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Tue Jun 19, 2018, 06:29 PM


Avenatti's motion denied (again) by Judge Otero in Stormy Daniels' contract case [View all]

As you may remember, once upon a time, Michael Avenatti represented a client, Stormy Daniels, in a contract lawsuit in California.

That civil lawsuit was ordered to be stayed pending certain matters going on on the federal court in New York, which is engaged in sorting through materials seized from Michael Cohen's office and residences, pursuant to a warrant and likely some criminal charges to follow.

It was stayed because, in a previous motion seeking to depose Trump and Cohen, Avenatti had argued that Cohen's testimony would be indispensible.

At the time it was stayed, Avenatti tweeted that he would be immediately appealing the ruling:

Being a quick study, and having quickly surmised that one does not appeal a temporary stay order, he more recently filed a motion for reconsideration in the case, based on the proposition that "Trump and Rudy Giuliani said stuff on TV".

Judge Otero had initially scheduled a hearing on that motion (and Cohen's reply to it) and then, as sometimes happens, decided that a hearing wasn't needed, and issued a ruling on Avenatti's motion today:


No real surprises, but Judge Otero, who just handed down a significant ruling in patent law which will affect thousands of litigants, had a few interesting nuggets along the way as to Avenatti's motion, and the relative importance of a contract lawsuit in the larger scheme of things:

Plaintiff first argues that statements made by Mr. Trump and Mr. Giuliani regarding the scope of
the FBI investigation "cast doubt" onto whether Mr. Cohen's Fifth Amendment rights are truly
implicated in this action. (Mot. 9.) According to Plaintiff, statements by Mr. Trump and Mr. Giuliani
that the investigation relates only to Mr. Cohen's business dealings and that no wrongdoing has
occurred demonstrate that: (1) the scope of the investigation is unrelated to this lawsuit; and
(2)Mr. Cohen has no valid reason to believe his testimony would be self-incriminating. (Mot. 10-11.)
Plaintiff argues that this evidence demonstrates that Mr. Cohen's invocation of the privilege was
simply an opportunistic attempt to delay resolution of the civil proceedings. (Mot. 11.)

As an initial matter, Mr. Trump or Mr. Giuliani's belief in Mr. Cohen's innocence has absolutely
no bearing on Mr. Cohen's Fifth Amendment privilege.

The boldface is in the decision, and it really doesn't take much legal acumen to understand, as the judge is basically shouting here, that "Rudy and Donnie said stuff on TV" doesn't really have jack shit to do with Cohen's assertion of privilege.

Judge Otero also has some closing comments, which Avenatti will perceive as a big "whoosh" sound somewhere far over his head:

The Court held that while it "is undeniable that Plaintiff has a valid interest in the prompt resolution of her claims,"
Plaintiff "has not established that she has actually been deterred from speaking, or that a delay in
proceedings would cause undue prejudice." ( Order 7.) This evidence does not substantially
change this analysis, and the Court declines to reconsider its decision based on this evidence alone.

In closing, the Court again counsels against the unjustified use of "extraordinary" procedural
mechanisms to advance the case. Absent a compelling showing of good cause, the Court will not
permit the parties to displace other litigants or violate the Court's rules. While the Court is
cognizant of the amount of media attention in this case, this alone is insufficient to create the
exigency required for extraordinary relief. If anything, the heightened scrutiny on this action
requires that the Court ensure that the rules are scrupulously followed and that justice is
administered properly and with due regard to the rights of all parties involved.

Here's the thing, if you are filing a lawsuit premised on the idea that "this alleged contract is preventing my client from speaking", then having her do an interview with Anderson Cooper, a Saturday Night Live appearance, and a national tour premised on the fact that she had sex with Trump, etc., really doesn't help the argument that "we need this case decided quickly."

Meanwhile, zipping right past the Daniels case, Karen McDougal, who had a longer and more substantial relationship with Trump is free from a similar contract formed under similar circumstances, and the irony is that nobody really wants to hear what she has to say.

Next up on the docket in the Daniels case is a hearing in July on the subject of Michael Cohen's motion for a restraining order against Avenatti, on the basis of alleged continued violations of the California rules relating to attorneys making out-of-court statements on pending matters. It's hard to believe that Avenatti would have been doing such a thing, but that one promises to be a lot of fun.

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Reply Avenatti's motion denied (again) by Judge Otero in Stormy Daniels' contract case [View all]
jberryhill Jun 2018 OP
Trek4Truth Jun 2018 #1
manor321 Jun 2018 #2
jberryhill Jun 2018 #3