Transcript of status conference - Dismissal of lawsuit

[Jack]

After reading the latest briefs from both sides and the transcript below, I feel a bit of sympathy for Bob and Gailon. It must be stressful to be so far over their heads in this matter. It’s a shame Gerry Spence couldn’t have come to their rescue.

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

Three Angels Broadcasting
Network, Inc., and
Danny Lee Shelton,
Plaintiffs,

vs.


Gailon Arthur Joy,
and Robert Pickle,
Defendants.



BEFORE: The Honorable F. Dennis Saylor, IV

Status conference/Motion for Voluntary Dismissal

United States District Court
Courtroom No. 2
595 Main Street
Worcester, Massachusetts
October 30, 2008

Marianne Kusa-Ryll, RDR, CRR
Official Court Reporter
United States District Court
595 Main Street, Room 514A
Worcester, MA 01608-2093
508-929-3399
Mechanical Steno - Transcript by Computer

APPEARANCES:
(via telephone)
Siegel, Brill, Greupner, Duffy & Foster, P.A.
M. Gregory Simpson, Esquire
100 Washington Avenue South, Suite 1300
Minneapolis, Minnesota 55401
for the Plaintiffs, Three Angels Broadcasting Network, Inc.,
and Danny Lee Shelton

Fierst, Pucci & Kane, LLP
John P. Pucci, Esquire
64 Gothic Street, Suite 4
Northampton, Massachusetts 01060
for the Plaintiffs, Three Angels Broadcasting Network, Inc.,
and Danny Lee Shelton

(via telephone)
Gailon Arthur Joy
P.O. Box 1425
Sterling, Massachusetts 01564
Pro Se

(via telephone)
Robert Pickle
1354 County Highway 21
Halstad, Minnesota 56548
Pro Se


P R O C E E D I N G S

THE CLERK: Case No. 07-40098, Three Angels
Broadcasting versus Joy.

Counsel and defendants, please identify yourself for
the record.

MR. SIMPSON: This is M. Gregory Simpson, on behalf of
the plaintiffs, Three Angels Broadcasting Network and Danny Lee
Shelton.

MR. PUCCI: And John Pucci here in chambers, on behalf
of the same parties.

THE COURT: Good afternoon.

MR. JOY: Gailon Arthur Joy, pro se.

THE COURT: Good afternoon.

MR. PICKLE: And Bob Pickle, pro se.

THE COURT: All right. Good afternoon.

All right. This is -- it was originally scheduled as
a status conference in this case. I now have pending a motion
for a voluntary dismissal.

Do the defendants wish to be heard on that? I've read
the papers.

Mr. Pickle and Mr. Joy?

MR. JOY: Yes, sir.

THE COURT: Who -- who's this?

MR. JOY: I'm sorry. This is Mr. Joy, sir.

THE COURT: Yes.

MR. JOY: Your Honor, I think you'll find that we have
filed an opposition, including a memorandum and affidavits
along with exhibits.

THE COURT: When was that filed?

MR. JOY: It was --

THE COURT: Oh, I'm sorry. Yes, I did see it. I'm
sorry. Yes.

MR. JOY: I'm sorry.

THE COURT: Yes. Okay.

MR. JOY: In summary, the difficulty here is that this
is really just another maneuver on the part of the plaintiffs
to very simply avoid their duty of discovery, and they're doing
it at a point in the case where, frankly, we should have been
close to a completion, which the case law clearly indicates is
an inappropriate situation and prejudices the defendants'
scenario, particularly reserve the right to relitigate at a
future point.

So, for that reason, we feel it's imperative that
the -- that the -- obviously, the dismissal be denied to
preserve our rights, obviously, and to prevent the -- the great
prejudice that has incurred to us, if this had to be
relitigated in the future, which frankly we believe it's going
to have to be.

THE COURT: All right. Anything else?

MR. SIMPSON: This is Mr. Simpson --

THE COURT: Well, before I --

MR. SIMPSON: Sure.

THE COURT: Anything else from the defendants?

MR. JOY: Yes.

THE COURT: Okay.

MR. JOY: I think -- you know, I think we've outlined
specifically our basis for that in the memorandum, in
support -- or pardon me -- in our opposition, and it's quite
exhaustive. I'm sure you don't want us to go through that, but
in any event, I think it pretty well outlines the case law as
well as the basis for the case law applying in this particular
case where it's already over 18 months in, and we're getting
ready for trial.

THE COURT: All right. Mr. Simpson, why should this
not be with prejudice, if I dismiss it?

MR. SIMPSON: Well, let me just begin by saying that
the -- that I think that is the issue whether it should be with
or without prejudice. If this is -- to my reading of the case
law, it's a factor of the test, so it's within the discretion
of the court to determine whether it should be with or without
prejudice.

The case looks a lot older than it really is, because
it was filed in May of '07, and you had us submit
interrogatories and some documents exchanged and mandatory
discovery exchange; and then Mr. Joy filed for bankruptcy, and
there was a stay in effect until almost December; and then
there was a four-month period where we were working on getting
that confidentiality order out. When that was finally signed,
and, in fact, it was already April, and then there has been a
period of document discovery since then, and depositions were
scheduled, and they were canceled, because there was -- because
the document exchange had not been completed.

So, it's not as old as -- as the date of filing would
indicate. We're actually at the preliminary stages in terms of
discovery. The factor test, if you run through it, and I'm
sure you will, would indicate that it should be, I think,
without prejudice. If it's with prejudice, I don't think the
litigation ends, because there has been repeated threats,
including in the brief that was just filed today by Mr. Pickle
and Mr. Joy, that there will be a malicious prosecution
counterclaim or a new lawsuit filed raising that issue, Judge;
and so if the case is dismissed without prejudice, there
would -- the elements of that tort would not be present,
because one of the elements of a malicious prosecution tort is
dismissal of the underlying -- there's a favorable resolution
of the underlying lawsuit.

So, if the lawsuit is resolved with prejudice, that
could give them one of the elements necessary to continue
this -- this dispute, and the dispute would not end.

The question, I believe, for the court is a legal
matter; and so, that would be a strategic or a tactical reason
why the case would not end. There would still be litigation if
the case were not dismissed without prejudice.

As a legal matter, Rule 41 is concerned with
alleviating any prejudice to the defendants, and the Court is
empowered to impose such terms and conditions as it feels will
alleviate any prejudice that results from a dismissal. So, the
question really is whether dismissal with prejudice is
necessary to alleviate any prejudice.

And the cases say that in talking about prejudice,
we're not talking about -- we're not talking about the prospect
of a second lawsuit. That's not the kind of prejudice that the
rule is concerned with, nor is it concerned with a technical
advantage to the plaintiff. That should not bar dismissal.
That's not the kind of prejudice we're talking about in legal
prejudice; that is, are they worse off as a legal matter if
it's dismissed with prejudice versus without prejudice. In
other words, is it necessary to dismiss it with prejudice in
order to alleviate them from legal prejudice, and the answer to
that is just simply no. They are no worse off than they were
before the lawsuit began. They're in exactly the same legal
position whether -- in fact, they're in a better position
legally than when the case began, because the three years
statute of limitations for defamation has expired as to some of
the, if not all, of the original statements that they've made.

So, there is no legal prejudice, which is what the
rule is concerned about, if the case were to be dismissed
without prejudice.

THE COURT: Well, my concern, obviously, is I -- I
strongly encourage both sides to, if that's what they want to
do, to walk away from this dispute in whole or in part. My
concern, obviously, is I don't know, and I'm just -- I'm not
stating this because I -- I mean this in a pejorative way, or I
don't -- I have any particular reason to distrust you, but I'm
concerned that the same claim or -- or -- or a similar claim
could simply be brought in some other forum, and that's the
most obvious danger to me is that there's, you know, the
possibility of some tactical issue going on here where
plaintiffs decide they'd rather be in a different court.

MR. PICKLE: Your Honor, could I address that?

THE COURT: Well, let me hear from Mr. Simpson first.

MR. SIMPSON: Well, I -- I can assure you that that's
not the concern. The only concern is that these gentlemen have
indicated throughout and in the most recent filing that they
intend to sue us for malicious prosecution, and they said that
they were going to file counterclaims in this lawsuit, and they
said then they were going to -- now, they said they're going to
commence a separate lawsuit, but if we don't have at least a
prospect of raising affirmative claims against them, I think
that would keep them in check. Maybe it would keep them in
check. They would have to think twice about filing a lawsuit.
I can tell you that there is no forum shopping going on, and I
think Rule 41 also has some -- something to say about that.

The costs -- if we bring a second lawsuit after
dismissing the first one, costs would ordinarily be imposed.
We would have to reimburse them for all of that that occurred
in the first lawsuit. So, there's -- so, there's mechanisms
for dealing with that, and I think we would have quite a bit of
explaining to do to a subsequent court if we were -- if we were
to pull -- pull a fast one, and I can just tell you that that's
not -- that's not the intent.

THE COURT: All right. I'm sorry. Do one of the
defendants wish to be heard?

MR. PICKLE: Yes, your Honor. This is Bob Pickle.

THE COURT: Yes.

MR. PICKLE: In our memorandum, we've outlined eight
different factors, I believe, that are supposed to be taken
into consideration regarding legal prejudice or that different
circuits have taken into consideration. One of those is
adequacy of the plaintiffs' explanation for the need to
dismiss; and one of the explanations they gave is that they've
achieved one of the goals of their -- their suit. That is just
one -- one aspect that we bring out in the memorandum. And
they say that through the bankruptcy, they bought the domain
names, save3abn.com and save3abn.org. What they don't tell the
Court is that there are at least 16 times as many save3abn
websites now than when the plaintiffs filed suit, and these
other websites were in operation prior to their purchase of
save3abn.com.

And so I do have definite concern of a dismissal of
this case without prejudice, and their referencing, well, you
know, they say that, you know, a technical -- if they gain a
technical advantage, that shouldn't be an obstacle. You know,
that just raises red flags to me. And what you express about
them raising the same claims in another forum, I really don't
want to face that. I'd like to have the -- these issues
resolved once and for all.

MR. SIMPSON: May I just say, your Honor --

THE COURT: Yes.

MR. SIMPSON: -- I wouldn't oppose the court imposing
a restriction that if we were to bring an affirmative claim
arising out of the same events that it would have to be brought
in the same court. That would be -- that would seem perfectly
fine and appropriate as a remedy as a -- to make sure we don't
do that. I think that if -- if the plaintiffs -- I mean the
defendants here, Mr. Pickle and Mr. Joy, were to bring a
separate lawsuit for malicious prosecution, it probably would
have to be brought in state court, because they wouldn't
meet -- well, I'm just thinking they wouldn't have diversity or
jurisdiction. Maybe they would be able to get jurisdiction in
the federal court. So, it's not -- it's not -- if we
were -- if the plaintiffs were to want to raise their
defamation claims by way of a counterclaim, as a defensive
matter, we couldn't guarantee that it would be in the same
court. It would be in your court, but I think if we -- I think
the court could impose a restriction on dismissal that if we
were to refile the same claims or any claims arising out of the
same operative set of facts, it would have to be brought in the
same court. I think that would be appropriate.

THE COURT: All right. Here's what I'm going to do.
I'm going to grant the motion. I'm going to dismiss it without
prejudice and with some conditions, which include the condition
that any claims brought by the plaintiffs, based on the same
facts and circumstances or -- or -- or nucleus of operative
events may only be brought in the Central Division of
Massachusetts, but let me be more formal about that.

The motion for voluntary dismissal is granted. I
order that this lawsuit be dismissed without prejudice. I make
no finding of any kind as to the merits or lack of merits of
any of the claims or factual defenses set forth in the
pleadings, and I'm dismissing the claim principally based on
the representation by the plaintiff that there is no longer any
purpose for the litigation, because plaintiffs do not believe
that they can accomplish -- or achieve any meaningful relief
based on the facts and circumstances as they now exist,
including, but not limited to, the bankruptcy of one of the
defendants.

I am imposing this dismissal with the condition that
any claim or claims brought by plaintiffs based on the same or
similar facts and circumstances may only be brought in the
Central Division of the District of Massachusetts, so that if
this lawsuit in some ways comes back to life, it will be in
front of me, and I'll have all the facts and circumstances at
my disposal at that point and can make such orders as I think
are just under the circumstances.

I will order that all materials produced in discovery
that were designated as confidential under the confidentiality
and protective order issued in this case on April 17th will be
returned, as set forth in that order.

Destruction of the documents will only be permitted if
consistent with the terms of the order; and similarly, any
photocopying or other copying of any such materials will only
be permitted if permitted under that order.

Any pending third-party subpoenas are deemed moot, and
the party will -- any party having issued such a third-party
subpoena will take reasonable steps to notify the recipient of
the subpoena that the lawsuit has been dismissed, and the
subpoenas are no longer in effect.

MR. PICKLE: Your Honor, could I -- could I --

THE COURT: Let me -- let me just finish. And any
records that were delivered under seal and that are in the
custody of the magistrate judge shall be returned to the party
that produced those documents.

Yes, sir. Is this Mr. Pickle?

MR. PICKLE: Yes, it is.

THE COURT: Yes.

MR. PICKLE: Your Honor, one of the concerns that the
case law brings up is that -- see -- a voluntarily dismissal
without prejudice, one of the questions is well, will there be
plain legal prejudice to the defendants, and one of the things
that is, like, undue expense.

We've had -- and one of the factors they look at is
amount of time and effort and expense the defendants have
expended. We bring this out in our memorandum. Okay. What
the -- what the plaintiffs are doing -- see, our basis for
counterclaim --

THE COURT: Hold on. Hold on, Mr. Pickle. There's no
counterclaim filed, as I understand; is that right?

MR. PUCCI: Right.

THE COURT: In this case.

MR. PICKLE: That is correct, your Honor.

THE COURT: You know, and -- and, you know, whether
you have some future claim against the plaintiffs, I make no
comment on of any kind whatsoever.

MR. PICKLE: It is --

THE COURT: In terms of -- just let -- let me, if I
can. Just in terms of your costs and expense and attorney's
fees, my understanding is that but for a brief appearance by
Mr. Heal, I think, at the beginning of the litigation, you've
been proceeding pro se; and let me add as a further condition
that I will at least permit defendants to seek recovery of
reasonable costs, fees, expenses -- reasonable cost of
attorney's fees or expenses, if they file something within 21
days of the date of this order. I'm not promising that I will
allow those to be paid, and I'll permit plaintiffs to oppose
it, but I will give you the opportunity to make that argument
formally and with a specific itemized detailing of your costs
and expenses.

MR. PICKLE: Okay. Your Honor, if the discovery in
this case and work product is not transferable to -- to the
other -- the future actions, either by the plaintiff or
ourselves, that would prejudice the defendants.

THE COURT: Well, it's -- it is transferable, unless
it's subject to the confidentiality order. If it's subject to
the confidentiality order, you have to return it, or do
whatever the order says you're supposed to do with it; and, you
know, you have gained presumably a certain amount of
information. You're not required to erase it from your brain,
and you can use it consistent with the terms of the order
as -- as may be permitted by that order, but that's --

MR. PICKLE: That would mean, your Honor, that we
would have to spend months and months litigating again to get
the documents from Remnant, for example.

THE COURT: There is going to be no lawsuit pending.

You'll have -- we'll have to wait and see how that plays out
and in what court.

MR. PICKLE: And the one other thing, your Honor, is
that the MidCountry Bank records, as far as I know, they were
never designated confidential by MidCountry Bank, and it cost
us $3,500 to get those.

THE COURT: Again, I'm giving you 21 days to file
something with me setting forth what you believe are your
reasonable costs, expenses, and attorney's fees incurred in
this litigation.

Again, I'm not promising I'm going to pay any of them,
or permit them to be paid, but I will entertain any filing you
wish to make.

MR. JOY: Your Honor, are you looking for -- this is
now Gailon Joy again.

Are you looking for our motion's total cost or --

THE COURT: Please characterize it as a motion, so
that it -- under the computer system, it -- it's flagged as
something requiring my action.

MR. JOY: Thank you.

THE COURT: But you can, you know, designate it
however you wish or think it's appropriate, and I'll permit
plaintiffs to oppose whatever it is you file, and I'll make
whatever decision I think is right under the circumstances.
I'll simply give you that opportunity is all I'm doing at this
point. Okay?

And if I do award -- decide to award any kind of costs
or expenses or fees, it will obviously be a further condition
of the order of voluntary dismissal, but we'll -- we'll take
that up as it comes.

MR. SIMPSON: Thank you, your Honor.

THE COURT: And I'll retain jurisdiction for that
purpose.

Okay. All right. If there's nothing further, then
we'll stand in recess.

MR. SIMPSON: Nothing further from the plaintiffs.

THE COURT: Okay.

MR. JOY: Your Honor, I do have another question. I
was noticing this week, I think it was, that there are three
items on the docket that aren't visible on Pacer. Nos. -- I
think it's Nos. 22, 28, and 88, and at some point are those
unsealed?

THE COURT: Not unless someone -- if they're sealed,
they're not going to be unsealed, unless someone moves to
unseal them.

MR. JOY: Thank you, your Honor.

MR. PICKLE: And, your Honor, this is Bob Pickle
again.

Attorney Simpson told me on Friday, the 17th -- well,
he called me up and made a settlement proposal, and one thing
he said was that if we didn't agree, you know, to settle, that
one thing that the plaintiffs could do is to file a motion to
dismiss, and it would be just kind of automatic, and there
wouldn't be anything further we could do about it. So, I point
blank asked him, Are you going to file a -- a motion to
dismiss? And he told me no. And then six days later, he went
ahead and filed it, and it just took us by surprise.
In our opinion, he didn't follow -- and he never
talked to Mr. Joy about it at all. In our opinion, he did not
comply with local Rule 7.1.

MR. SIMPSON: May I address that, your Honor?

THE COURT: Very -- very briefly, yes.

MR. SIMPSON: Just, it's a certain Alice in Wonderland
quality to this whole litigation and hearing my conversations
with Mr. Pickle translated back to you, your Honor, that's not
at all what the conversation was like.

I read the rule to Mr. Pickle, Rule 41, including the
terms and conditions, and we discussed whether there was any
possible -- possible basis on which they would agree to the
dismissal of the lawsuit. He said that he would speak with Mr.
Joy over the weekend, get back to me on Monday, if there was an
interest; and he didn't get back to me and continued to move
forward with the lawsuit.

THE COURT: All right. All right.

MR. SIMPSON: So that's -- that's all I want to say.

THE COURT: Okay. I've heard enough. My order will
issue. It will be an electronic order, as indicated, and we'll
stand in recess.

Thank you.

MR. SIMPSON: Thank you, Judge.

MR. JOY: Thank you.

MR. SIMPSON: Bye-bye.

(At 3:33 p.m., Court was adjourned.)

[Daryl Fawcett]

Interesting.

Thank you for posting this.