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jberryhill

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Gender: Male
Hometown: Delaware
Member since: Fri Jan 20, 2006, 07:14 PM
Number of posts: 59,290

Journal Archives

Woodland Beach


The ride out from Route 9 is half the fun....

https://twitter.com/Berryhillj/status/985238454383542276

https://twitter.com/Berryhillj/status/985590408859267073

Do you believe Britain and France are doing this to distract from Trumps other problems?


Whatever the media goes on about, the fact of the matter is that Monday morning the SDNY USAG’s office turns on the lights and goes back to work, as do the courts, as does the special counsel’s office.

The process of law is the process of law, and it doesn’t stop to care what leads on the hourly news.

The Syrian action does not have any real impact on what is already in motion on the Trumpster Fire front.

I sincerely doubt that Macron has any interest in using French military assets to do Trunp some sort of personal favor. If you believe otherwise, please explain what’s in it for France?

I'm calling shenanigans on Keith Davidson


So with the lastest GOP hush money thing, this certainly jumps out:


The lawyer for the woman, Keith M. Davidson, also represented two women who were paid during the presidential campaign for their silence about alleged affairs with Mr. Trump...


How on earth was Davidson getting these referrals?

Sorry, not buying the Pence Is Worse thing


A president Pence, constrained by a Democratic Congress is a distinguishably better outcome than the present circumstances.

There is no question that Pence - nobody’s choice for anything - is an odious character. But in his blithering ineptitude, he is also not a one man wrecking crew.

IMHO, the “Pence is worse” argument is an attempt to suggest that the rule of law is some sort of means to an end, rather than an end in itself.

Seems like someone finally told Trump why the TPP, in principle, is worth pursuing


Apart from "what are the specifics in the deal" which is a separate issue, the Trans-Pacific Partnership was, in principle, a bulwark against Chinese hegemony in Asian markets.

After finally figuring out that a bi-lateral trade war with China (a) has no winners, and (b) mostly hurts Trump's base, comes this:

https://www.politico.com/story/2018/04/12/trump-tpp-trade-pact-519128

President Donald Trump directed two of his top aides to study the possibility of re-engaging in negotiations over the Trans-Pacific Partnership, Sen. Ben Sasse (R-Neb.) said in an interview Thursday. The move would be a huge policy swing for Trump, a free-trade skeptic who walked away from the massive trade pact after winning the presidency.

At a meeting with pro-trade senators and governors, Trump directed economic adviser Larry Kudlow and U.S. Trade Representative Robert Lighthizer to scope out whether re-entering TPP talks makes sense, Sasse said. The trade deal, negotiated by President Barack Obama, would aid the United States in isolating China by crafting agreements with many of its neighbors.


The problem with being stupid is having to be constantly brought up to speed on the most basic information that everyone else already knows.

Raid!

Has Cohen testified re: Trump/Russia business dealings?


Mueller recently collared Felix Sater.

If Sater turned and provided information on Cohen's involvement in Trump/Russia real estate dealings, and if Cohen has given wrong or incomplete testimony on that topic, then I can see where they might have gotten enough of a factual basis to apply for the warrant against Cohen.

https://www.cnn.com/2017/09/19/politics/read-michael-cohen-statement/index.html

I assume we will discuss the rejected proposal to build a Trump property in Moscow that was terminated in January of 2016; which occurred before the Iowa caucus and months before the very first primary. This was solely a real estate deal and nothing more. I was doing my job. I would ask that the two-page statement about the Moscow proposal that I sent to the Committee in August be incorporated into and attached to this transcript.

Sater would have known otherwise, and would also have known that Cohen knew.

Judge finds Avenatti misunderstands procedure in Stormy Daniels case

As is frequently pointed out on DU, deadlines in court proceedings are usually more flexible than advertised by breathless headlines.

When Judge Otero denied Avenatti's untimely motion for expedited discovery a few days back, the judge had set certain deadlines for the defendants to file a response to the Amended Complaint.

In response to the Amended Complaint, Cohen has filed a motion to compel arbitration, and had sought an extension of time to respond to the complaint itself, since the motion to compel arbitration, if granted, would obviate the need to reply to the contract claims of the Complaint. (On the defamation claim, another motion is coming, but that bridge will be crossed in the near future)

Normally, that kind of extension of deadlines is done by joint stipulation. The counsel will "meet and confer" and file a joint stipulation to the extension. The "meet and confer" requirement can be fairly minimal, and is normally a simple telephone call, which can take a couple of minutes. Judges expect the parties to take care of dealing with deadlines on their own, and don't like to hear that counsel is unable to cooperate on something as simple as scheduling the case. They normally have things like serious crimes, terrorism and life-or-death matters on their docket. Two peacocks strutting over a contract dispute does not make their day joyous.

That process seems to have broken down, with yesterday's filing of an ex parte (i.e. without the other side's consent) motion to extend the deadlines filed by Cohen. Among other things, it states:

https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.26.0_1.pdf

On April 3, 2018, counsel for Defendants advised Mr. Avenatti of this ex parte application, in writing, on two occasions. Blakely Decl., ¶¶ 8-10; Ex. C and Ex. D to Blakely Decl. On the second occasion, pursuant to Local Rule 7-19.1, Mr. Blakely attempted to schedule a call the following day (April 4, 2018) to discuss the date and substance of this application. Blakely Decl., ¶ 10; Ex. D to Blakely Decl. However, Mr. Avenatti did not respond to Mr. Blakely’s email for over thirty (30) hours, and when he did respond, Mr. Avenatti offered to schedule the call over the weekend (i.e. at least 2 days later). Blakely Decl., ¶ 11; Ex. E to Blakely Decl. In the interim, on April 4, 2018, Mr. Avenatti appeared on at least three national television news shows to discuss this case: (a) Anderson Cooper 360 on CNN; (b) Megyn Kelly Today on NBC News; and (c) New Day on CNN, with Alisyn Camerota. Blakely Decl., ¶ 11.

...

In light of EC’s pending Motion to Compel Arbitration[Dkt. No. 20] (the “Arbitration Motion”), in which Mr. Trump has joined, Defendants requested that Plaintiff stipulate to a 30-day extension of their response deadline, in the interest of judicial economy.Rather than simply grant this routine request, Plaintiff’s counsel, Michael Avenatti, conditioned Plaintiff’s stipulation to anextension on a separate agreement by defendant Michael Cohen (who is not a party to the cause of action brought against Defendants, and is not requesting an extension at this time) to arbitrate Plaintiff’s second cause of action of defamation against him in the event the Court grants the Arbitration Motion. Plaintiff’s attempt to condition Defendants’routine request for an extension upon a separate agreement from a separate defendant (MichaelCohen) is wholly inappropriate and runs afoul of Section B.2. of the Central District’s Civility and Professionalism Guidelines, which states in pertinent part: “Unless time is of the essence, as a matter of courtesy we will grant first requests for reasonable extensions of time to respond to litigation deadlines.”


Today, Avenatti filed an opposition to this request for an extension:

https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.27.0_1.pdf

Plaintiff’s counsel interpreted this very clear directive from the Court as an admonition to the parties to make sure the parties not deviate from the Cour t’s instructions and that the deadlines “must” be complied with. A stipulation to move Defendants’ response deadline would constitute such a deviation. As a result, both on the phone on Monday, April 2nd, and in Plaintiff’s counsel’s e -mail to Defendants dated Tuesday, April 3rd, Plaintiff’s counsel stated: “(A)s we have previously explained, Judge Otero set out specific deadlines in his order last week, which we believe he intends for the parties to follow. This is not a simple case of moving deadlines set by the FRCP.” (Blakely Decl., Ex. D (Dkt No. 26- 1 at 16); Avenatti Decl., ¶ 3.)

Surprisingly, Judge Otero ruled on Cohen's motion and Avenatti's opposition, within hours:

https://www.courtlistener.com/recap/gov.uscourts.cacd.704250/gov.uscourts.cacd.704250.28.0_1.pdf

Defendants request that the Court extend the deadline to file an Answer to the First Amended Complaint ("FAC" until after the Court rules on a pending motion to compel arbitration, filed by Defendants on April 2, 2018. (See Mot. to Compel Arbitration, ECF No. 20.) Plaintiff opposes this request on the grounds that the Court set a firm deadline for filing a responsive pleading to the FAC in a previous order. (See Order Denying Pl's Mot. for Expedited Jury Trial 4, ECF No. 20.) Plaintiff's argument is premised on the misunderstanding that a motion to compel arbitration cannot be substituted for a responsive pleading.

Courts considering the matter have consistently held, however, that "a defendant in a pending lawsuit may file a petition or motion to compel arbitration in lieu of an answer to the complaint . .. as procedural summaries in arbitration cases uncontroversially reflect." Lamkin v. Morinda Properties Weight Parcel, LLC, 440 F. App'x 604, 607–08 (10th Cir. 2011) (citing Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 83 (2000), Davis v. S. Energy Homes, Inc., 305 F.3d 1268, 1270 (11th Cir. 2002)); see also Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010) (reviewing a motion to compel arbitration under Federal Rule of Civil Procedure 12(b)(1)).

...

The instant dispute could, and should, have been resolved in a civil manner by the parties without intervention by the Court. A short request for extension, supported by good cause, that causes no prejudice to any party, should be accommodated.

As to the merits of the Application, as Defendants are not required to file a responsive pleading while a motion to compel arbitration is pending, the Court GRANTS Defendants' Application.


For those keeping score at home, Avenatti is 0 for 2 thus far in his motion practice. But it's early in the game, and Team Cohen is sure to provide some howlers before long.

Plus, Avenatti is doing much better on TV. If this case were being tried before Lawrence O'Donnell instead of Judge Otero, it would be pretty much over by now.
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