Court, all courts have an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” (Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).)
So, my dear RumHam, when the lads explicitly told the court it did not have subject- matter jurisdiction, the Court was placed on notice that, if that argument had merit, it was in danger of proceeding in a case in which it was not authorized to act, and it had the independent obligation to determine whether jurisdiction exists even if no one had filed a motion.
As I was reading matters, while the Court did not issue an explicit “ruling” on a “motion” which you seem to find determinative, it seemed to me that the fact that she continued to issue orders and schedule hearings on the merits of the claims (i.e., on Susquehanna’s motions) indicated that she didn’t think enough of defendants’ jurisdictional arguments to initiate any kind of formal proceeding to “rule” on them – implicitly rejecting the arguments. Which is what I said in the excerpt you quoted.
So when you ask: “You expected the judge in this case to rule on things that hadn't yet been argued?” I answer: (1) Jake and Dan had argued them TWICE before it filed the motion to dismiss, and (2) yeah, I kinda do, even if only by implication, because the court must always ensure that it has subject-matter jurisdiction at every point in the case, and especially here because Dan and Jake stepped right up in two lengthy pre-hearing filings and said “this here court doesn’t have subject-matter jurisdiction.”
I trust the foregoing will inspire a more charitable view of Your Plainsman’s analysis.
Hard to believe that it was, what, a year and change ago, if that, that Jake was gushing over Cat and Bennett and Cumulus for being so understanding and supportive about the situation with his then newborn son. Things really can and do go sideways, don't they.
ReplyDeleteI honestly think there is no Team Good Guys here. I believe both sides have at times acted in bad faith. I also think that from the onset this has been very personal (again, both sides), regardless of what Cat, Dan, or anyone else says. Both sides have been playing semantics, both have played the victim, and both sides appear to seek the ruination of the other -- again, despite claims to the contrary.
As I said at the top, things really can and do go sideways. In this case, sadly, irrevocably so.
Hear hear and a robust "I third that" to OverItAlready's admonition. The Dali-esque trolling is so very very dull.
Fairly certain, Plainsman, your critic was the same ex-Ticket employee who recently graced MTC with vitriol, errant assumptions, ad hominems, expletives, and an all around sophomoric mode of expression. I believe Junior's sentence was too lax. The lad failed to learn from his previous missteps.
ReplyDeleteSam Hale shots will never not be funny. He cleaned up his internet image presence today. There was a good one of him and Balis.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteYou might not be. The connection between your username and the Ticket personality made me chuckle.
ReplyDeleteThe move to using names instead of anonymous has created some entertaining bits. I like it. Understand others see it as immature and getting away from the matter at hand.
Wait, Sam didn’t know people knew that was him? On Reddit too? I always thought it was obvious, like he wasn’t trying to hide.
ReplyDeleteIf it was him he has a penchant for being silenced.
ReplyDeleteIt’s definitely him.
ReplyDeleteWild stuff.
ReplyDeleteIf so.
Did Pman know and that is why he hit him with the telephone book of responses?
And how would an account attributed to him know anything to make comments here? This could be an obvious answer but still curious how a former could be a knower.
I've lost track. Who do we think is who? And why? I see references to Sam Hale, TC, one of the lads' lawyers. It's all somewhat sailed past me. And why this mystery guy's hostility? Thanks.
ReplyDeleteCorrection. Plan responded to the commenter that someone somehow linked to Phil.
ReplyDeleteThis makes more sense. I think.
Pman. Not Plan. That is the thing with the ability to pick names.
ReplyDeleteThere is one confessor here who usually knows how to connect it all. Rightly or wrongly. I things it’s entertaining.
So for the legal minds here, is it surprising that D&J won the hearing yesterday and what does that mean going forward.
ReplyDeleteWe legal minds here don't find it surprise it at all that D&J won the hearing yesterday, it's only further proof that their representation has no clue what they're doing and Cumulus is going in full control.
ReplyDelete@C-
ReplyDeleteNo one cares who you send briefs to and what they think. They are currently batting .000 or close to.
We know how you feel about non competes but sit on the bench for a while. You’re one of the posters making MTC look like crap.
Shoopie. I too think he adds nothing and loves paragraphs that repeat previous comments.
ReplyDeleteBut this was mean. And funny.
this site is weird
ReplyDeleteOur pet’s heads are falling off. I’m starting to agree with blogger accounts….
ReplyDeleteDr. Samuel Johnson is right about Olson Johnson's being right. Name accounts seem to cause more confusion or trolling. In the past it seemed most anoms' styles could be deciphered; thus followed more fluidly. Or maybe there were less confessors/commenters trying to score a screenwriting credit on Suits. Now, my lurking feels like working.
ReplyDeleteLurker I will help define what you are trying to say. It’s a cut and paste from before.
ReplyDeleteThe move to using names instead of anonymous has created some entertaining bits. I like it. Understand others see it as immature and getting away from the matter at hand
Shoopie, 9pm is pretty late for a 4 year old to still be up and about. Should I call CPS?
ReplyDeleteShoopie makes a good point. Have Cumless’ legal dream team scored ANY victory for their client up to this point in the proceedings? Seems like hapless Bruenig and Kingston naught actually not be so hapless after all.
ReplyDeleteSorry, Cumulus, not Cumless.
ReplyDeleteDid you also intend "might" in lieu of "naught"?
ReplyDeleteOnce again, some fool making idiot stick comments and atta boying their own comment under another name. Sunday Funday began early for at least one of us, it seems.
You must either be extremely bored or live out a rather sad existence. Or, more likely, it's a combo platter.
New post up.
ReplyDeleteIt contains a lengthy analysis of what we know and don't know, where matters stand, and what might come next, with the caveat that we don't really now what went on in the hearing and what the court actually ended up doing. So lots of guesswork.
If you're not interested in these technical matters -- please, I beg you, skip my commentary.
Although the ginger is nice.
Appears to be squarely in McLearin’s demo.
ReplyDelete