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In Carroll v Trump Case 2d Circuit Certified to DC Circuit But No Stay So Discovery Continues

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Oct 7 – In case of E. Jean Carroll, argument on making the US a defendant seemed set to begin, back on October 21, 2020. DOJ lawyer Stephen Terrell, who asked to adjourn it since he was barred from  U.S. District Court for the Southern District of New York courthouse due to Virginia being on quarantine list, called in. Inner City Press live tweeted it, below.

On September 27, 2022, a three-judge panel of the Second Circuit Court of Appeals ruled: "6 Before: CALABRESI, CHIN, and NARDINI, Circuit Judges. Defendant-Appellant Donald J. Trump and Movant-Appellant the United States of America appeal from a judgment of the United States District Court for the Southern District of New York (Kaplan, J.) denying their motion to substitute the United States in this action pursuant to the Westfall Act of 1988. On appeal, appellants argue that substitution is warranted because the President of the United States is a covered government employee under the Westfall Act, and because Trump had acted within the scope of his employment when he made the allegedly defamatory statements denying Plaintiff-Appellee E. Jean Carroll’s 2019 sexual assault allegations.  We REVERSE the District Court’s holding that the President of the United States is not an employee of the government under the Westfall Act. And we VACATE the District Court’s judgment that Trump did not act within the scope of his employment, and CERTIFY that question to the D.C. Court of Appeals. Judge Calabresi concurs in a separate opinion, and Judge Chin dissents in a separate opinion." Full decision(s) here.

On September 28 Trump's lawyer Alina Habba wrote to Judge Kaplan asking that he change the caption of the case - and stay it. She argued, "the DC Court of Appeals forthcoming ruling will be case-dispositive and, therefore, it would be highly prejudicial and inequitable for Defendant to engage in time consuming and expensive pre-trial preparation."

On October 3 after Carroll argued that the "Second Circuit's ruling changed hardly anything," Habba wrote in a again, calling his "asinine and manifestly false."

On October 6, the lawyers called in from Kansas during the deposition of Stephanie Grisham who was on painkillers due to a broken foot. Judge Kaplan inquired, then said the deposition should go forward.

On October 7, after a full day presiding over Anthony Rapp v. Kevin Spacey, Judge Kaplan told the parties that he will rule soon but there is no stay on discovery and they are to meet all their responsibilities and commitments.

Back on February 22, 2022, Trump's lawyers argued to amend their complaint to include new provisions of NYS' anti-SLAPP law. Judge Kaplan heard and spoke to the arguments; Inner City Press live tweeted here
and below.

  Now on September 20, suddenly docketed in the case are letters from Carroll's counsel dated August 8, stating that she wants to depose Trump as well as sue under NYS' Adult Survivors Act as soon as possible (November 24, 2022).  Letter on Patreon here.

Trump's lawyer Alina Habba on August 11, 2022 said Carroll's "request must be disregarded in its entirety." Whether the delayed docketing means Judge Kaplan is soon is rule is not known. Watch this site.

Back on March 11, after a New York State decision, Judge Kaplan dropped the hammer on Trump's arguments, see below.

 On July 19 Judge Kaplan issued a new schedule: "The existing scheduling order (Dkt 76) is supplemented as follows: 1. All discovery shall be completed on or before November 16, 2022. 2. Any summary judgment motions and a joint pretrial order in the form attached as Annex A to the individual practices of the undersigned (which are posted on the Court's web site) shall be filed on or before December 1, 2022. 3. Absent prior disposition of the case by motion or otherwise, the trial will commence on February 6, 2023 at 9:30 a.m. 4. The parties shall exchange premarked trial exhibits no later than December 8, 2022. 5. Any motions in limine and oppositions thereto shall be filed no later than December 8 and December 15, 2022, respectively. SO ORDERED.(Signed by Judge Lewis A. Kaplan on 7/19/2022)."

From the March 11 docket: "ENDORSED LETTER addressed to Judge Lewis A. Kaplan from Roberta A. Kaplan dated 3/10/22 re: notify the Court of the attached decision issued by a unanimous panel of the Appellate Division, First Department this afternoon. ENDORSEMENT: The Appellate Division of the New York Supreme Court yesterday held the 2020 amendment to N.Y. Civ. Rts. L. § 76-a has only prospective effect. Gottwald v. Sebert, _ A.D. 3d _, Index No. 653118/2014 (1st Dep't filed Mar. 10, 2021). Its logic applies equally to the all of the 2020 amendments to the anti-SLAPP law. In the absence of compelling reasons to believe that the New York Court of Appeals would reach a different result, this Court is obliged under Erie to follow it. E.g., Hicks on Behalf of Feiockv. Feiock, 485 U.S. 624, 629-30 & n.3 (1988) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940)); AEI Life LLC v. Lincoln Benfit Life Co., 892 F.3d 126, 138-39 & n.15 (2d Cir. 2018) (quoting Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999); Pentech Int'l, Inc. v. Wall Street Clearing Co., 983 F.2d 441, 445 (2d Cir.1993); Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 84 (2d Cir.1991). Nevertheless, contrary to plaintiff's suggestion, this does not moot the issues addressed in the opinion dated March 10, 2021 (Dkt. 73), as N.Y. Civ. Rts. L. § 70-a applies not only to the commencement of a covered action, but also to its continuation. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 3/11/22)." We'll have more on this.

From Feb 22: Judge Kaplan says courts have found it doesn't apply in Federal court, so might be futile.

Judge Kaplan: Where is that case you are citing from?

Trump's lawyer: The Eastern District.

Judge Kaplan: Last I checked, what I have on my wall gives me just as much say as that judge over there, doesn't it?

Trump's lawyer: I suppose it does, Your Honor.

Judge Kaplan: And why can't Ms. Carroll cite this anti-SLAPP law against Mr. Trump's counter-claim?

 Trump's lawyer: She could. That's what litigation is all about. I'm not trying to get into the merits --

Judge Kaplan: Oh, I understand you're not trying to get into the merits.... This is a he said - she said case. Mr Trump says it didn't happen, and some other things. If Ms. Carroll prevails that it did happen, obviously there was a substantial basis. But she could lose and that could still be the case...

Trump's 2d lawyer: We're seeking to preserve our rights for our client. On attorneys' fees, it can't be futile if our client would be entitled to attorney's fees if wins at trial. Judge Kaplan: But it would be futile if the statute doesn't apply in Federal court

 Judge Kaplan: Thank you I have your points [and will issue a ruling at a later date]. I have a deliberating jury and have to get back to them. [Inner City Press is covering that case too, US v. Johnson for Instagram threats to Sen Manchin, here

 OBack on October 27, 2020 Judge Lewis A. Kaplan ruled, "the allegations have no relationship to the official business of the United States. To conclude otherwise would require the Court to adopt a view that virtually everything the president does is within the public interest by virtue of his office. The government has provided no support for that theory, and the Court rejects it as too expansive.   The President of the United States is not an "employee of the Government" within the meaning of the relevant statutes.... Accordingly, the motion to substitute the United States in place of President Trump [Dkt. 3] is denied."

On December 10, 2020 Marc Kasowitz for Trump asked for a stay of all proceedings, arguing that the District Court is divested of jurisdiction during the appeals to the Second Circuit. "Moreover, the district court is divested of jurisdiction even '[w]hen qualified immunity is in issue' on appeal," citing Garcia v. Bloomberg, 11-cv-6957 (Rakoff).

Back on October 21, Judge Kaplan denied any postponement, and noted he "is not authorized to vary the existing restrictions on entry into the courtroom."

Judge Kaplan begins: I had an application to adjourn and I denied it. What do you want to do?

US: We elect to submit on the briefs, with no argument.

Ms. Kaplan: Jean drove some distance to be in court today. This is essentially a dispositive motion....

 Ms Kaplan: There is no exception to sovereign immunity for intentional torts. We'd like a chance to further brief.

Judge Kaplan: I invoke the principle that new arguments in a reply brief will not be considered. Does the US agree? US: Yes.

Judge Kaplan: Matter is taken under submission. I'm sorry so many people were inconvenienced. Adjourned.

The case is (still) named Carroll v. Trump, 20-cv-7311 (Kaplan).



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