Oracle Racing have had another claim against them by a former crew member dismissed.
The case is the second the commercial arm of America’s Cup defender Oracle Team USA, have won.
All cases were brought in the District Court for the Northern District of California, based in San Francisco. And used the same lawyer, a New Zealander, Patricia Barlow, who claimed at the end of the latest case that she was acting o a pro bono basis for Matthew Mitchell, at least.
The first case was by grinder Joe Spooner (NZL) over an employment-related claim when his contract was terminated by Oracle Racing after they failed to reach agreement on the financial terms of Spooner and his family relocating and staying in the new venue of Bermuda.
Matthew Mitchell (NZL) did have two cases running in the San Francisco Court – being the one against Oracle Team USA claiming they should have dismissed OTUSA crew member Simeon Tienpont (NED) when he had admitted an involvement in some of the activities surrounding boat tampering in four America’s Cup World Series regattas involving one design AC45 wingsailed multihulls. Mitchell was claiming $400,00 in damages for what he claimed was a discriminatory dismissal, and that he was made a fall guy in the affair.
Several other members of OTUSA were named and/or penalised by the International Jury and had subsequent action taken against then by Oracle Racing. However, Tienpont remained with the team and is now believed to be with Softbank Team Japan.
The second case, which is still ongoing is against the International Jury for the 34th America’s Cup, essentially making the same claim as in the first that action should have been taken against Tienpont by the Jury as was done with Mitchell and five others who were named.
That case is largely in its infancy with Mitchell’s lawyer only having been able to serve a summons on two of the five-member jury. No compensation is being sought by Mitchell.
Both cases have been joined and brought under the purview of U.S. District Judge Vincent Chhabria.
‘Barking up the wrong tree?’
As a New Zealander, Matthew Mitchell’s case was reviewed by two Commissioners from Yachting New Zealand, who expressed some reservations as to his complicity and noted that while Tienpont had admitted his involvement, no action had been taken by the Jury. Yachting New Zealand decided to impose no further penalty on Mitchell.
Neither did the International Sailing Federation after a case against another OTUSA sailor, Dirk de Ridder went to the Court for Arbitration for Sport and his five-year suspension from the sport was reduced to just 18 months after “de novo” (new hearing) of the evidence.
On Thursday, local time, in San Francisco the CourthouseNews.com reported that in a ruling from the bench, the a federal judge dismissed an America’s Cup sailor’s lawsuit against Oracle Team USA, saying his claims bordered on frivolous.
“U.S. District Judge Vincent Chhabria on Thursday told Mitchell’s attorney Patricia Barlow, ‘It seems your client is barking up the wrong tree if he has a tree to bark up at all.’
Chhabria asked Barlow: ‘How can you possibly establish that Oracle racing’s conduct caused the jury verdict against your client?’
Barlow said she had recently learned that Oracle Racing suppressed exonerating evidence against Mitchell, which a member of the jury had told her would have been ‘a game changer.’
Tienpont allegedly laughed about weighing down the kingpost, she said, but a crewmate who would have testified to this was cowed by the team’s admonition to keep quiet about the investigation.
Chhabria said he didn’t see how that changed things for Mitchell.
‘If a team is under investigation, there is nothing wrong with telling the team members they can’t talk about it amongst themselves or tell their wives,’ he said. ‘There’s no indication that anybody on the racing team prevented or threatened anybody to keep them from talking to the jury or cooperating with the investigation.’
He added: ‘Frankly, this lawsuit if it’s not frivolous, it’s borderline frivolous.’
It took Chhabria only a few minutes to hand down his ruling. He spent most of the hearing upbraiding Barlow for her conduct in the case, particularly for restating Mitchell’s contract claim verbatim in her amended complaint after Chhabria had ruled that Oracle had not breached its employment contract with Mitchell by failing to fire Tienpont.
‘Part of the problem here is that you don’t seem to understand how things work in federal court,’ Chhabria said, obviously vexed at Barlow’s attempts to build the case through discovery.
‘You can’t take depositions for the purpose of gaining the ability to state a claim. You have to state a claim before you start taking depositions,’ the judge said.
Chhabria continued: ‘It seems like you’re using the court as a vehicle to allow your client to complain about stuff. He thinks he took the fall for something somebody else did, but there’s no cause of action he has against Oracle Racing. The federal court is not a forum for people to complain about how things are going in their lives.’
Barlow apologized to the court, saying she represented Mitchell, a fellow New Zealander, pro bono and that her motive in pursuing the claims was pure.
Chhabria said: ‘You can file a frivolous lawsuit even if you don’t believe it was frivolous. You have an obligation to be objective and not just be a mouthpiece for someone to complain about how things went down.’
Chhabria said he did not see why he shouldn’t sanction Barlow, but he did not.
‘I’m going to let you off with a warning this time,’ he said.
For the full story click here
more info …. sail-world.com
by by Richard Gladwell, Sail-World.com NZL