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博文
桑兰案进展报告
热度 3
有一阵没有关注桑兰案了，昨天看到有帖子说，桑兰方提出与华裔被告和解，这倒也符合与我之前给被告的和解算了的建议。唐人街斗殴何苦呢，网上还出现打手团、粉丝团，逢年过节都还在死掐，试图左右舆论，其实都是枉然。不过，中文网上的传言缺乏可信度，只能查阅案卷了。
看了一下案卷。桑兰的新律师徐律师于1月24日提交了一个动议，要求法庭命令海明移交案件的相关文件。具体内容我没看，但可想而知，一定是海明不把案子的文件转交新任律师，后者只好上法院了。这种事情经常发生，原律师不配合新律师。但这种行为是违背律师职业准则的，如果被告到法庭或者律师协会，根本没有借口可讲。海明要小心了。海明似乎已经发了一个回应。
另外，徐律师针对桑兰案副法官先前的报告与建议提出了反对。他说，某些副法官建议撤除的控告之所以看起来缺乏依据，乃是因为前任律师海明的混乱与不足，如果法庭批准桑兰修改状纸，应该能弥补这些不足。
但是徐律师除了引用了大量案例的文字外，针对桑兰案具体的内容的具体的反对却语焉不详。如果我没有看漏，徐律师具体的反对只有一句话：【equity and other possible tolling factors were not considered when it could or should have been considered and applied under the particular set of facts or circumstances.】也就是说，徐律师认为副法官犯了一个法律的疏忽，在考虑追诉期限时没有考虑某些可能延期的因素。
根据规则，诉讼人对副法官的建议提出反对必须精确指出其事实或法律错误在哪，不能笼统地泛泛而谈。徐律师的反对显得非常的单薄、抽象，法庭或许根本不予考虑。当然了，即使不反对，主审法官必须审查副法官是否正确运用法律，如果真如徐律师所言，出现了法律论证上的疏忽，则即使桑兰不反对，主审法官也可以纠正。
总的来说，徐律师是请求修改状纸，或许要另起炉灶。即使按照原来海明的状纸，根据副法官的建议，桑兰案有三项是无条件成活：（1）被告之一诽谤；（2）侵犯隐私权；（3）因侵犯隐私权引发的违背信义义务。；有三项是需要修改状纸成活：（4）不正当获利；（5）侵吞财产；（6）侵吞基金违背信义义务。
目前我在案卷上没看到原告要求和解的内容---这当然不排除双方正在商议此事，但文件尚未输入系统。这种和解会议一般是民事案件必须走的一个过程。法庭忙得很，巴不得诉讼双方自己了断。很多案子甚至是在陪审团正在考虑的时候，双方和解。
| 08/31/2011 | 73 | MOTION for Ming Hai to Withdraw as Attorney for plaintiff. Document filed by Sang Lan. Return Date set for 9/15/2011 at 09:30 AM.(Hai, Ming) (Entered: 08/31/2011) |
| 08/31/2011 | 74 | AFFIDAVIT of Ming Hai in Support re: 73 MOTION for Ming Hai to Withdraw as Attorney for plaintiff.. Document filed by Sang Lan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Affidavit of Service, # 6 Affidavit of Additional Service by FedEx)(Hai, Ming) (Entered: 08/31/2011) |
| 08/31/2011 | 75 | AFFIDAVIT of Rachel Yang in Support re: 73 MOTION for Ming Hai to Withdraw as Attorney for plaintiff.. Document filed by Sang Lan. (Attachments: # 1 Affidavit of Service, # 2 Affidavit of additional service by FedEx)(Hai, Ming) (Entered: 08/31/2011) |
| 09/01/2011 | 76 | ORDER: that plaintiff and defendants shall submit any response to the motion no later than 9/16/2011 and Ming Hai shall reply by 9/23/2011. (Signed by Magistrate Judge James C. Francis on 9/1/2011) (ft) (Entered: 09/01/2011) |
| 09/08/2011 | 77 | RESPONSE to Motion re: 73 MOTION for Ming Hai to Withdraw as Attorney for plaintiff.. Document filed by K.S. Gina Hiu-Hung, Gina Liu, K.S. Liu, Hugh Mo. (Mo, Hugh) (Entered: 09/08/2011) |
| 09/19/2011 | 78 | REPLY to Response to Motion re: 73 MOTION for Ming Hai to Withdraw as Attorney for plaintiff.. Document filed by Sang Lan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E of emails of Sang Lan and Huang Jian, # 6 Affidavit of Service)(Hai, Ming) (Entered: 09/19/2011) |
| 10/12/2011 | 79 | ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Dispositive Motion (i.e., motion requiring a Report and Recommendation). Referred to Magistrate Judge James C. Francis. (Signed by Judge Leonard B. Sand on 10/11/2011) (ama) (Entered: 10/12/2011) |
| 10/31/2011 | 80 | MEMORANDUM AND ORDER granting 73 Motion to Withdraw as Attorney. Attorney Ming Hai terminated. Because plaintiff's counsel proffers satisfactory reasons for requesting to be relieved pursuant to Local Civil Rule 1.4, and because his withdrawal will not unnecessarily delay the proceedings, his motion to withdraw is granted. The Court shall, however, retain jurisdiction over Mr. Hai in connection with the defendant's motion for sanctions, which will be considered in conjunction with the pending motions to amend and dismiss. Mr. Hai shall immediately deliver a copy of this Order to the plaintiff and turn over to the plaintiff all documents in his possession related to this litigation. By 12/15/2011, the plaintiff shall appear by new counsel or shall advise the Court in writing that she intends to proceed pro se. (Signed by Magistrate Judge James C. Francis on 10/31/2011) Copies Mailed By Chambers. (ae) (Entered: 10/31/2011) |
| 11/21/2011 | 81 | REPORT AND RECOMMENDATION: Plaintiff's motion to amend the complaint (Docket no. 43) should be granted. The defendants motion to dismiss for lack of subject matter jurisdiction (Docket no. 34) should be denied. The defendants motion to dismiss for failure to state a claim (Docket no. 28) should be granted with regard to the plaintiffs claims for defamation against Mr. Mo and Ms. Liu, civil conspiracy, primafacie tort, promissory estoppel, intentional infliction of emotional distress, negligent infliction of emotional distress, and eight of her ten alleged breaches of fiduciary duty. The motion should granted with leave for the plaintiff to re-plead with regard to her claims for unjust enrichment, conversion, and breach of fiduciary duty based on misappropriation of funds. The motion should be denied with respect to the plaintiffs claim for breach of fiduciary duty based on the defendants unauthorized use of her likeness in 2008, for invasion of privacy, and for defamation against Mr. Liu. The defendants motion for sanctions (Docket no. 47) should be denied without prejudice to being reviewed when the extent to which sanctions are proper becomes clear. Objections to R&R due by 12/8/2011 (Signed by Magistrate Judge James C. Francis on 11/21/2011) (ft) (Entered: 11/21/2011) |
| 12/05/2011 | 82 | OBJECTION to 81 Report and Recommendations by the Magistrate Judge Document filed by Sang Lan. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Affidavit of Service)(Hai, Ming) (Entered: 12/05/2011) |
| 12/08/2011 | 83 | OBJECTION to 81 Report and Recommendations by Defendants Document filed by K.S. Gina Hiu-Hung, Gina Liu, K.S. Liu, Hugh Mo, Winston Sie, Wilson Xue. (Attachments: # 1 Affidavit of Translation, # 2 Exhibit Photos of CD and Cover Pages, # 3 Exhibit English Translations)(Mo, Hugh) (Entered: 12/08/2011) |
| 12/14/2011 | 84 | MEMORANDUM: Having successfully moved to be relieved as an attorney after a motion to withdraw as attorney for plaintiff, Ming Hai has no standing to file any documents on behalf of plaintiff in this capacity. He seeks standing to file in the capacity of a party against whom defendants continue to seek monetary sanctions but his 23 page memorandum is not limited to the questions of this alleged liability. This document is not received on behalf of the plaintiff and will not be so regarded by this Court. If plaintiff wishes to file a document in response to the Magistrate's report she may do so by 1/31/2012 but not thereafter. Set Deadlines/Hearing as to (Objections to R&R due by 1/31/2012) (Signed by Judge Leonard B. Sand on 12/14/2011) (ft) (Entered: 12/15/2011) |
| 12/15/2011 | 85 | NOTICE OF APPEARANCE by X. Bing Xu on behalf of Sang Lan (Xu, X. Bing) (Entered: 12/15/2011) |
| 12/15/2011 | 86 | RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Sang Lan.(Xu, X. Bing) (Entered: 12/15/2011) |
| 01/23/2012 | 87 | FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION to Compel Ming Hai to turn over documents. Document filed by Sang Lan. Return Date set for 2/23/2012 at 09:00 AM. (Attachments: # 1 Affidavit Affirmation in support of Motion to Compel, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Supplement Case, # 8 Supplement Case2)(Xu, X. Bing) Modified on 1/24/2012 (ldi). (Entered: 01/23/2012) |
| 01/23/2012 | ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney X. Bing Xu to RE-FILE Document 87 MOTION to Compel Ming Hai to turn over documents. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Affirmation in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 01/24/2012) | |
| 01/24/2012 | 88 | FILING ERROR - DEFICIENT DOCKET ENTRY - AFFIRMATION of Sang Lan in Support re: 87 MOTION to Compel Ming Hai to turn over documents. Document filed by Sang Lan. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Xu, X. Bing) Modified on 1/24/2012 (ldi). (Entered: 01/24/2012) |
| 01/24/2012 | 89 | FILING ERROR - DEFICIENT DOCKET ENTRY - AFFIRMATION of Sang Lan's former attorney Ming Hai in Opposition re: 87 MOTION to Compel Ming Hai to turn over documents.. Document filed by Sang Lan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Hai, Ming) Modified on 1/24/2012 (ldi). (Entered: 01/24/2012) |
| 01/24/2012 | ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney X. Bing Xu to RE-FILE Document 88 Affirmation in Support of Motion. ERROR(S): Document linked to filing error. (ldi) (Entered: 01/24/2012) | |
| 01/24/2012 | ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Ming Hai to RE-FILE Document 89 Affirmation in Opposition to Motion. ERROR(S): Document linked to filing error. (ldi) (Entered: 01/24/2012) | |
| 01/24/2012 | 90 | MOTION to Compel Ming Hai to Turn Over Documents. Document filed by Sang Lan.(Xu, X. Bing) (Entered: 01/24/2012) |
| 01/24/2012 | 91 | AFFIRMATION of X. Bing Xu, Esquire in Support re: 90 MOTION to Compel Ming Hai to Turn Over Documents.. Document filed by Sang Lan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Xu, X. Bing) (Entered: 01/24/2012) |
| 01/24/2012 | 92 | AFFIRMATION of Sang Lan in Support re: 90 MOTION to Compel Ming Hai to Turn Over Documents.. Document filed by Sang Lan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit B1, # 4 Exhibit B1 translation)(Xu, X. Bing) (Entered: 01/24/2012) |
| 01/25/2012 | 93 | AFFIRMATION of Sang Lan's former attorney Ming Hai in Opposition re: 90 MOTION to Compel Ming Hai to Turn Over Documents.. Document filed by Sang Lan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Hai, Ming) (Entered: 01/25/2012) |
| 01/26/2012 | 94 | RESPONSE re: 81 Report and Recommendations,,,,, 84 Order, Set Motion and R&R Deadlines/Hearings,,,,,,. Document filed by Sang Lan. (Xu, X. Bing) (Entered: 01/26/2012) |
