DDI files motion to withdraw... their case summary??

[David Brown]

New developments are afoot in DDI v. Barrett, and their exact meaning
and import may not become clear until a new status hearing on February
1. But, followers can continue to take to things as givens. First,
DDI can't win, and their only options apart from immediate, outright
defeat are a) extent their case's lifespan with legal technicalities
and b) ask Barrett to LET them withdraw their case, preferably with
the further offer of money to pay for his expenses. Second, Tim Bolen,
who presumed to threaten other bloggers by claiming he could contact
DDI and cause them to be added as defendants, will be the last to know
of any developments and/or admit their real importance.

The first development to come to my attention was that, on or around
January 18, DDI filed a “motion for clarification of order”, which
stated in part, “On January 11, 2011, this court, Judge Chang
presiding, entered a minute order which was communicated to the
parties' attorneys by email. This order states: '... Hearing reset to
2/1/11 at 8:30 am. On defendants' motion (39) for order of sanctions
against plaintiff pursuant to Fed. Civ. P. 11, or in the
alternative... for an Order to Plaintiff's attorneys to show cause why
the Second Amended Complaint has not violated Fed. R. Civ. P. 11...'
Plaintiff intends to fully comply... However, it is concerned that
said order has been entered without awareness of certain potentially
time-sensitive issues, namely: A prior briefing schedule, and a
statutory time constraint...Plaintiff hopes and trusts this court will
not announce, at the status hearing of February 1, 2011, that 28 days
of the ICPA's 90-day time period have elapsed, or otherwise deny
Plaintiff the opportunity to respond to Defendants' unfiled
briefs...” The gist of this motion appears to be that DDI ASKS FOR
MORE TIME. It will be recalled that DDI's almost-certainly self-
appointed “publicist” Tim Bolen has gleeful cited every request by
Barrett for more time as evidence that Barrett was about to lose. It
is also interesting to note the irony of DDI citing “time-sensitive
issues” after Barrett strongly contended that they failed to file
their suit before a statute of limitations expired.

The next development, as of January 21, was the filing of DDI's
Bizarro-world case summary, in which they try to play the aggrieved-
and-deceived part. In an especially pathetic and hypocritical
gesture, they complained, “On October 22, Counsel for the Parties
participated in a conference call in order to begin preparing a
planning report. Afterward, Plaintiff's attorneys worked hard to
prepare a reasonable draft... and submitted it to the Defendants'
attorneys, who feigned cooperation while preparing the aforesaid
motions. As a result, Plaintiff's Attorneys' draft planning report is
obsolete, and the time they spent working on it was wasted.” DDI
would have done well to consider the other side's perspective. Early
last fall, there was talk that they might drop counts and even a
defendant in the second amended complaint, which I credited to them as
at least obliquely discrediting the Bolenator's gibberings about
“NEWDEFENDANTS!!!!!” Then the second amended complaint came, with the
defendant and counts unchanged. Thus, one might understandably feel
that THEY failed to act in good faith then, so they would do well to
be less judgmental themselves.

A week later, DDI took the curious step of filing a motion requesting
that their first status report be withdrawn, and a “joint status
report” be substituted for it. On seeing this motion mentioned, my
first impression was that the “motion to withdraw” was an actual
request to withdraw the case, which is just about the only sensible
thing for DDI to do. I was disappointed to learn otherwise, not just
because I am very eager to see this case put down, but because I would
like to credit DDI with at least the intelligence and sanity to act in
their own best interests. On consideration, however, I think what has
transpired amounts to the same thing. Barrett's actions have been
consistent with a strategy of increasing the risks for DDI if they
continue the case, with the most recent and striking escalation being
a motion for sanctions. This has reduced the future of the case to
how long DDI (and their lawyers) would continue to bluff in the face
of rising stakes. By offering to withdraw their status report, in
favor of one composed by both sides, DDI has finally backed down. It
is at least conceivable that they are already setting things in motion
to withdraw their case. If they are not, it is fair to say that, as
soon as DDI backed down on even a minor issue, they started a course
that will predictably end in voluntarily withdrawing their suit.

In another interesting development, Barrett has filed a motion to add
another attorney, one Laura Balson. Balson is, by all indications,
an experienced lawyer, with 14 cases listed in PACER, who has
represented both defendants and plaintiffs in various legal actions.
In five cases where she is listed as a defendant's counsel, two were
settled and one was dismissed for other reasons. Her entry may signal
the approach of a settlement, which would undoubtedly consist of DDI
voluntarily paying Barrett's legal fees. It is also worth noting that
Barrett now has FOUR lawyers. Those who have followed “reporting” on
the case will recall that from last July to as late as September, Tim
Bolen was variously predicting Barrett would lose or claiming he had
already lost because he supposedly had NO attorney.

I also used the occasion to look up Michael Botts on PACER. It will
be recalled that Bolen has claimed that Botts is “not a litigator” and
that he represented Victor Herbert in a 1987 suit where Herbert lost
$3,000 dollars, supposedly “half of what he owned”, to Frank Weiwel
the American Quackery Association. Bolen never explained why
appearing in court would NOT qualify Botts as a “litigator”, nor did
he ever provide any documents or details that could confirm that the
case he described even existed. PACER reports that Botts did, in fact,
represent Herbert in the suit of Lieberman, et al v. Amer Dietetic
Association. However, PACER indicates that the suit was filed in
1994, SEVEN YEARS LATER than the alleged action Bolen describes,
makes no mention whatsoever of Weiwel, and give no obvious reason why
Herbert (not identified as a plaintiff OR defendant) would have been
responsible for the caused of a settlement. It does not help Mr.
Bolen that PACER does not record any other case involving Herbert, or
a SINGLE ONE involving Weiwel. Thus, it would appear that Bolen has
to count on others' willingness to take his word on good faith for his
account of “Herbert v. Weiwel” to be accepted, in which case he
chainsawed the branch out from under himself long ago.

Meanwhile, what of the Bolenator? Well, I just noticed he has another
post up, gloating about “quackpot desperation levels” with bizarre WW2
comparisons, which, strikingly, has NOT (yet?) appeared on usenet's
misc.health.alternative group. I can get to that soon enough. What
is of far more interest is his December 29th post with its self-
summarizing title, “Are Barrett's Handlers About To Buy Off Terry
Polevoy?” It would be easy to write this off as nothing more than
self-delusion. But, it is suspiciously convenient that, by concocting
and then building upon this fantasy, he has supplied himself with the
workings of a convenient excuse when DDI loses (or simply bails out
of) their suit.