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Mike Bolsinger’s lawsuit against the Astros is already moving along

The Astros already have more wins than any other team in 2020.

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MLB: AUG 04 Blue Jays at Astros Photo by Juan DeLeon/Icon Sportswire via Getty Images

The Houston Astros might not be playing baseball, but the various lawsuits filed against them for the 2017 cheating scandal are making surprisingly heady progress. The team made headlines for challenging the impartiality of 90-year-old judge Malcolm Mackey, who was assigned to the case.

Before Mike Bolsinger could ask a court to decide whether the Houston Astros played fair with him, the Astros claimed the judge could not play fair with them.

Bolsinger, a former Dodgers and Toronto Blue Jays pitcher, sued the Astros and owner Jim Crane in Los Angeles County Superior Court last month, arguing the Astros’ sign-stealing scheme resulted in a pitching performance so poor that he has been unable to find another job.

The Astros have not yet filed a response to Bolsinger’s claim. But Harry Mittleman, one of the defense attorneys, this week submitted a declaration saying the Astros did not believe Crane and the Astros could have a “fair and impartial trial” before Malcolm Mackey, the judge assigned to hear the case.

The Astros were widely criticized for the move in the press. But like all things legal, it’s not quite that simple. Let me explain.

In most jurisdictions across the United States, once you file a lawsuit, your case is assigned to a judge depending on where and how you filed your case. For example, a lawsuit for money damages filed in federal court will usually be assigned to a federal district court judge in the judicial district where you filed your suit. In state courts, your case will be assigned to a judge in the division that hears that type of case.

So what happens if you get a judge you don’t like? Well, in federal court, most of the time not much. Very few federal courts allow you to change the judge once they’ve been assigned to your case. Many states, however, allow one or both litigants to exercise some version of what is known as a “substitution of judge as a matter of right.” In other words, in one or both litigants is allowed to request a change of judge for no reason whatsoever - provided the judge you have hasn’t ruled on anything substantive yet. These rules vary across jurisdictions.

California doesn’t have a rule allowing for substitution of judge as of right. What the Golden State does have, however, is Rule of Civil Procedure 170.6, which says this:

A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge, court commissioner, or referee before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee.

In other words, if a party or attorney says in an affidavit or other sworn statement that they don’t believe that they can get a fair hearing from the assigned judge, the case is automatically transferred to a different judge. There are, of course exceptions that aren’t relevant here, but effectively it seems that the Astros are using Rule 170.6 to obtain a substitution of judge as of right.

Bolsinger’s lawyer, of course, needled the team for the motion.

“I have no clue why the Astros feel that way about the particular judge, but the irony is not lost on me that the team who broke every rule and cheated to win a World Series is now claiming a randomly assigned judge would not be fair to them,” Ben Meiselas, Bolsinger’s attorney at Geragos & Geragos, emailed, referring to the Astros claiming the 2017 championship after defeating the Los Angeles Dodgers in the World Series.

That said, Meiselas knows as well as anyone that motions to change judges are not unusual, and in this instance may have had nothing whatsoever to do with the team. There are attorneys who feel, correctly or incorrectly, that they and their clients cannot receive fair hearings from certain judges. This may have had as much to do with the attorneys as with the team, or nothing to do with the Astros whatsoever. Still, the move isn’t exactly routine, and a motion to transfer venue could conceivably have accomplished the same goal.

At the same time, it’s difficult to say that the team’s motion was purely a dilatory tactic when they filed a responsive pleading five days later. That pleading was a motion to dismiss the case for what is known as improper venue. As I suggested back in February,

This is very procedural, and as such a lot less tantalizing than the substantive aspects of Bolsinger’s lawsuit. On the merits, yes, I think Bolsinger’s case would have a chance, but I genuinely don’t think it gets that far because I don’t think any state court in California has jurisdiction to hear it. Bolsinger filed this case in California because it’s the friendliest venue substantively, but procedurally, establishing jurisdiction will be, I think, extraordinarily difficult. This case would be far more likely to succeed with a plaintiff on the Angels or Dodgers, with Bolsinger however, I don’t think it ever gets to the merits because of the jurisdictional problems.

As it turns out, the Astros agree with me, calling Bolsinger “a Texas resident who claims to have suffered injury in Texas because of allegedly improper conduct that occurred in Texas at the hand of fellow Texans.” And, legally, they’re probably right. This is a case that should be heard in Texas, and it will be fascinating to see if the new judge, David Cowan, agrees.

Meanwhile, the Astros did obtain a needed victory, with a judge somewhat surprisingly dismissing with prejudice the lawsuit brought by daily fantasy players. To his credit, the always-excellent Craig Calcaterra called this one:

The daily fantasy players’ claim was, basically, that they were gambling on contests that were, unbeknownst to them, rigged. As I wrote several weeks back, there is considerable case law which holds that sports fans and gamblers have extraordinarily limited legal interests with respect to sporting events. If you buy a ticket you are entitled to see a game, basically, but that’s about it. You do not have a legal interest in its competitive integrity. If someone in the game cheats or breaks the rules, they have not done damage to you that is legally cognizable. People have tried these suits before — most notably and recently in the wake of the various scandals surrounding the New England Patriots — and they’re always dismissed. So, no, no surprise.

That said, I think this dismissal gets overturned on appeal for a couple of reasons. First, I think that this dismissal - with prejudice, without any opportunity for the plaintiffs to amend their complaint - is an abuse of the court’s discretion. In order for a dismissal with prejudice to stand, there must be a showing that no set of facts exists that would allow the plaintiff to recover, and I don’t see that satisfied here. Second, there is a difference - and, I believe, a legally cognizable one - between the Patriots’ attempts to gain an unfair advantage (deflating footballs, spying on practices), and the Astros actually having advance knowledge of what pitch was coming. In other words, there is, I think a degree of but-for legal causation that can be shown in the Astros’ case that wasn’t present for the Patriots.

In any event, with most courts shut down given the COVID-19 outbreak except for emergencies, we’re not likely to receive more updates on the Astros’ court battles for some time.