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The "They Ruined My Christmas" Doctrine

rejected by the federal district court for the District of Arizona, in Yount v. Regent University, Inc., No. CV-08-8011-PCT-DGC (April 14):

Plaintiff moved for sanctions on January 16, 2009 due to Defendant's method and timing of service: "[t]he Certificate of Service [states that Defendant's motion] was sent by 'Mail' on December 20th when, in fact, it was hand delivered [by Fed Ex] ... on December 24[.]" Dkt. # 68 at 2. Plaintiff asserts this Christmas Eve service reflected an effort by Defendant to disrupt Plaintiff's holiday and to violate his rights under the First Amendment.

To quote the plaintiff, "Obviously, the Defendant wanted to taint the Plaintiff's religious celebrations, and as an officer of the Court, Mr. Myer should be cautious of violating the Plaintiff's First Amendment rights during his religious celebrations."

No dice, says the court, presumably taking the view that no-one has the right to a Christmas unmarred with memories of service of legal documents.

Oren:
Good find. I'm amazed the motion for sanction is, itself, not subject to sanction under rule 11.
4.16.2009 7:14pm
Eugene Volokh (www):
The court mentioned that it wouldn't sanction the plaintiff this time because he was a layman representing himself, but expressly warned him against making such frivolous claims in the future.
4.16.2009 7:16pm
TerrencePhilip:
Damn. How many times have I wanted to write, "they purposely filed this at 4:30 pm on a Friday, knowing the hearing date would fall in such a way that I'd be forced to respond on the day after the upcoming holiday which is about 10 days away. Don't just continue it- smack them for this."
4.16.2009 7:59pm
Bpbatista (mail):
I once had a case -- against a well respected firm in Cleveland -- where the case was set to go to trial on Tuesday after the Labor Day holiday. We were feverishly preparing for trial over the weekend, and also engaged in settlement discussions with opposing counsel. We eventually reached a settlement that cost our client a significant, for him, amount not to mention our fees for the weekend trial prep. However, opposing counsel did not disclose that he had voluntarily dismissed the case on Friday and, contrary to the certificate of service, had not served the dismissal notice on that date but, rather, waited until Tuesday to put it in the mail.

We filed a motion for sanctions with the court that resulted in the nullification of the settlement, dismissal of the suit with prejudice and the opposing counsel paying $10,000 to our client to cover his legal fees.

Moral of the story -- don't F around with the certificate of service.
4.16.2009 8:23pm
rosetta's stones:
Guy goes to answer his door on Christmas Eve, smiling and full of Christmas cheer, and gets served tidings of legal comfort and joy. That just ain't right, man
4.16.2009 8:56pm
Daryl Herbert (www):
I think there's a very important distinction here between serving a motion and serving a lawsuit.

If someone made service of a lawsuit on Dec. 24th, for no reason other than to jerk a person around, that would be bad behavior though probably not sanctionable in and of itself. It would be the kind of petty nastiness that we have come to expect from certain members of the bar.

(If someone made service of a complaint on Dec. 24th because the defendant was hard to find most of the time, or because a deadline for service was approaching, that would be justified. If the defendant is a Jew or a big corporation, then the Dec. 24th date would hold no special significance.)

However, the impact of service of a motion is so different in magnitude as to be different in kind. First, motions are much smaller than lawsuits. Serving notice of a motion is a trivial thing that happens on a regular basis. Second, this is the plaintiff whining about the defendant's motion. The plaintiff wanted to take things to court, and he got his way. If he doesn't want a lawsuit ruining his Christmas, he should not have filed a freaking lawsuit.
4.16.2009 9:14pm
ThreeOneFive (mail):
is there a link or pdf?
4.16.2009 9:27pm
epeeist:
Not having read the case nor knowing the relevant motion timelines, I still see a potential problem with this type of behaviour (notwithstanding the court's finding) - that a motion filed claiming Dec. 20th service (albeit by mail, so figure two days to arrive?), but actually served Dec. 24th, would give the plaintiff too little time to prepare for the motion (based on the actual date of service being several days later than that claimed in the certificate of service).

If there was no such issue - let's say the motion had been returnable Jan. 16th which was much longer than required, then I would agree with the court's finding save and except for the issues with improper certificates of service as a prior poster discussed (i.e. the court should have criticized the defendants for what was at best a careless mistake that they should have paid more attention to).
4.16.2009 11:55pm
Ian Ballon (mail):
Although I don't know the facts of the case so there may have been a legitimate need for doing so, it seems to me that a law firm that serves a pro se plaintiff with motion papers on Christmas Eve is inviting criticism from the court. While the individual plaintiff's assertion of a First Amendment defense may seem silly to many lawyers, I can think of many judges who would deal harshly with a firm that hand delivered motion papers to an individual representing himself on Christmas Eve, absent extenuating circumstances.
4.17.2009 11:55pm
Alvin Ray Yount Pro-Se:
From the Pro-Se Plaintiff: Alvin Ray Yount

Hi Folks,

The Rule 11 Motion for Sanction was my way of letting the Court know what was going on. I did not truly expect to win, but did not expect to pay costs because the defense had, as Bpbatista eluted to, fudged considerably on the Certificate of Service. Epeeist suggested that the improper service might have been "a careless mistake." However, when one signs a Fed Ex form and specifies "next morning delivery before 11:00 a.m.," one has committed to a deliberate act. Daryl, this was not just a motion, but also a motion for full Summary Judgment that was served on Christmas Eve. I will argue that serving a Motion for Summary Judgment is far more severe than simply "serving a lawsuit." Yes Ian, I suspect the Court might "deal harshly with a firm that hand delivered motion papers to an individual, representing himself, on Christmas Eve." Thank you for your kind words. Rosetta's stones and TerrencePhilip have captured my heart. Oren, God bless you!

However, the irony of ironies is that M.G. "Pat" Robertson owns the corporate defendant, Regent University. Moreover, it appears that Robertson shares the Plaintiff's viewpoint of not being disturbed on "sacred" occasions. In the spring - 2008 issue of the Christian Quarterly Review journalist Bill Sizemore stated in his story, "The Christian With Four Aces":

I spoiled Pat Robertson's birthday.

I know, because he told me so.

… We had been summoned for a tongue-lashing over a story I had written about Robertson. "It was a vicious piece, full of lies," he fumed—and what's more, I had consciously timed its appearance to ruin his birthday.

Accordingly, it remains my belief that birthday celebrations of divine entities like Robertson and Christ should remain undisturbed.

Last August, during mediation, AIG's representative threatened to make my life "a living hell" if I did not accept Regent's only offer. The Christmas Eve service was simply a method of reinforcing that posture.

Also, on April 14, two of my four Claims survived the Defendant's Motion for Summary Judgment: (1) Disability Discrimination and (2) Breach of Contract. Pretrial Conference is scheduled for June 3, 2009. I have sent an offer to the Defendant's counsel. The Defendant has filed an offer to Allow Judgment on one of the two remaining charges.

Since I earned my degree from Regent University "online" it is likely that Yount v. Regent University will be referenced for years to come in online cases. The Motion for Dismissal or Change of Venue was the first battle that I had to win in May of 2008. A book may follow, "Suing God's Regent."
4.24.2009 5:56pm

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