Litigant Uses Doctor Who & the Tardis to Explain the “Time of Filing” Rule

There is a rule in the law known as the “time of filing” rule. Simply put, the rule provides that the legal status of a claim is determined at the time the lawsuit involving that claim is filed. This rule is most commonly cited in cases in which a plaintiff tries to create diversity jurisdiction by moving to a different state after filing a lawsuit. Under the “time of filing” rule, such a move doesn’t work because a lawsuit by, say, a California resident against a California resident fails to qualify for diversity jurisdiction simply because the plaintiff subsequently moves to another state (e.g., Oregon).

Sometimes legal concepts are best explained by reference to science fiction. For instance, I teach my Criminal Law students about proximate causation by discussing the classic Ray Bradbury short story, “A Sound of Thunder.” The defendants’ brief in Righthaven, LLC v. Newsblaze, LLC, 2011 WL 5143472 (D.Nev. 2011), does the same thing for the “time of filing” rule by citing to the timeless BBC show “Doctor Who,” which just returned for its new season.

In Newsblaze,

Righthaven filed a complaint against Defendants [on May 5, 2011]…for copyright infringement….Newsblaze is a website and Gray is the president and publisher of the website….The complaint alleges that, on March 8, 2011, Defendants displayed and continue to display an unauthorized reproduction of a Las Vegas Review Journal article entitled “Robert Guerrero Takes His Training Camp to Las Vegas.”…On April 29, 2011, Righthaven registered the work with the United States Copyright Office….Righthaven seeks injunctive relief and damages.

Righthaven claimed that it could bring such an action based upon a Strategic Alliance Agreement it had with Stephens Media LLC; the Agreement generally governed the relationship between the two parties with regard to the assignment of copyrights originally owned by Stephens Media. The problem for Righthaven, however, was that this Agreement was apparently defective, which is why it executed an Amendment and Restatement of the Agreement in July 2011, i.e., after it brought suit against Righthaven. In response, Newsblaze moved to dismiss, noting that

Righthaven is bound by the facts as they existed at the time it filed suit on May 5, 2011 (Doc. # 1) – before its “Clarification”.. was effective, and long before this latest Restatement was signed….Righthaven cannot now claim that the facts as they existed at the time of filing have changed – in fact, they have done so already, each time being rebuffed by this District for doing so. Righthaven cannot now step into a TARDIS[FN1] and change the transaction by which it obtained its copyright rights at the time of filing, and indeed it has not – in fact, Righthaven repeatedly has attempted this, each time being rebuffed by this District, and resulting in judgment entered against it.

[FN1] The Time And Relative Dimensions in Space machine, or “TARDIS,” is the device used by The Doctor to travel through space and time in the long-running British Broadcasting Corporation series Doctor Who. See http:// www.bbc.co.uk/doctorwho/characters/tardis.shtml (last accessed July 27, 2011).

The lesson of Newsblaze is simple: A party can only enforce rights that existed at the time it filed a lawsuit. Any attempt to fix defective rights can work prospectively but not retrospectively. In other words, such an attempt can’t travel back in time. In the real world, the only time machines are amusement park rides,* and litigants can’t take back what’s already been done.**

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*Really.

**Except for in cases with conditional pleas or clawback agreements.

-CM