A federal judge today refused to let Shiva Ayyadurai fire his lawyers from his case against the Secretary of State's office and said his attempt to do so and hire a new lawyer the day before he was supposed to file an amended complaint to bring Twitter into the case is the latest in a pattern of failing to obey court rules and the judge has had quite enough.
US District Judge Mark Wolf today ordered Ayyadurai to file a private explanation why he felt the need to fire the law firm initially recommended by Wolf and a public explanation of "why the court should not institute civil and/or criminal contempt proceedings against him" for not complying with an earlier ruling to file his amended complaint by yesterday. Wolf added that among the potential sanctions he could levy is to simply dismiss the suit.
Ayyadurai's current iteration of his argument is that Bill Galvin and his minions conspired with Twitter and used software imported from Great Britain to deprive him of his Constitutionally protected voice on Twitter and so cost him election to the US Senate last year - two years after he failed to convince voters he was the "Real Indian" who deserved to take over from Elizabeth Warren.
Twitter is a private company and so not normally subject to the First Amendment, but as the case has gone on, Wolf has said repeatedly that Ayyadurai, who has mostly conducted the case pro se, has raised significant questions about how a private company such as Twitter can be deemed a "state actor" subject to the First Amendment. Wolf has said a key question for him is whether a complaint the Secretary of State's office filed with Twitter last fall about an Ayyadurai tweet declaring the state had destroyed one million ballots for the September Republican primary, which Ayyadurai lost to somebody whose name few people now remember, enough of a nexus to bend Twitter, either willingly or not, to the will of Galvin's might as a government official.
Twitter ignored the complaint that the tweet was completely wrong, but then permanently yanked Ayyadurai's account in February for what it said were repeated election falsehoods; Ayyadurai says it did so at Galvin's beckoning, not because of its own internal algorithms established after Jan. 6 to try to deplatform election deniers and violence promoters.
Wolf was so impressed with the questions Ayyadurai was raising that he offered to dip into court funds to hire an experienced downtown lawyer, Howard Cooper of Todd & Weld, to represent him, after Ayyadurai claimed Twitter's ban meant he had lost his main fundraising effort - even though he had fired his initial lawyer months before the ban went into effect. Ayyadurai accepted. Then Ayyadurai said he would be bringing on a second lawyer - the guy who represented Hulk Hogan in his suit against Gawker, and Ayyadurai himself in one of his suits over his claims to have invented e-mail - and the judge rescinded his payment offer.
But at the same time, Wolf has repeatedly cautioned Ayyadurai that even people suing by themselves need to comply with court rules - including filing documents by the deadlines set by judges. Yesterday was the date Wolf had set for Ayyadurai to file his amended lawsuit naming Twitter as a defendant along with Galvin, his top elections aide and a national association of state elections officials.
On Wednesday, however, Cooper and two other Todd & Weld lawyers who had signed onto the case asked for permission to be dropped from the case, saying Ayyadurai had fired them the day before.
Todd & Weld understands and believes that Dr. Shiva will be proceeding on a pro se basis in this matter although he may engage counsel at some point in the future.
In fact, not long after they filed that request, lawyers at another downtown law firm, Cornell Dolan, P.C., asked for permission to enter the case as Ayyadurai's new lawyers - and asked that the judge delay yesterday's deadline by six weeks to let them review the case and file a good amended complaint. His proposed new filing date would have been one day after Wolf had scheduled hearings on the proposed new complaint. The Hulk Hogan lawyer, meanwhile, has never filed the required motion asking permission to formally join the case.
In an order today, Wolf said he's had enough.
Allowing either the Motion to Withdraw or the Motion for Extension of Time would unreasonably delay the resolution of the complex issues presented in this case. This delay would be prejudicial to the defendants sued individually for money damages, who have argued that plaintiff's claims against them individually should be dismissed based on qualified immunity. The Supreme Court has repeatedly stressed that "qualified immunity questions should be resolved at the earliest possible stage of a litigation." Anderson v. Creighton, 483 U.S. 635, 646, n.6 (1987). At the May 20, 2021 Hearing, the court stated that "all of the individual defendants in my current tentative conception and Twitter have qualified immunity that protects them from claims . . . against the individuals personally." Granting the six-week extension plaintiff seeks would, therefore, prejudice the individual defendants by subjecting them to further uncertainty and anxiety, among other things, probably unnecessarily.
He noted all the times he told Ayyadurai during his pro-se days that he had broken one court rule or another and that even though non-lawyers can't be expected to know all the ins and outs of federal court procedures, Ayyadurai had better start reading up on those rules.
Despite these warnings, plaintiff chose to terminate Todd & Weld and retain new counsel the day before he was required to file both his revised Second Amended Complaint and his supporting memorandum of law. Plaintiff was undoubtedly aware that replacing counsel just before these submissions were due would make it impossible for him to comply with the deadline set in the June 16, 2021 Order. Plaintiff has provided "no good reason why [he] could not have worked with [his] original counsel until a replacement was identified" and an orderly transition occurred, instead of retaining Mr. Cornell at the eleventh hour and requesting a six-week extension.
In a possible indication of his judicial anger, Wolf referred to Ayyadurai in his ruling as "Dr. Ayyadurai," rather than the "Dr. Shiva" he had been calling him in hearings at Ayyadurai's request.
In his order, Wolf told Ayyadurai and his old and new lawyers they have until Thursday to provide the explanations he wants of what happened and why Ayyadurai shouldn't be sanctioned - and to file a formal memorandum of opposition to motions by the current defendants to dismiss the case, or an explanation why they can't file one.
Galvin, his elections aide and the national association will then have until July 28 to respond to the issue of possible sanctions against Ayyadurai. And, Wolf concluded:
A hearing on the issues addressed in this Memorandum and Order and a scheduling conference shall be held, by videoconference or in court, on August 4, 2021, at 11:00 am. Dr. Ayyadurai shall attend and be prepared to testify if necessary.