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Good Evening #Threadnought and all the little ships at sea.

New filing:
Reply in support of the motion to dismiss. This, unlike the "Ty Beard: Accidental Notary" motion, is submitted only on behalf of Toye and Rial.

dropbox.com/s/wkzose3zfdo7…
I think we've had 10 filings drop already today, which is over my expectations to the tune of at least 4, and I'm not sure we're done yet. I'll try to unravel things later, and figure out how/what to summarize.

In the meantime, let's take a run through this one.
To refresh: this is the reply to the epic disaster that Ty submitted on Friday. Probably. The Second Amended Complaint complicates this some, to whatever extent that it might differ from Friday's response.

I'm going to talk about that and about bad faith assholery later.
For now, I'll say this:
Because Ty Beard litigates like a toddler, I don't know what the hell this is replying to. And if I was drafting the reply myself, I still might not know. I doubt that Judge Chupp - or Judge Chupp's clerk - are in any better a position.
And you can bet your last freaking dime that Ty will - not might, not could, but will - claim that the 2nd Amended Petition, filed last night, is his controlling response and anything in there not addressed in today's replies is a forfeited argument and they win.
You can bet that Nick's going to be all over that, too.

Know what? I hope they go with that argument. It will serve them right.
Anyway - let's press on to the document itself. I'll assume it's only replying to the Friday thing, but don't know for sure yet.

And sorry for the delay - life interfered.
One rarely sees footnotes on headings. One sees this even more rarely when it's the first heading. In this case, it's an incorporation of the other arguments - mostly a formality. I guess Lemoine didn't want to distract from the flow.
This is a brutal heading. It builds well on the earlier filings from today that set up the notarization issues - plaintiffs have drained the trust well dry.

The footnote clarifies my earlier confusion. This is a reply to the disaster filing, not to the 2nd Amended Pet.
Also note what the defendants do in that footnote. The confusion is damn well not on them; it's on that incredibly inept imbecile Beard. But they apologize anyway for whatever of the court's time they might unnecessarily waste.

Smart call.
Lemoine has clearly hit his stride at this point. The theory of the case has clearly shifted, for the purposes of this motion, but he sticks the landing:

You can't trust a thing that the Plaintiff claims.
And how does Lemoine back that up? He didn't insert references to the external evidence of dishonesty; he went right for the plaintiff's own filing.

Remember when I said that lawyers and judges check the footnotes? That's what he did.
Ty tried to smear the defendants. Would have worked, but (1) his references didn't support the claim; and
(2) his client had previously testified otherwise.
Moving on - I think we can add Shelton v. Sargent, 144 S.W.3d 113 to the list of cases to look at later, time permitting. But I'm sure it says what Lemoine says it does. Mostly that's because it's a very common sentiment expressed by courts around the country.
The Dahlin affidavit is up next, as another example of Ty overselling things. (I think "poignant" is the wrong word, but nbd.)
Lemoine goes on to cover several additional issues in a very small amount of space. This includes the sham affidavit issue, as well as inconsistencies with prior testimony.

(Also, I'm massively behind; need to read defendants' objections at some point soon.)
(And I'm going to skip paragraphs where I have nothing to say; it's a longish filing and time is not on my side tonight.)
This paragraph and footnote are a good combination. They combine to establish the degree of prejudice that Ty has inflicted on the defense with his deadline shenanigans.

Essentially, it's: "Judge, do you know how much time we wasted because of the citations?"
Honestly, this section could have ended here.

(Obviously the case citations are also important, but it's a slam dunk.)
The next item on the chopping block is Nick's (and Ty's, but Nick has been saying this a lot) assertion that the court has to assume that the assertions that the plaintiff makes are true.

It turns out that courts can draw their own conclusions from the pleadings. Who knew?
Paragraphs 12 and 13 are going to leave some marks, I think.

Highlights:
"a status he would otherwise bask in if the news was positive"

"implying that he artificially inflated his Twitter following with fake followers"
(Gonna take a dogwalk break, back in a bit)
OK. Dog pictures another time, let's pick up the filing.

Most of the rest of the public figure argument is a skip-past for me for the moment; I've been solid on the Lane v Pharis analysis for some time now, and see no issues.

That said, there's one point worth note.
One of the elements of the LPFF analysis in Lane includes whether the effects of the dispute will be felt beyond the participants. Quite a few of Vic's supporters have contested that.

Defense cite's Nick's efforts as proof of those effects.
Next, we move on to Ty's failure to address two of the affirmative defenses in their entirety.

I don't know if the failure will be fatal or not - I can think of one question (which I will discuss in a couple of days) that's unanswered. But the failure may hurt.
TI with contract also has major problems - mostly regarding the lack of contracts. Yes, one was attached, but there are issues with a TI claim based on only that contract.

(I'll discuss those more another time.)
Also -
Hey, Nick:
Van der Linden isn't just a defamation case. It had TI, too.

But I don't know why Lemoine is shocked by that - I'm not, are any of you?
Moving on -
The plaintiffs included hundreds and hundreds of allegedly defamatory tweets. All of them lacked the context provided by the surrounding tweets in the conversations.

That might have been an oopsie.
In fact, it's a really big oopsie, and Lemoine shows why.

I'll admit that I hadn't bothered to look; I'd been assuming that "he's the definition of harassment" applied to Vic. I missed that Rial testified that it was a typo.
Lemoine also points out that the chopping up of tweets is part of the reason that there were so many "I don't know" answers in the Toye deposition.
As far as actual malice goes, the header says it all. Not a lot to add, really. We've been saying this for months, and Ty's proven it in just about every appearance on Nick's show.
Now we get to the part I've been looking forward to - how Lemoine addresses Van der Linden. As I've said, I've viewed this as the case that might get one statement past the TCPA.

I was confident that, no matter how badly Nick and Ty bumbled their attempt, he would address it.
There are two reasons for that. The first is that it would come up on appeal anyway. The second is that it's a key case from the controlling jurisdiction; better to address it head-on than have the judge think you are either a fool or dishonest.
Reading it, am I 100% convinced by the argument? I don't know. I'm absolutely convinced by the part that applies to Toye - that's clear. As for the part that applies to Rial, it's a very solid argument.

And it's made more solid, to be blunt, by this weekend's shenanigans.
In the next section, Lemoine does a far better job of identifying the allegedly defamatory statements than Ty ever has. Here's how good I think it is:
Whether or not these were the only ones Ty had in mind when he wrote the First Amended Petition, they're the only ones now.
I'm not going to go through them all - we've reviewed most of them already, and there's not a lot new in there. I will highlight - without judging - however, one spot that's very nearly the textbook definition of irony.
But that's just for Rial's statements. There's nobody who can make sense of the allegations against Toye, and Lemoine (wisely, I think) doesn't try. The key for Toye is that the plaintiff's own evidence negates actual malice.
Moving on:
I haven't dug into the Slatosch affidavit at all, so I can't speak to this very much. But I think Paragraph 40 is pretty convincing. Especially since these would be allegations not included in any prior filing, including the "excrement" and "defaming Jesus" letters.
All those strings and lines and insinuations and factless assertions and Lemoine goes and deals with the conspiracy claim with nine words and a cite.
And the defendants point to the Huber affidavit? declaration? whichever as additional evidence to support their libel-proof defense.

Surprising nobody.
That wraps up the reply from Rial and Toye.

Thoughts:
I was, and remain, a bit less confident in a TCPA dismissal here than I was regarding Marchi and Funimation. (I've thought an across-the-board success was likely, just not as certain as the others.)

That said -
Even without the affidavit adventures and the 2nd Amended Petition, I would have been much more confident of dismissal after reading this reply.

I'm going to reserve a final guess until we get a better idea of how Judge Chupp is planning on handling the current disaster.
Overall, though, a very very solid reply. Particularly given the thing it's trying to reply to.

I'll be back later to look at the Marchi reply and to try and sort through everything else that was filed.

/fin
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