So, Hannah Giles and James O’Keefe have been dragged into court. Again. This time, it wasn’t by ACORN itself but rather the office director who was featured so prominently in Giles and O’Keefe’s Philadelphia installment of their series of undercover videos used to demonstrate the internal corruption and illegality within an organization which has received praise and hundreds of thousands of dollars in cash from the president of the United States, and billions more from American taxpayers.
For me, it’s now a question of why. If I were ACORN and those who support both what ACORN supposedly does and what it actually does, after all, I’d want that organization as far away from the headlines as possible. Especially as America–this new, outspoken America which has so loudly announced itself in New Jersey, Virginia and just this week in Massachusetts–draws closer and closer to the mid-term elections in November and as focus shifts to the presidential election in 2012.
To understand exactly why this action was commenced and what could be made of the whole thing in the end, it’s important to know how it got to this particular point, and what could possibly happen in the near future. Though I may be a law student anxiously awaiting graduation in May (and a job in Charleston, SC should anybody be looking for a 31-year-old new associate), I am far from a legal expert. Nevertheless, I wanted to break down a few of the basics in order to answer some of the questions which have come across my inbox about what has already happened and what is likely to happen next. Nothing spectacular — just enough to get folks on the same page. Of course, I might be right and I might be wrong, but in this economy, my first post-law school job could very well involve memorizing and reciting daily fish specials, so I’ve got nothing to lose.
How Did We Get Here?
If Katherine Conway-Russell is claiming that O’Keefe and Giles are in violation of state law, Jeff, then why was this case filed in federal court?
That’s the question I’ve been receiving over and over again since the story of this lawsuit was first broken at America’s Right yesterday afternoon and, thankfully, the answer is quite simple. Federal district courts are courts of limited jurisdiction, meaning that only certain types of cases can be heard at that level.
The one which seemed to be the source of so much confusion is federal question jurisdiction, which means that the case in question arises under the Constitution, laws or treaties of the United States. This includes bankruptcy cases, copyright infringement cases, antitrust suits and more, as well as causes which arise under statutory provisions such as the Securities Act, the Civil Rights Act, or the Federal Employer’s Liability Act. Applicable here is diversity jurisdiction, which for the purposes of this discussion means that the parties to the case in question are citizens of different states, and that the amount in controversy is in excess of $75,000.
The action filed by ACORN employee Katherine Conway-Russell falls under the latter. Conway-Russell is a resident of Pennsylvania, O’Keefe is noted as being a citizen of New Jersey, Giles hails from sunny Florida, and according to the complaint Conway-Russell must be seeking more than $75,000 in punitive damages. As for the matter of state law in federal court, if a plaintiff brings a claim under the federal court’s diversity jurisdiction and that claim is based upon state law which, if applied in the federal court, would substantially affect the outcome of the case, then that state law is considered substantive and must be applied.
That’s why it was filed in federal court. Whether or not the folks representing Giles and O’Keefe want to challenge that is up to them. I wouldn’t, and my reasoning follows.
What Can Possibly Happen Next?
Yesterday, Conway-Russell filed a complaint and, according to the docket report, summons were issued to both Giles and O’Keefe. Once service has properly been made, our two brave filmmakers have two general courses of action — first, they can file and serve an answer, something that needs to be done within 20 days of service (but with waiver of service can be delayed for another 40 days after that), or they can claim and attack certain defects in Conway-Russell’s original complaint.
Such an “attack” can be done through three types of pleadings, but the one which in my opinion would be most applicable here–if any “attack” is to be used at all–is a motion to dismiss for failure to state a claim upon which relief can be granted. For those keeping score at home, that falls under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This would ordinarily need to be filed within 20 days of completed service, but while it could be successful, I’m not so certain that it would be the right course of action.
While this action was filed by an employee of ACORN and not ACORN itself, Katherine Conway-Russell has provided us with a unique opportunity here. John Henry Wigmore, who literally wrote the book on the law of evidence, once wrote that “[c]ross-examination is the greatest engine for ascertaining truth,” and while we’re nowhere near trial at this point and in all likelihood could very well never reach that point, the underlying sentiment is the same — why move to dismiss this case when we could use it to learn so much more than we already know?
Rule 26(a) of the Federal Rules of Civil Procedure, for example, is all about initial disclosures. As applied to this particular case, it would require that Katherine Conway-Russell provide to Hannah Giles and James O’Keefe–without waiting for a discovery request–the following materials, among others:
- Names, addresses and telephone numbers “of each individual likely to have discoverable information” which Conway-Russell may use to support her claims or defenses, as well as identification of the information
- Copies of or descriptions by category and location of “all documents, data compilations, and tangible things in the possession, custody, or control” of Conway-Russell and that she may use to support her claims or defenses
- A “computation of any category of damages claimed” by Conway-Russell, including any documents or evidence not otherwise protected from disclosure which may be used to compute those damages.
I’m obviously not a lawyer, but if I were involved in this particular case I’d be in no hurry to force Conway-Russell into picking up her ball and going home. Years ago, when my wife worked nights at the hospital before our daughter was born before I had law school studies and a Web site to occupy my time, I used to play a lot of Texas Hold’em — and if I were playing with a group of folks and dealt three aces on the flop, I likely would refrain from tossing all my chips in the middle of the table and forcing the other guys to fold when I could otherwise most likely get my hands on quite a bit of their stash by dragging things out a bit.
This matter may never reach the discovery phase–the very prospect of which must have O’Keefe, Giles and Andrew Breitbart practically foaming at the mouth–but there’s no reason I can see to end this thing prematurely. Sure, the temptation to file motions to dismiss under Rule 12(b) must be strong, but resisting those temptations brings the possibilities of depositions, interrogatories, requests for admissions and any number of measures which could be employed in a capacity under which we all could learn more about the innerworkings of ACORN through the litigious person of Katherine Conway-Russell. Not to mention the mountains of knowledge which could be gleaned from discovery, or even the possibility of making Conway-Russell wish she never filed the complaint in the first place by means of counterclaims for wrongful use of civil process or frivolous harassment calculated to inflict emotional distress.
Hannah Giles and James O’Keefe have indeed been dragged into court. Considering the Pennsylvania statutes in question as well as the statutory exceptions to the prohibition of interception of oral communications, they might be able to argue a good faith belief that they were not in violation of the law. Regardless, however, when it comes down to the details which will be necessary to proceed, the party most in the hot seat here might not be a party at all — ACORN. And as this reawakened America draws nearer to election day in November, more details into this particular cog in the wheel of corruption currently rolling through Washington will certainly be welcome.