The Dreadful Pro-Se Schmalfeldt™ seems bound and determined to shoot himself in the foot. He’s now ranting about having a motion ready on Monday to reopen his counterclaim against “Paul Kindler” and me. (It will be interesting to see how successful he is filing it on Labor Day.)
Under the terms of our settlement agreement, Local Rule 111, and Judge Hollander’s settlement order, the Cabin Boy™ has the right “to move for good cause within 30 days [of 15 August, 2014] to reopen this action if settlement is not consummated.” My only obligations under the settlement agreement were to dismiss my amended complaint (done), refrain from republishing any of the Cabin Boy’s™ material (so far, so good), and to bear my own costs related to the lawsuit (done). “Paul Krendler” has no obligations under the settlement agreement—he is not a party to it. Thus, as far as my side of the bargain is concerned, the settlement agreement has been/is being consummated. One wonders where he will find “good cause” that I have not delivered on my part of the deal.
Indeed, the only breach of the agreement has been by TDPS™. He thought he could get away with publishing in his recent book material from Hogewash! as exhibits from one of his court filings. However, what he published was not from the actual court documents but from his working files used to create the documents. I suppose he could argue that he should be able to reopen the case since he breached the agreement, but … no … surely TDPS™ isn’t stupid enough to try that.
There’s one other thing that TDPS™ may want to consider. If he petitions to reopen the action, he can’t reopen just his counterclaim. He will be asking that the Hoge v. Schmalfeldt lawsuit be reopened. That means he will be facing the copyright suit again.
I will not be amused.
UPDATE—The Cabin Boy™ really shouldn’t rely on Acme for his legal opinions. Here’s the actual settlement order.
Note that the order refers to “this action” being dismissed. By “this action” Judge Hollander is referring to the one in the caption, i.e., “Hoge v. Schmalfeldt, Ciivll Action No. ELH-14-01683.” The order permits reopening “this action” if the settlement is not consummated. That means my copyright lawsuit. There is no provision for opening just the counterclaims.
If The Dreadful Pro-Se Schmalfeldt™ wants to pursue those claims without having to face the copyright suit, he will need to file his own lawsuit. If he wants to file in federal court ($400 filing fee), he will need to find a legitimate federal cause of action or he will have to drop me from the case in order to have diversity of citizenship. Or he could file a state suit ($135 filing fee). Either way, he would open himself up for counterclaims and some rather interesting and intensive discovery.