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As you may recall, Paul Levy, an attorney with Public Citizen,
drafted a motion to dismiss the case for lack of personal jurisdiction. I edited and submitted the
motion, and Ms. Greenberg filed a response in opposition. Paul then drafted a reply to Ms. Greenberg's
response; again, I edited the document and submitted it. Here's what it said.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN
DIVISION
| THE TAUBMAN COMPANY LIMITED |
| PARTNERSHIP, |
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| Plaintiff, | |
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| | Civil Action No. 01-72987 |
| v. |
| | Honorable Lawrence P. Zatkoff |
| WEBFEATS and HENRY MISHKOFF, |
 |
Magistrate Judge Komives |
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| Defendants. | |
REPLY MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS
FOR LACK OF PERSONAL JURISDICTION
Plaintiff's opposition to the Motion to Dismiss for Lack of Personal Jurisdiction is pure
sophistry. Plaintiff acknowledges that the Court directed that the Motion for Change of Venue be
refiled to conform to the requirement that a brief be included. Apparently acknowledging that it
would have been sufficient to have included lack of personal jurisdiction as a reason for dismissal
in that motion, Plaintiff complains that Defendants did not list personal jurisdiction in the
refiled motion either. Accordingly, Plaintiff argues that lack of personal jurisdiction can no
longer be made, under the literal text of Fed. R. Civ. P. 12(h)(1), in a "motion," which would
include a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c).
Plaintiff's hypertechnical argument is wrong for several reasons. First, in the second sentence
of the Motion to Dismiss for Lack of Personal Jurisdiction, Defendants specifically moved in the
alternative that the Court permit this motion to be treated as an amendment of the original Motion
for Change of Venue, which is permitted under the Federal Rules. That would permit the defense to be
presented on the current motion. Indeed, by failing to make any response to this alternative motion,
Plaintiff might be treated under E.D. Mich. L.R. 7(b) as having failed to oppose that point, thus
conceding it.
Second, Plaintiff is wrong when it suggests that the Motion to Dismiss for Lack of Personal
Jurisdiction is a "successor motion" to the refiled Motion for Change of Venue. In fact, the docket
sheet reveals that the Motion to Dismiss for Lack of Personal Jurisdiction was entered in the docket
on November 16, 2001, as docket item number 25, and that the Motion for Change of Venue was not
entered on the docket until three days later, item number 29, on November 19, 2001. If any motion
precludes any other motion, it would have to be the venue motion that is precluded.
All of these are mere technicalities, however, with all due respect to Plaintiff and its able
counsel. The refiled motion was refiled as it was, without adding a specific reference to personal
jurisdiction, because the Court ordered the original motion to be refiled, and Defendants did not
want the Court to believe that they were playing fast and loose with the Court's order. It would
have been just as easy to have filed one combined motion, raising both grounds, since they were done
together, so close in time. Indeed, by specifically referring to the other motion in the
jurisdiction motion, Defendants hoped to accomplish just that objective. But putting the wrong point
of law in the wrong piece of paper filed so close in time is, again with due respect to learned
counsel, a matter of formality that should not control the substance of the matter.
Finally, even if the original motion were not permitted to be amended, Fed. R. Civ. P. 12(g)
forbids only that the defense be presented by "motion"; instead, Defendants would ask the Court to
consider the defense as an application for a preliminary hearing under Fed. R. Civ. P. 12(d). That
would be perfectly proper under the language of the Rule, which only bars "motions" and not
applications. Or, the issue could be presented at trial on the merits, because the Answer that was
filed as docket item number 15 (on October 23, 2001) specifically denied the allegations of personal
jurisdiction, thus preserving the defense under Fed. R. Civ. P. 12(h)(1). Because the defense has
been preserved, it is respectfully submitted that it would be senseless to fail to consider personal
jurisdiction at the outset when anything that is decided in this case could later be vacated if the
Court decides that it lacks personal jurisdiction in this case.
Accordingly, the Court should proceed to consider the Motion to Dismiss for Lack of Personal
Jurisdiction on its merits. Construing the request that the Court permit Plaintiff to file another
brief on this subject as a motion, that motion should be denied because Plaintiff failed to seek
Defendants' concurrence before making that request. Indeed, Plaintiff has yet to honor the
requirement in E.D. Mich. L.R. 7.1(a) that concurrence of the opponent be sought before filing any
motion. For a lawyer who insists on technicalities for her opponent, it would be entirely just
to deny one of her own motions for failure to observe the technicalities.
Respectfully submitted,
Henry Mishkoff
WebFeats
2661 Midway Road, #224-225
Carrollton, TX 75006
972.931.5421
Defendants (pro se)
Dated: December 4, 2001
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In the final paragraph, Paul brought up a point that's been bugging
me for weeks. Here's what it means: According to the local rules of the District Court, before one
side files a motion, they're supposed to "seek concurrence" from the other side. This simply means
that they're supposed to contact the other side, explain what the proposed motion will say, and ask
the other side if they agree. The purpose of this procedure is that, if the other side agrees, it
won't be necessary to file the motion, thus saving everybody's time (including the court's, which is
why it's in the rules). If the other side does not agree, the rules state that you should
state in the motion that you "sought concurrence" but were unable to obtain it.
Since I didn't know about the "concurrence" requirement when I filed
my first few motions, I neglected to seek it from Ms. Greenberg, who gleefully pointed out my faux
pas to the judge. But the astounding fact is that Ms. Greenberg has never sought my concurrence
for a single one of the motions she's filed! Not even once! And yet she has the temerity to chide me
for the same omission! At least I have an excuse for my failure to follow the correct procedure: I'm
not a lawyer, and I had been foolish enough to think that, if I minded my own business, I might be
able to go through my entire life without being sued, so I never bothered to familiarize myself with
the rules of the court. And yet Ms. Greenberg can't even follow the local rules of the court in the
Eastern District of Michigan – which is where she practices! I wonder what her excuse
is?
Anyway, I was so pleased to see that Paul had managed to work this
maddening contradiction into this reply that, not only did it survive my edit, I highlighted it to
make sure that it didn't get overlooked!
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