1:50pm PT by Jonathan Handel
Bryan Singer, Other Sex Abuse Defendants Could Face Long Court Battle (Analysis)
When Michael Egan's lawyer chose Hawaii federal court as the forum in which to sue director Bryan Singer and three Hollywood executives for 1999 child sexual abuse at estates in Los Angeles and a half-hour outside of Honolulu, he made a decision that was both strategic and risky: strategic because of its effect on the defendants but risky because of the possibility that Egan might be tossed out of court prematurely. A legal analysis by The Hollywood Reporter highlights the risk, reveals the likely next steps in the litigation, and suggests that the gamble by Egan's lawyer, Jeff Herman, may pay off — if he has the witnesses he claims to.
First, understand the basics: For a court to hear and decide a case, it must have subject matter jurisdiction and personal jurisdiction, two distinct concepts. The most common form of subject matter jurisdiction for a federal court is matters of federal law, such as copyright, for instance, or federal criminal statutes. But another form of subject matter jurisdiction is called "diversity jurisdiction," i.e., when the plaintiff and defendant in a civil suit are from two different states and the amount in controversy exceeds $75,000, the plaintiff can sue in federal court even if the dispute is based on state law. In these cases, the federal judge is tasked with applying state law.
That's what's happening here. According to the complaints, Egan is a citizen and resident of Nevada and the defendants are citizens and residents of California. The complaints state that the amount at stake "exceeds $75,000" — obviously, potential damages in these cases far exceed that figure, but that amount is all that need be pleaded in the documents at this point.
So Egan can get his case heard in federal court, but which one? That brings us to the concept of personal jurisdiction. One type of personal jurisdiction is called "general jurisdiction." It arises in various ways, some of which are complex, but owning a home or living in a particular judicial district are easy examples. Thus, Egan could have chosen to sue the defendants in Los Angeles federal court. The Los Angeles federal judge would then have had to apply Hawaii state law, which sounds like it would put the judge rather far afield from his or her usual diet of federal and California law, but that's how the system works.
Instead Egan — or more precisely, his lawyer Herman — chose to sue in Hawaii. The strategic reason is easy to understand: it takes the defendants out of their comfort zones. They can't go back home every night after court and sleep in their own beds. They can't easily pack the hearing chamber with their friends and supporters. Instead, they'll be stuck out on a rock of an island. And they'll have to hire unfamiliar local co-counsel with their L.A. lawyers having to argue in front of possibly unfamiliar judges, Chief Judge Susan Oki Mollway and Magistrate Judge Barry Kurren.
But can Egan sue in Hawaii federal court — in other words, does the court have personal jurisdiction over the defendants? Yes — if they did indeed commit wrongful acts there. This is called "specific jurisdiction," because it's a form of personal jurisdiction that's specific to the case. This will require showing that the defendants were at the Hawaii parties. Herman says he has witnesses who say they were; the defendants say they weren't, and at least one of them — Singer — says through his lawyer that he has documents and witnesses to prove he wasn't.
And that's where the case gets even more interesting, since a dispute between witnesses — in this case, probably a lot of he-said, he-said, with few distaff witnesses in sight — on a core issue of the case is exactly the sort of thing that's supposed to be resolved at trial and by a jury if one has been demanded (as Egan has). Yet jurisdictional matters are fundamental: The cases shouldn't even be in a Hawaii court if the defendants weren't at the parties.
Or more precisely, a particular case shouldn't be in a Hawaii court if the particular defendant wasn't at the Hawaii parties. The cases will each rise and fall in part on their own evidence, and its possible that some defendants might be able to prove their absence while others cannot.
But when, procedurally, do they get to do so? Although the lawsuits were filed in the last two weeks, the defendants haven't been served with them yet. Herman says he's in the process of doing so, while at least one defendant's lawyer suggested that the real reason for the delay was to drag out the time period during which only Egan's side of the story was reflected in the public legal documents.
In any case, once a defendant is served, the clock begins ticking and they have 21 days to file a responsive pleading, such as a motion to dismiss for lack of personal jurisdiction. The plaintiff would then have the right to file an opposition to the motion. Both sets of documents — the motion and the opposition — are likely to be festooned with declarations from witnesses, as well as any supporting documents. Singer's lawyer, Marty Singer (no relation), says he has credit card slips, cellphone bills and film production schedules, as well as over a hundred witnesses, that will place Singer elsewhere during the Hawaii parties — the dates of which are specified in the complaint no more precisely than as taking place between Aug. 1 and Oct. 31, 1999.
Confronted with dueling declarations, the judge can do one of two things. Which one she or he chooses could mean the difference between possibly disposing of the case in the next few months or having the matter drag on possibly to trial, a process that can take 18 months or more.
One option is to decide the motion on the papers — that is, read the declarations and other documents and make a decision. If the judge chooses this route, the plaintiff need only make a "prima facie case" for jurisdiction. This is a minimal requirement. "Under th[e] prima facie burden of proof, the plaintiff need only establish facts, through admissible evidence, that if true would support personal jurisdiction over the defendant," the 9th Circuit said in Ballard v. Savage, a 1995 case.
That is, the plaintiff gets the benefit of the doubt, even if the defendant has a lot of evidence to the contrary. The plaintiff might even get to conduct limited discovery, which could undermine the defendant's witnesses, or even result in finding another basis for personal jurisdiction altogether, such as ownership of a vacation home in Hawaii. That could provide grounds for general jurisdiction, obviating the need to argue for specific jurisdiction (presence at the parties).
A different approach the judge could take is to hold an evidentiary hearing where she would get to look the witnesses in the eye and try to determine which ones are lying if she hears inconsistent testimony. That procedure sounds like it has much to recommend itself in a case like this, but it could effectively accelerate issues that would normally be addressed at trial.
And for that reason, it turns out that in the 9th Circuit — the court of appeals region that includes Hawaii (and California too) — such evidentiary hearings are disfavored when the jurisdictional issues are tied up with questions that go to the merits of the case itself.
"Where the jurisdictional facts are intertwined with the merits," said the 9th Circuit in a case called Data Disc v. Systems Technology Associates, "it is preferable that this determination [of personal jurisdiction] be made at trial, where a plaintiff may present his case in a coherent, orderly fashion and without the risk of prejudicing his case on the merits."
That's not good news for the defendants, because it could leave them twisting in the wind until the cases go to trial months later (although it might be possible that other motions could revisit the issue sooner).
Moreover, the judge's decision on personal jurisdiction is likely to be appealed however it turns out. The standards for such appeals are complex.
In any case, the matter of whether to hold a hearing is still up to the district judge, and judges are notoriously unpredictable. If Singer, for example, presents dozens of declarations plus a stack of exonerating documents, the judge might deem it unfair not to hold a hearing and weigh the evidence. She has the power to do that, even though it seems unlikely.
"You can't say, 'We're going to have a mini-trial on the ultimate issue in the case,'" says Honolulu litigator Phil Brown, who has blogged on issues of personal jurisdiction in Hawaii (here and here). Such a hearing "would be highly unusual."
Brown acknowledged that "this is an unusual case [and a hearing] is possible," but added "I don't think they're going to get one." (Brown has served as local co-counsel in the past for Marty Singer on an unrelated matter, but is not involved in these cases.)
Moreover, the other defendants might not be as lucky as Bryan Singer if they don't have as much exculpatory evidence — for instance, some of Singer's documents are probably coming from his business manager, whereas its possible one or more of the other defendants don't have business managers and may not have their receipts from 1999. In addition, Marty Singer says Singer was in production on X-Men during at least part of the time he is alleged to have been in Hawaii. If so, that would give him a whole film crew of witnesses, which might be far more people than the other defendants can muster.
Still, if Singer manages to destroy the credibility of Egan's witnesses, that might damage Egan's case against the other defendants too if the same witnesses who are alleging Singer's presence in Hawaii are alleging their presence as well. For that reason, it's possible that if the judge decides to hold a hearing for Singer, she'll make it a combined hearing for all.
That last issue points to an incentive for the defendants to coordinate their defense, but very carefully. Joint defense situations are tricky, especially if some defendants actually did commit wrongful conduct while others didn't. At the end of the day, each defendant has to be judged on his own — but inevitably their fates are at least somewhat linked, and they may have to struggle with that for the next 18 months. And that's not counting the inevitable appeals from motions and from the ultimate verdict, if any. An evidentiary hearing on personal jurisdiction may be the defendants' best hope at foreshortening the process, but getting one looks to be an uphill battle.