COMING IN UNDER THE RADAR
Now, all of the time that I had been working on this third amended complaint, and thinking all these high falutin’ legal thoughts, I had not been Gary’s attorney of record in the case. Katie Diemer, Sheri Falco, and Joel Dichter remained in position. Strictly speaking, Gary Kremen wasn’t supposed to be filing anything but an opposition to Cohen’s pending motion to dismiss. Judge Ware had told Katie Diemer that if she wanted to file a third amended complaint, she would have to give him a copy of it so he could look at it, according to the “local rule,” and approve it for filing.
When faced with a motion to dismiss that has a serious likelihood of final success, you really need to come up with a good amended complaint. It’s less work than writing an extensive argument, and as a practical matter, motions to dismiss are often granted “in part,” so you end up having to “re-plead” your complaint anyway. So why not just write it and make the other lawyer’s arguments irrelevant? Besides, I didn’t want to defend Katie’s complaint, which didn’t tell much of a story and omitted all mention of my precious “data packets” of property. So I focused all my energies on submitting the “proposed” third amended complaint to Judge Ware. Of course, I still needed to file at least a nominal opposition to the motion to dismiss, and also an “association of counsel,” to establish my official role as “counsel of record,” before attempting to file any papers at all. I had allotted a small amount of time to prepare those in a pro forma fashion after I got done drafting the Third Amended Complaint.
So there I was, in Gary’s living room, working on my laptop, and printing out legal documents on a cheap HP inkjet printer. I got the association of counsel cranked out, but as I was trying to hack out the opposition to the motion to dismiss, my poor old laptop was breathing really hard. Characters were taking seconds to appear on the screen, and finally it just froze up, swallowing the document into the void. Bob Deschl, Gary’s pizza delivery man and computer jack of all trades, tried heroically to resuscitate it, but it was no use. I had cut it too close, and it was time for me to jump in my car, fight my way through traffic from San Francisco to San Jose, and file what I had prepared. And I had to leave early to pick up my daughter, who was arriving at the San Jose train station that same afternoon.
I also wanted to drop by and leave copies of everything with Katie Diemer, whose office was just a few blocks from the federal courthouse, and mooch a few photocopies off her while I was at it, since I hadn’t had time to make any. Now this was an interesting situation. I hadn’t talked to Katie in weeks. She’d been ordered by the court to file an opposition on or before July 12, 1999. Something in my bones told me she was just sitting on her butt, doing nothing. If that was the case, I wanted to catch her at it, and it wouldn’t be bad to have a witness. Since Ana’s train was arriving at 2:30 p.m., she could be that witness. It seemed like the timing would all work out, since the courthouse closed at 4:00 p.m.
I picked up Ana, right on schedule, and headed over to Katie’s office, a big gold cube on Santa Clara, the main drag in San Jose. The receptionist and the secretary were very nice, and sat us down in the conference room. We thought Katie was going to come walking in any minute, but then a funny thing happened. She called me on my cell phone. So there I am, sitting in Katie’s conference room, talking with her on my cell phone while she is sitting in her office. Finally, after a few minutes I tell her, “I’m sitting here in your conference room.” She sounded like I had just put my hands in a place where they shouldn’t be. Her voice went up an octave, “You’re in my office?!” I explained to her that yes, I was, and that I was going to file some documents in the case. After a few more minutes of talking, Katie declared that it was silly for us to be talking like this, and I invited her to come down and meet me in her conference room.
When things like this happen, you’re always glad there’s someone around to talk to about it later. You can check your impressions against theirs, and in this case, it was fun to get Ana’s impressions of Katie Diemer, which confirmed my own. Katie presented as a tall, rather imposing woman in a dark, tightly contained suit that was not entirely unflattering. A frizzy explosion of flaxen hair reaching to below the shoulders. A slightly puffy face with a severe expression covering over what seemed to be a lot of nervousness.
I gave her the documents and let her know what I was doing. Clearly, it wasn’t the way you usually do things. When a client replaces his lawyers, you almost always do it by filing an agreement in writing between the client, the outgoing lawyer, and the incoming lawyer, called a “substitution of attorney.” But in this case Katie had told Judge Ware that she was “unable to act” because of a “conflict of interest” existing between Gary Kremen and other people whose names she did not mention. These were of course Ron Levy and Seth Warshavsky, and she told the judge that she would tell him whatever more he needed to know in a secret, “in camera” hearing that Cohen’s lawyers would not be allowed to attend. Judge Ware hadn’t accepted Katie’s offer to discuss the grisly details of the conflict of interest, however, instead ordering her to file an opposition. Which Katie was not doing. She was going to stand on her claim that she “could not act” and watch the case die. Gary was therefore justified in doing whatever was needed to break the logjam, including hiring a stealth-attorney to flip a filing over the transom at the last possible moment. So I had no apologies for my presence.
Katie admitted she had no opposition to the motion to dismiss prepared. Only I, and the papers spread out on the conference table before me, could prevent Gary from losing Sex.Com forever, from having the gem slip through his fingers and down into the gutter of the legal system, from which it could never be retrieved.
But Katie wasn’t giving up. Did I know, she asked, who was running the litigation? Did I know about Seth Warshavsky and his company IEG? Did I know about the firm of Newman & Newman in Seattle, which represented Mr. Warshavsky? What I knew, I responded, was that none of these people was doing anything to keep the case from being dismissed, and I had to act. She told me that she had called Mr. Newman, and he was going to call back in just a few minutes. She asked me to please wait. It was 3:40 p.m., twenty minutes before the gates of hell were going to open up and swallow Gary’s claim to Sex.Com. I told her I had to go. She told me that it was only ten minutes to the courthouse, and I should really wait to talk to Mr. Newman. I told her I couldn’t. I got my copies from the secretary and headed over to the courthouse.
Once there, I was comforted by the sound of the clerk’s stamping machine putting the beautiful purple ink on my paperwork, “Received for Filing, July 12, 1999.” My baby was safe.
As we left the courthouse, it was closing. As we drove down the streets of San Jose a few minutes later, my cell phone rang. I had the pleasure of speaking with Derek Newman. Like Katie Diemer, he asked, “Do you know who is running this litigation?” My answer was simple, “I’ve always presumed it was Gary Kremen, the plaintiff.” Derek responded that wasn’t the whole story, and I said I understood that. But I wanted to end this interference, so I said “If you’re telling me that Gary Kremen is not the plaintiff in this action, and that he is merely masquerading as the plaintiff pursuant to some sort of agreement in which an undisclosed entity is the real party in interest, then I want to know it right now, so I can advise the court of it, because I will not be a party to any kind of deception of the court.” Our conversation ended a few moments later.
I had done it. I had wrested control of the case from the other attorneys. I had gotten past Steve Sherman’s nay-saying, Gary’s vacillating, and Katie Diemer’s obstructionism. I enjoyed a warm glow of triumph.
It would have been great to split town right then, but I had to finish up that opposition to the motion to dismiss that I’d lost in my laptop crash. Ana and I spent the night in a Best Western, and the next morning, as early as I was able to stir myself, I started finishing up the opposition to the motion to dismiss. But since it was one day late, I also had to write a motion under Rule 6(b). I call these “motions to deem timely filed,” because “deem” is a magical word that reminds the judge that when he says so, a late filing becomes timely. But the writing project took too long, and as going out for breakfast turned into checking out at noon, Ana’s mood got grumpy. At age seventeen, hunger can attack ferociously, and as we left San Jose in the two-p.m. heat, I was apologizing for the litigation lifestyle and promising a great sushi dinner in Walnut Creek by way of atonement.
With the last of my paperwork filed, Ana and I were free to head for Oregon. It’s a lovely feeling when you’ve done your work, and you can finally rest. Filing a complaint is an act of war. You have to work yourself up to it, and you know it’s only the beginning of a lot of trouble that you’re heading straight into for the hope of victory. I guess that’s why you send armies forth with flags, banners, trumpets and beautiful maidens waving. After getting close to the action in Katie’s office, Ana was jazzed on the intrigue that enveloped the case, so she was cheering me on eagerly.
As we poked along through the Silicon Valley traffic jam, we compared notes and listened to heavy metal teen angst tunes off the “American Werewolf in Paris” soundtrack, enjoying the sounds of rage and destruction, then switching over to the sweet sounds of Frank Black as we neared Walnut Creek. There, at Tokyo Lobby, our favorite sushi bar, we unwound with the natives, enjoying excellent sushi, multiple color TVs, and impeccably polite service from the very Japanese waitresses, in short, a heroic repast. Afterwards, we got lattes from the Starbucks across the street and resumed our course for Oregon. By midnight, we were back in the cool mountains, seeing the bright stars.