Clonie vs. Full Tilt: Case Dismissed?

Maybe kinda-sorta, but not really

by , May 7, 2009 | 12:59 pm

2+2 is speculating that “Clonie Gowan’s suit against Full Tilt dismissed” [sic].

PokerNewsDaily followed suit:

With the majority of the case being dismissed with prejudice and only Tiltware, Bitar and Lederer eligible for any further action, Gowen’s lawsuit appears to be dead at this time.

And then PokerNews reported “Gowen Lawsuit Against Full Tilt Dismissed”.

These hedlines are for the most part inaccurate, and at a minimum misleading. Clonie’s lawsuit is still alive … the courts have simply stripped out some irrelevant defendants while considering motions for expedited discovery, and her team has 30 days to amend their complaints around the still relevant defendants, i.e. Tiltware, Howard Lederer, and Ray Bitar. These recent rulings may be considered setbacks, but it’s not like she has to start from scratch to “refile”.

Read the court documents for yourself:

Gowen Motions Denied
Gowen Hearing Vacated

Now granted, these are a little confusing, so Pokerati has made half-hearted attempts to contact attorneys on both sides of the case, and have received no response from either. We’ve also contacted insiders on both sides of the case, whom literally say the exact same thing: “It’s definitely not over”. To be sure, on both sides, no one’s celebrating nor stomping about wildly screaming “Appeal!” bemoaning these most recent decisions.

In the meantime, to help us understand, Pokerati has brought in an independent, poker-savvy legal expert from a neighboring state to help translate:

Let me break this down into 2 parts:

1. What was the precise order of the Court on the motion to dismiss? I don’t know. The docket only reveals as follows:

MINUTES OF PROCEEDINGS – Motion Hearing held on 4/27/2009 before Judge Robert C. Jones. Crtrm Administrator: K. Goetsch; Pla Counsel: Robert Rosenthal; Def Counsel: Walter Cannon; Court Reporter/FTR #: A. Bareng; Time of Hearing: 10:35a.m.; Courtroom: 7D; The Court shares inclination to grant the dismissal and seeks arguments of counsel with respect to which parties the Court ought to allow amendment. Arguments of counsel are heard. The Court advises that it will issue its written decision GRANTING the 72 MOTION to Dismiss, and allowing amendment as to certain of the parties. (no image attached) (Copies have been distributed pursuant to the NEF – KXG) (Entered: 05/01/2009)

The written decision is not yet available (at least for me to review online). But that highlighted sentence — no matter how you slice it – clearly means the case is not over. The court said it was “allowing amendment as to certain of the parties.” Quote those Minutes of Proceedings – it’s docket entry 103 (enclosed; entered May 1, 2009)

2. What do I *think* was the Court’s order and why do I think that?

I think the Court’s order was to grant the motion to dismiss with prejudice as to everyone except Tiltware, Bitar, and the Professor, against whom the motion was granted without prejudice (and with leave to amend).

I think that was the order based on a combination of (a) the above reading of the minutes of the docket and, (b) trusting Gowen’s lawyers’ description of the ruling in their motion for reconsideration. The relevant part Gowen’s motion is the first sentence here:

Your hypothetical you write below is not unusual – you can sue defendants x, y, and z, and defendants x and y win their motion to dismiss with prejudice and are out of the case for good, but party z only wins the motion to dismiss without prejudice and with leave to amend. The case is not over as to party z – plaintiff gets another bite at the apple, so to speak, if a timely amended complaint is filed.

It is technically accurate to state that Gowen’s case has been dismissed. That’s true. The case was dismissed. But it is misleading to state that the case is over. The dismissal as to certain defendants was without prejudice and Gowen expressly has the right to try again against those defendants. And a smart plaintiff lawyer – given the defendants’ briefing and the Court’s decision – will often try to (if possible) plead around the issues that led to dismissal in the first instance. In other words, you don’t just get another bite at the apple; you get a bite at the apple *knowing* what the defendants’ and Court’s views are on the previous version of the complaint, which is helpful. ((We just wrapped up a case where prior counsel lost two rounds of motions to dismiss; we stepped-in; filed a new, third amended complaint, defeated the next motion to dismiss, and eventually settled; it’s all salvageable, depending on the facts))).

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