Jessica Jones works as an independent contractor for the fictional law firm Hogarth, Chao & Benowitz LLP. Jeri Hogarth retained Jones to serve a summons on the owner of a gentleman’s club in a negligence case where a dancer suffered a traumatic brain injury falling off a stage.
Jones serves the summons on the Defendant after waiting for him to leave a nightclub. Service was made after picking up the back of the Defendant’s car, serving him the summons, and taking a cell phone photo of the Defendant.
Was this proper service of process?
Every civil lawsuit requires effective service of process for a court to have jurisdiction over someone. Service of process can be made by personal delivery; certified mail; and alternative service of process by court order, such as publication or email. NY CLS SCPA § 308. Proof of service must state the papers served, who served the papers, including the date, time, address, or manner of service, and description of who was served. NY CLS SCPA § 306.
Defendants can challenge service of process in New York in a “Traverse Hearing.” The Plaintiff has the burden to prove by a preponderance of the evidence that the Defendant had proper service of process. LePatner & Assoc., LLP v. Horowitz (Sup.Ct.) 2009 NY Slip Op 29092, ¶ 3. This can be shown with an affidavit by the process server, which is prima facie evidence of proper service. Id. A Defendant cannot issue a conclusory denial of receipt of service to rebut the presumption of proper service created by a properly executed affidavit of service. A Defendant must make a factual showing to controvert the presumption that service of process was proper. Id.
Jessica Jones could prepare an affidavit stating when and where she served the gentlemen’s club owner. Moreover, the smartphone photo with location metadata would verify the time and place of the service of process. This would be a very powerful affidavit demonstrating proper service of process.
The issue is Jessica picking up the Defendant’s car. The Defendant could claim Jessica assault him by picking up his car and then threatening him with her “laser eyes.”
This argument would fail. First, most assault cases would find the person with a car to be more dangerous than a pedestrian. Secondly, Jessica is super strong, but she does not have laser eyes. The Defendant’s claims would look wildly insane, and not factually specific to trigger a Traverse Hearing.
Can the Advanced Threat Containment Unit (ATCU) put people exposed to Terrigen Crystals in suspended animation? There are a host of issues with freezing people, but the ATCU has justified the practice on the grounds the Inhumans are “sick,” thus require being placed in suspended animation until they can be cured, out of the need for public safety.
The Marvel Cinematic Universe has a precedent for placing prisoners in suspended animation. The Abomination was frozen, likely given the complexity it would take to imprison him. It was never stated whether the Abomination had a trial, but there was no question he went on a killing spree in New York City.
People exposed to Terrigen Crystals in fish oil are in a very different category. In states such as California, a peace officer must be able to point to specific and articulable facts that a person has a mental disorder and is a danger to themselves or others to place them on an involuntary hold for 72-hours. Cal Wel & Inst Code § 5150.
Placing people with infectious diseases in quarantine is a legitimate exercise of police power. Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health,186 U.S. 380, 387-388 (U.S. 1902). However, that requires people have a disease that can be passed on to others. Having super powers is certainly a condition, but not a transmittable disease.
A school can send a student home if the student has lice to prevent the spread of the parasites. Being an Inhuman could be similar, expect instead of bugs living in your hair, you breathe fire. There is no special shampoo for breathing fire.
The ATCU is holding people against their will, without a trial, in suspended animation. The ATCU does have an argument that people who suddenly have powers are a danger to those around them that does require treatment. However, being an Inhuman is neither a disease nor a mental disorder that means they are a danger to others. A new Inhuman might not be able to control their powers, but that does not mean they have engaged in conduct warranting being held against their wills.
Supergirl had an excellent premier, with homages to the 1978 Superman, Super-Friends, and honoring past actors who wore the House of El’s iconic symbol of hope. Bravo.
The episode left me wondering…has the government known all along that Kara was from another planet? Just how did Ma and Pa Danvers forge documents creating an identity for a teenager from another planet? Did the government assist with a cover-up of alien life? How did Kara have proof of vaccinations to attend public school?
While these questions highlight that lawyers can suck the fun out of life, they pose interesting issues.
First things first: Kara’s mother Alura In-Ze was a Judge. Rock on.
Kara’s foster parents would have had a far easier time with establishing a life for Kara with the aid of the government. It is unlikely Kara’s mom packed a birth certificate before Krypton exploded, so the Federal government assisting in creating a human identity for Kara would remove a lot of challenges. If not, it is highly likely Kara’s foster parents engaged in computer fraud and identity theft in order to create a new life for their adopted daughter. This would give new meaning to the term “illegal alien.”
The Federal Government (and specifically INS) could have given Kara top-secret refugee status. The law does not currently address a child escaping an exploding planet, but there is no doubt she is a refugee. Moreover, the government would not want to announce to the public the existence of aliens, given the societal and political backlash that would follow.
Supergirl does not exist in the cinematic world of Man of Steel, so the planet has not endured the trillions of dollars of damage from the battle with General Zod. This version of Superman might have the credibility from having saved the Earth multiple times for years, so asking the Government for a “favor” in creating an identity for his refugee cousin would not be asking for much.
Kara’s first act of heroism was saving a plane from crashing. The news coverage is overall positive, but there is criticism calling her a “human wrecking ball.”
Supergirl had no duty to rescue the crashing plane. If she had not taken any action, the plane would have crashed either in or around the city. There would have been 100% loss of life on the plane and mass casualties on the ground, especially if the plane crashed in a residential neighborhood.
Kara’s duty after beginning to rescue the plane was not to put it in a worse situation. She avoided colliding with the bridge, which would have resulted in loss of life and catastrophic property damage. Moreover, she made a successful water landing, thus avoiding injuring people on the ground (there is the matter of jet fuel in water, thus the Coast Guard would be busy with environmental clean-up, but that is better than hitting a building). Whether or not the flight attendants instructed passengers to put on lifejackets before exiting the plane is unknown, but that would fall on the airline’s duty as a common carrier, not Kara.
The more interesting question is whether or not the Government could, or should, keep secret there are alien criminals with super powers roaming the United States, with unknown plans, and hostile intentions towards Earth. Regardless of that answer, I look forward to the rest of the season.
It’s probably safe to say that everyone has been bullied at one time or another in their life. Whether it was in elementary school, high school or at your place of work, someone has pushed you around, berated you, stole your lunch money, made fun of you or called you names. Nationally, more than 13 million American children will be bullied, making it the most common form of violence young people experience. Well, as this October is Anti-Bullying Month and the 30th Anniversary of Back to the Future, the moon and stars have aligned perfectly and provided us with an opportunity to revisit Biff’s Bad Bullying Behavior.
Everyone remembers the movie Back to the Future, right? (How could you not??)
Quick synopsis- In attempt to evade the evil Libyan rebels seeking return of their plutonium from eccentric scientist Dr. Emmett “Doc” Brown, who used the plutonium to power the flux capacitor in his time-traveling DeLorean instead of building them a bomb.
Marty McFly jumps into the Delorean and upon reaching a speed of 88 mph (in the Puente Hills mall parking lot), 1.21 jigawatts of power sends Marty and the car back in time to November 5, 1955- the date parents’ first met. Marty then meets his future parents in high school and accidentally becomes his mother’s romantic interest. In an ensuing caper of errors, Marty must repair the damage to history by causing his parents-to-be to fall in love, and with the help of Doc Brown and find a way to return to 1985.
While helping his to-be father, George McFly, try to woo his to be mother in 1955, Marty inadvertently witnesses several occasions of George being verbally and physically abused by the school bully, Biff Tannen. The most memorable of which is:
This scene, despite Crispin Glover’s adorably dorky demeanor, makes everyone cringe and sink down in their seats. And if you’re like me, it makes you want to jump up and give Biff a swift kick to the boys (if you know what I mean.) However, what is sad is that George takes the knocking on his head, slap and verbal abuse from Biff with a smile and even joins in the laughter when Biff’s friend makes fun of Marty’s “life preserver” jacket. So, would Biff face any repercussions for his bullying behavior in 2015?
Well, what is bullying anyway?
“Bullying” is defined as any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, and including one or more acts committed by a pupil or group of pupils, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following: (A) Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property; (B) Causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health; (C) Causing a reasonable pupil to experience substantial interference with his or her academic performance; (D) Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school. Cal. Educ. Code § 48900.
Bullying is different from harassment because the “bully” is not usually just one person with a grudge but is often a group of schoolmates, or people who were once thought of as friends. Bullying in the modern era is not just a message written on the men’s room wall “for a good time call…”, or name-calling in the schoolyard. Bullying, in the age of social media, is often fairly anonymous and because of the anonymity, typically more vicious and more likely to reach a wider audience, thereby, creating more bullies.
In November 1955, when George and Biff were in high school, bullying existed (obviously), but not much was done by the parents or the schools to deter this kind of behavior. In fact, if you were being bullied, you were likely to be told to turn the other cheek or “man up” and defend yourself (enter the Karate Kid).
However, in the wake of several high-profile suicides among students who were chronically bullied, and after two students, who said they were constantly bullied, attacked and opened fire on their fellow students at Columbine High School in 1999, various states started passing laws to stop bullying behavior among students. In the aftermath of the school shooting and in reaction to a local bullying-related suicide in the state, Georgia became the first state to pass bullying legislation and California followed shortly thereafter. In 2011, California passed the Safe Place to Learn Act located in the California Education Code §234(b) which provides that all students have a right to attend school without discrimination, harassment, violence, intimidation, and bullying and applies to students either at school, at a school function or in transit to or from school. Since then, there have been numerous amendments, revisions and new laws added to the books in California aimed at preventing bullying.
Now, how do these bullying laws affect Biff at all? Well, the answer is, they don’t…(wait for it)…yet. The scene shown above was off campus and while Biff is most definitely committing battery- willful force or violence used against another person, but the likelihood that George is going to go to the police and file a police report is slim to none and slim just left the bar.
Since Biff is basically a giant meathead, we assume that his bullying knows no bounds and would occur on campus and off. In those instances where he is bullying anyone on campus, or in transit to and from campus, the above-mentioned legislation would most definitely get Biff suspended, and eventually, expelled. Moreover, the “Under the Sea” dance is a school function, which would also fall under the above legislation. In addition to the many criminal charges Biff racks up while attempting to rape Lorraine in the car at the dance, Biff also continues his bullying of George and in doing so, almost breaks his arm.
While no one ever saw what happened, except Marty and Lorraine, schools today would have every inch of that parking lot under video surveillance, thus, enabling them to catch Biff in the act of yet more bullying. (With the amount of bullying by Biff just shown during the three days of this movie, I don’t see Biff even graduating from Hill Valley High School.)
Just to throw insult on injury- what does almost every human being on earth have in 2015? A cell phone! If this scenario were to occur today, we all know that Biff, his friends and all of those patrons at the diner would all have their cell phones out taking pictures and videoing George getting bullied by Biff. (Any video would also likely catch that Biff is having George do his work for him, which would lead to other disciplinary issues at school, but one issue at a time.) None of these people videoing the scene would bother to defend George, but all of these videos would wind up on Facebook, You Tube and other social media, leading to George getting ridiculed by even more people at school the next day. Moreover, why waste time bullying someone face to face, when you can do it all day on your cell phone or computer. We all know Biff would be mercilessly bullying George on any social media forum possible (as long as he knows how to work modern technology).
Luckily, thanks to the love of the internet and the cell phone, Biff Tannen and all of those lookie-loos sharing the video could be punished as well. Recently, Assembly Member Christina Garcia proposed AB 881, which becomes a law on January 1, 2015 and centers on protecting children from cyber bullying and reaches beyond the schoolyard to stop bullying wherever it occurs. Previous legislation was written before the explosive growth of electronic devices and instant communication, so AB 881 clarified that an “electronic act” means the creation OR transmission of any communication. This means kids who participate in cyberbullying can now be suspended for cyberbullying even if they were not the one who originated the document. (This bill was supported by the Junior League Long Beach, among others.)
Based on the current laws of California, and those effective in January 2016, Biff Tannen would be suspended…a lot, and most likely, expelled, for his bullying behavior.
Lessons learned here: Justice is sweet. High School sucks. Don’t be a bully, because you could end up in a pile of …
The new Star Wars comic set between Episodes IV and V has added a new spin on Han Solo: A woman named Sana Solo claimed Han is her husband. As quickly as you can say, “I’d sooner kiss a Wookiee,” Han has denied being married to Sana. If Sana were to be believed, this would mean Han abandoned the marriage. Making matters worse for Han, Sana is one ticked off bounty hunter who probably is seeking an extra-judicial resolution.
Let’s just hope that Han Solo does not have a profile on Ashley Madison.
Long, Long, Ago, In a State Far, Far, Away
Sana Solo has not yet produced a marriage certificate from any planet documenting her marriage to Han Solo. As such, we cannot analyze the laws of that planet on marriage. By way of comparison, abandoning a marriage is grounds for divorce in Texas and fault states such as New York. Moreover, abandoning a marriage could be a crime in both Texas and Oklahoma.
A Court may grant divorce for an abandoned spouse if 1) the offending spouse left the complaining spouse with the intention of abandonment; and 2) the offending spouse remained away for at least one year. See, Tex. Fam. Code § 6.005 and NY CLS Dom Rel § 170.
Abandonment cases are as varied as the color of lightsabers. In one case from 1914, a Texas farmer secured a divorce by abandonment of his wife after three years. The wife had claimed to leave the farm for a trip, but never returned. There were repeated attempts to save the marriage, but the farmer was unwilling to give up his farm and the wife unwilling to live on a farm. The Court accordingly found the marriage abandoned by the wife. Dickerson v Dickerson (Tex.Civ.App. 1918) 207 S.W. 941, 942.)
In a New York case, a woman of Roman Catholic faith married a Protestant man in a Protestant church. After the birth of a child and three years of marriage, the wife refused to recognize her own marriage or have sex with the husband unless they were remarried in a Catholic service. Diemer v. Diemer (1960) 8 N.Y.2d 206, 208.
The husband successfully brought an action for abandonment. The Court explained [in very 1960s language that would not fly in most states today]:
That a refusal to have marital sexual relations undermines the essential structure of marriage is a proposition basic to this court’s decision in the Mirizio case and as obvious as it is authoritative. Sexual relations between man and woman are given a socially and legally sanctioned status only when they take place in marriage and, in turn, marriage is itself distinguished from all other social relationships by the role sexual intercourse between the parties plays in it. This being so, it may not be doubted that a total and irrevocable negation of what is lawful in marriage and unlawful in every other relationship, of what unmistakably and uniquely characterizes marriage and no other relationship, constitutes abandonment in the eyes of the law.
It is clear, therefore, that the plaintiff now before us is entitled to a separation on the ground of abandonment unless his wife had good legal cause to refuse to have sexual intercourse with him. And, as to that, it is equally clear that she had neither cause nor justification. Although it appears that she acted without malice and was activated by deep-felt and conscientious religious convictions, her motives were not sufficient in law to excuse the abandonment of her marital status. If, as a result of religious scruples, she considers her marriage invalid or non-existent and, on that account, neglects the fulfillment of a primary marital obligation, in fairness and in law her husband must likewise have the power to free himself of its obligations. While our law is not to be “unnecessarily construed in a manner which would be hostile to religion in family life or to any other of those principles of moral, ethical and considerate conduct which ought to govern the marriage relationship”, we may not forget that this State, “as a matter of long-continued policy, * * * has fixed the status of the marriage contract as a civil contract”, governed by civil, not religious, law. ( Mirizio v. Mirizio, 242 N. Y. 74, 83, supra.) It follows as a consequence of the civil nature of the marriage contract that a wife who disavows her marriage and repudiates a fundamental marital function out of deep-felt religious conviction has abandoned her husband just as effectively as one who has done so for base and illegitimate motives.
Diemer, at *210-211, emphasis added.
Could Sana Solo bring a successful divorce for abandonment case against Han, assuming there is a valid marriage? It would appear so in New York, Texas, and Oklahoma.
However, Sana does not seem interested in divorce.
The Crime of Abandonment of Marriage After Seduction
Han Solo could face serious jail time and fines if the Empire has chastity and marriage laws like Oklahoma:
Any person who, under promise of marriage, seduces and has illicit connection with any unmarried female of previous chaste character shall be guilty of a felony punishable by imprisonment in the State Penitentiary not exceeding five (5) years, or by imprisonment in a county jail not exceeding one (1) year, or by a fine not exceeding One Thousand Dollars ($ 1,000.00), or by both such fine and imprisonment.
21 Okl. St. § 1120.
It is a felony in Oklahoma to abandon a marriage after seduction:
Any person charged by information or indictment with the offense of seduction who shall, before the trial of such charge, marry the female whom he was accused of seducing, thereby procuring the dismissal of such charge, and who shall within two (2) years after said marriage, without the fault of his said wife, such fault amounting to acts committed by her after said marriage as would entitle him to a divorce under the laws of this state, shall abandon her or refuse to live with her, or shall be so cruel to her as to compel her to leave him, or shall be guilty of such outrages or cruelties towards her as to make their living together impossible, thereby leaving her or forcing her to leave him, and live apart from each other, shall be guilty of the offense of abandonment after seduction and marriage; and any person convicted of said offense shall be guilty of a felony and shall be confined in the State Penitentiary for a term of not less than two (2) years nor more than ten (10) years; and said marriage shall be no bar to the qualifications of said female to testify against the defendant; and the female so seduced and subsequently married and abandoned as herein provided, shall be a competent witness against said defendant.
21 Okl. St. § 1122.
Substantially more discovery needs to be conducted to see if Han Solo could be prosecuted for marriage after seduction and abandonment. Han must be a scoundrel, but it is unlikely he would seduce a woman, marry her, and then abandon her.
The Right to Confront Witnesses. Valid Search Warrants. How do confidential informants and undercover police officers testify in Court? These issues are critical to criminal defendants having their rights upheld in Court. How would a Court handle the need for Batman, who is now Jim Gordon since Batman issue 41, testifying in Court so his identity is not made public?
New York State Judge Matthew Sciarrino joined us to discuss how these issues currently play out in Court and how the real world could handle a deputized super-hero who needs to maintain a secret identity.
Dedicated to the inspiring Yvonne Craig and Lenny B. Robinson.
We had an AMAZING time at our first San Diego Comic Con. There were fantastic panels, cosplayers who created costumes with awesome detail, and attendees who represented the joy of being a geek. We were truly honored to celebrate the third anniversary of The Legal Geeks at San Diego Comic Con.
I cannot say enough nice things about US Magistrate Judge Paul Grewal. The Judge might be the first Federal Judge to present at SDCC. Judge Grewal rocked on stage, gave one heck of a presentation, and truly loved Comic Con. I cannot thank him enough for joining Jessica and I on this adventure. Plus he asked to take a selfie with us. Jess and I were truly honored.
Tatooine Law
We were ecstatic that our Star Wars panel filled the room. I estimate that we had between 250 to 300 people in the room. We had a giant line outside the door and filled every seat. My only regret is not everyone was able to get in.
Our audience truly made our presentation experience excellent. We had Star Wars fans of all ages who really love the story, laughed at the humor on the slides, and asked very thoughtful questions on the law.
Our session highlighted to me that discussing legal issues through popular culture is an excellent way for community outreach. Many members of the public do not understand “The Law” and others are afraid of “the Courts.” Going over property rights by studying the ownership history of R2D2 and C-3PO, or Darth Vader modifying the deal with Lando, are great ways to illustrate legal issues for people who would like to know more on how “The Law” works.
I also was very happy that my brother and his fiancé attended our panel. As children we played with Star Wars toys for hours, having dog-fights with X-Wings and Tie Fighters and shootouts with action figures. It was awesome he could join us for our Comic Con debut.
A very dear friend from my volunteer work and her husband also joined us for SDCC. Both are Naval Officers and I was glad we were able to get active duty military personnel to the show as our guests.
Just a Few Panels
I was able to see multiple panels, including one on Marvel’s Secret Wars with Tom Brevoort, Harbro’s Star Wars team, and an interview with Jack Kirby that originally aired on public access TV in the early 1980s that had not been seen in over 30 years. There were tons of just excellent panels.
The Marvel Secret Wars panel with Charles Soule speaking.
I was very impressed with Comics for Impact: Healing Wounds of War. The panelists discussed how comics can be used to help our vets with PTSD using different authoring tools. The two of the three methodologies empowered vets to tell their stories of to others by creating a comic. The third focused on a story of a Sargent tell his troops the story of the Odyssey and returning from war.
The Exhibit Hall
Who really needs space for a dining room table?
“Mind-blowing” is a accurate description of the Exhibit Hall. Booths ranged from vintage comics to TV shows, movies, and stunning models. I was especially impressed with Sideshow Collectibles. I have no idea where I would put a 1/6 scale Millennium Falcon cockpit or 5-foot Tie Fighter, but strangely want both.
Tom Hiddleston also walked by me, so that was pretty cool.
Rare moment of right place at the right time.
It was a Monster Party
I was very happy to catch up with my old friend Matt Weinhold and the team from Monster Party. I first met Matt back in the mid-1990s when my family owned Rooster T. Feathers Comedy Club. It was a joy to met his wife in person and go to dinner with Larry, Shawn, and James from Monster Party. It was very cool to join them for their SDCC podcast and I look forward to hearing it.
James Gonis, Shawn Sheridan, Larry Strothe, and Matt Weinhold doing their magic.
2016?
We had an absolutely amazing time at San Diego Comic Con. A huge thank you to Mike Towrey from San Diego Comic Fest for all of his help in getting us a panel at SDCC. I hope we can present again next year, perhaps to honor the legal issues in Star Trek for the 50th Anniversary.
