Guest Post: ACC vs. FSU - Florida State's Motion to Dismiss, Part 2

Pictured: Florida State’s Chief Counsel, seen here analyzing ACC court filings

Ed Note: Our continuing thanks to TwistNHook for lending us his legal expertise!

Part 1: ACC Stability
Part 2: FSU vs. ACC Part 1
Part 3: FSU vs. ACC Part 2
Part 4: The ACC Strikes Back Part 1
Part 5: The ACC Strikes Back Part 2
Part 6: Florida State's Amended Complaint
Part 7: The ACC's Motion to Dismiss, Part 1
Part 8: The ACC’s Motion to Dismiss, Part 2
Part 9: Florida State’s Motion to Dismiss, Part 1

In the last part of this series, we discussed the first portion of the Motion To Dismiss/Stay filed in NC Court by FSU.  We were discussing the overall view of the motion along with the first few causes of action.  Here we discuss the last cause of action and the Motion To Stay portion of the Motion.

Extra-Contractual Obligations

This is a catch all section where FSU throws a few of the ACC counts into a pot and requests the Court dismiss all of them.  This would be part of what a CA attorney would call a demurrer analysis.  In the ACC Motion, they go through the counts one by one and do an exhaustive deep dive into each one.  Here, FSU kind of lumps it together.  If this was brought to me, I would have it re-written into a deep dive with each one individually.  A little surprised that the highly experienced FSU lawyers would do it this way.

The alleged extra contractual obligations are, a duty to keep the agreements with ESPN confidential, a fiduciary duty to refrain from acting against the best interests of the ACC, and a  duty of good faith and fair dealing.  

The motion doesn’t delve really into any of these specifically.  They argue that basically there isn’t anything in any of the contracts signed that require this.  Thus, the phrase “extra-contractual obligations.”  The ACC had argued that all members of the ACC are in a “common and joint venture” and this means they have to act certain ways.  

This is similar to the “premature” discussion where FSU argued the ACC breached certain extra-contractual obligations in their FL lawsuit.  The ACC argued in their motion to dismiss that these extra-contractual obligations do not exist and the ACC did not breach them.  So, both sides are arguing the same things.  

So, here the Motion summarily argues that since the contracts etc. do not require these items, Counts 4-6 must be dismissed.  This is something of a demurrer analysis but only for Counts 4-6.  

The motion touches on Count 1 to say it is premature, but has no other analysis regarding why Count 1 (i.e. Declaratory Judgment) fails based on the face of its discussion.  There is no other discussion regarding Count 2 (estoppel) and Count 3 (breach of contract).  Any good motion to dismiss would include all of the Counts.  Even if the Court finds that the Counts for 1 and 4-6 are to be dismissed, 2 and 3 would still remain.  

Motion To Stay

There is an analysis of the stay law in both motions.  Interestingly, the FL stay law is easier (and significantly better for the ACC).  The FL stay law just says if it is the same parties and same law, whoever takes the case first (here, NC) gets to keep the case.  

Per this motion, the NC stay law has a 10 factor analysis.  Much more complicated.  These factors are:

1. Nature of the case

2. Convenience of the witnesses

3. Availability of compulsory process to produce witnesses

4. Relative ease of access to sources of proof

5. Applicable law

6. Burden of litigating matters not of local concern

7. Desirability of litigating matters of local concern in local courts

8. Convenience and access to another forum

9. Choice of forum by plaintiff

10. All other practical considerations

This seems to basically be “Everything.”  The motion cites law that basically says all factors do not need to be considered, but the Court should focus on whether a substantial injustice would result if the stay was denied and if the alternative forum is reasonable and fair.  

It is important to remember that a lot of other items are occurring in NC as compared to FL.  For example, there is a motion to seal already pending.  ESPN is getting involved.  None of this is happening in the FL case.  So, there is already a lot of activity taking place that would be applicable to these factors above.  

The motion tries to argue that the ACC did not really file this lawsuit to seek genuine relief, but instead to just beat FSU to the punch.  While the ACC clearly did file to beat FSU to the punch, I think they also are seeking genuine relief.  They do not want the Clemsons and UNCs of the world to follow in the FSUs footsteps.  They want a clear result that basically says “YOU SHALL NOT PASS!”  So, separately from any procedural fencing (as the motion puts it), there is a validity to the complaint.  This is especially true given that it is the exact opposite to FSU’s lawsuit.  If FSU’s complaint is valid, the ACC’s complaint would be too.  

The motion has some case law that states if you have constructive notice of a lawsuit and file early, you may not get your filed first priority.  The motion notes that the ACC had “actual notice.”  This means that the ACC knew FSU was about to file, which undercuts the “premature” argument FSU made before.  These arguments are undercutting each other.  

The motion also argues that since they never followed the 2/3rds requirement for material litigation, the first filing should not even count.  There may be some validity to this as described before.  

The motion uses this law to try to get around the first filing priority.  One thing to note here is that in December, this lawsuit was transferred to the NC Business Court.  That is a specialized court for complicated business litigation (which this clearly is).  The ACC asked for this and the Presiding Judge approved it.  It strikes me that if the Court system is making decisions on whether to assign it to this Business Court, they are not inclined to just dismiss it outright.  Why agree with the ACC about the Business Court issue if you think that it was not validly filed etc?  I guess we will see on that.

Next, the motion argues that there should be a stay because of the sovereign immunity claims discussed before.  You can guess my thoughts on that.

Next, the motion argues that some of the allegations occurred in FL, so it should be in FL.  Some occurred in FL, some occurred in NC.  I personally believe that 50+% occurred in NC, so that would lean towards keeping it in NC.  That’s just my opinion.  

Next, the motion argues that FL contract law is similar to NC contract law.  So, might as well do this in FL.  That also goes both ways, because if the law is similar in FL and NC, you can do it in NC as much as FL.  The motion argues that the FL action is broader than the NC action and so the broader action should prevail.  There is nothing specifically cited here legally showing why that matters, though.  I also am not sure that the FL action is broader than the NC action given that the Amended NC action has so many new counts.  

One thing that I found interesting due to my decades long love of professional wrestling is that this brief cites to Jim Crockett Promotions, Inc. v Action Media Group.  Jim Crockett Promotions was the major south east wrestling territory fighting against Vince McMahon and Hulk Hogan’s WWF promotion in the North east in the 80s.  JCP had Ric Flair and Sting and Lex Lugar in the 80s, but was not able to compete against Hulk Hogan and Wrestlemania etc.  They eventually collapsed and sold to Ted Turner (who turned it into WCW that later became famous with the nWo, Goldberg, etc).  This really isn’t super relevant to this lawsuit, but I found it interesting.  Not sure what the issue between NC and FL law was in that JCP case.  

Conclusion

When you read another party’s legal brief, you want to come away with the thought that your legal strategy is terrible.  If you come away with the thought that the legal brief is incredibly stupid, then that usually means it is not very strong.  The strongest argument here relates to the 2/3rds vote, which strikes me as valid.

Separately, there are multiple arguments here that are awe-inspiringly stupid.  Just not based in reality or actively undercutting other FSU arguments.  

We will see what happens on 3.22.24 at 9:30 AM EST.  If FSU wins this motion, they got a chance in FL to make some hay.  Of course, the ACC will immediately appeal and that will delay everything forever.  If FSU loses, then basically they will get squeezed into North Carolina Business Court, which is really bad for them.  If FSU loses, I am guessing that the Judge in FL will approve a dismissal and/or stay on the FSU lawsuit there.  That would be really bad for FSU.  Given that they want to move this forward quickly, an appeal there does not benefit them.  

Thanks for reading!