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3-2 Brief in Opposition to Motion to Proceed With Discovery

3-2 Brief in Opposition to Motion to Proceed With Discovery

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Published by AviS.Adelman
Plaintiff's Brief in Opposition to Motion to Proceed with Discovery, 3-2-2013
Plaintiff's Brief in Opposition to Motion to Proceed with Discovery, 3-2-2013

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Published by: AviS.Adelman on Mar 03, 2013
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02/13/2015

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- 1 -
CAUSE NO.: DC-12-10604
MELISSA KINGSTON, § IN THE DISTRICT COURT§Plaintiff, §§v. § DALLAS COUNTY, TEXAS§AVI ADELMAN, §§Defendant. § 44
th
JUDICIAL DISTRICT
DEFENDANT’S
SUPPLEMENTAL BRIEF IN OPPOSITION TO
PLAINTIFF’S
MOTIONS TO PROCEED WITH DISCOVERY
TO THE HONORABLE JUDGE CARLOS CORTEZ:P
ursuant to the Court’s directive during a hearing on February 28, 2013,
Defendant AVIADELMAN files this supplemental brief with the Court.
I. QUESTIONS PRESENTED
1. Are the timing requirements in T
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§27.004 jurisdictional?2. If Plaintiff failed to secure a hearing within 30 days of serving its Anti-S.L.A.P.P.Motion to D
ismiss, and the Court’s docket conditions would have allowed a hearing much
sooner than March 4, 2013, should the Court grant a full hearing on the merits of the motion?
II. ARGUMENT & AUTHORITIESA. The mandatory provision of Section 27.004 does not make the statute jurisdictional.
3. “When construing a statute, courts must be mindful that there is a presumption
againstfinding a statutory provision to be jurisdictional.
1
 
But, “
 just because a statutory requirement is
mandatory does not mean that compliance with it is jurisdictional.”
2
 
1
TJFA, L.P. v. Tex. Comm'n on Envtl. Quality & BFI Waste Sys. of N. Am., Inc., 368 S.W.3d 727,731 (Tex.App.
 — 
Austin 2012, pet. denied) (citing City of Desoto v. White, 288 S.W.3d 389, 394(Tex. 2009)).
 
- 2 -4.
The “presumption may only be overcome ‘by clear legislative intent to the contrary,’”
3
 and in order to determine whether a statutory requirement make the statute jurisdictional, the
Court’s goal should be to ascertain legislative intent by examining the statute’
s plain language.
4
 
Further, the Court should “
consider the statute as a whole rather than its isolated provisions.
5
 5. The Legislature, in enacting the TCPA, gave clear direction as to how courts are to
construe the Act. The TCPA “shall be construed liberally to effectuate its purpose and intentfully.”
6
 
The Legislature clearly stated that the intent of the TCPA “is to encourage and safeguard
the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect
the rights of a person to file meritorious lawsuits for demonstrable injury.”
7
 6. Plaintiff has made no showing that the Legislature intended to make Section 27.004 to be jurisdictional, or that holding Section 27.004 furthers the purpose and intent of the TCPA, or the direction to construe its provisions liberally to achieve its purpose.7. Further, besides the plain language of the statute, the legislative history provides noevidence that Section 27.004 was intended to provide a plaintiff a sword or means to avoid anAnti-S.L.A.P.P. motion to dismiss from being considered on the merits. On the floor TexasSenate, when the TCPA was being presented and debated, not one senator spoke in opposition,
2
Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999).
3
TJFA, L.P. v. Tex. Comm'n on Envtl. Quality & BFI Waste Sys. of N. Am., Inc., 368 S.W.3d 727,732 (Tex.App.
 — 
Austin 2012, pet. denied) (citing City of Desoto v. White, 288 S.W.3d 389, 394(Tex. 2009)).
4
City of Desoto v. White, 288 S.W.3d 389, 394 (Tex. 2009).
5
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
6
T
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§ 27.011(b).
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§ 27.002.
 
- 3 -and the bill passed unanimously. The only debate or commentary on the Senate floor was that of Sen. Rodney Ellis, who stated:
“…Members, this is the anti
-slap [sic] statute. The Texas citizen participation about which will protect Texans' rights of speech from punitive, meritless lawsuits. House Bill 2973 on the -- passed the Housecalendar's committee and passed the House floor 142 to zero. Members, ananti-slap, anti-strategic lawsuit against public participation legislation protects all Texans petitioning the government on speaking out aboutmatters of public concern.
This bill creates in Texas a way for peoplewho have been subjected to slap lawsuits to protect themselves fromhaving to give into the plaintiff who has greater resources or otherpower rather than spend thousands of dollars defending themselves.
 Members, anti-slap statutes have been adopted in 27 other states. It's agood bill and I appreciate the work of Chairman Duncan and again you,Mr. President, the work of the trial lawyers, TLR, the media and everyonecoming to a consensus on this bi
ll…”
8
 The bill enacting the TCPA passed the Texas House unanimously without substantivedebate. The governor signed the bill, and it became law immediately because of its unanimoussupport in both legislative chambers.8. Everything about the legislative history, and the statutory language, suggests the purpose of the Act is to
 protect 
defendants from S.L.A.P.P. suits. Nothing indicates the
Legislature’s intent to deprive the court of jurisdiction over a TCPA motion be
cause a hearing isnot secured in a specified amount of time.9. When construing a statute, the Court should presume the Legislature intended a justand reasonable result.
9
As Senator Ellis pointed out, the primary purpose of the TCPA is to protect defendants sued for unmeritorious claims by disproportionally well-equipped plaintiffs
8
Transcript of Senate debate and comments on HB 2973 by Sen. Ellis, May 18, 2011, Tex. 82ndLeg., R.S. (
available at 
http://www.texastribune.org/session/82R/transcripts/2011/5/18/senate/,lastvisited March 1, 2013) (emphasis added, procedural and ministerial commentary omitted).
9
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G
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§311.021(3);
See also
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001).

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