Remember the movie Groundhog Day, when Bill Murray wakes up every morning and has to relive the same day? That’s what it’s like to litigate our case against Taco Bell. For example, Taco Bell has argued in three different motions — in 2007, 2009, and 2011 — that our case is moot. The court rejected the argument each time, but I’m guessing that won’t prevent them from making the same argument again.
The latest example is Taco Bell’s argument that, because our complaint listed only a handful of the barriers at issue, they have no idea — ten years into the litigation — what the case is about.
When they made this precise argument two years ago, we pointed out the many opportunities they had had to learn about the barriers at issue, including:
- The plaintiffs’ 2003 depositions;
- The plaintiffs’ 2003 declarations, filed with the Court;
- The 2005-2006 comprehensive, collaborative, court-sanctioned, survey in which a jointly-selected expert visited all of the stores and reported to both parties the barriers he found. (Spoiler alert: there were a lot of barriers!); and
- The 2010 list of barriers we prepared and filed with the Court.
- Despite this wealth of information, Taco Bell’s 2011 brief claimed dramatically that
Taco Bell was forced to literally guess as to the precise nature of the alleged barriers that plaintiffs intended to challenge.
Literally guess? Literally* guess?
In response, the Court held:
For [Taco Bell] to argue . . . that it was not placed on notice of the claimed violations because not all the barriers were listed in the [complaint], is to elevate form over substance.
Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 852 (N.D. Cal. 2011).
But when we woke up on March 5, 2013, and found Taco Bell’s latest motion in our inboxes — claiming it was not “on notice” concerning the barriers in the case — well:
So we have once again explained all of the opportunities that an observant attorney has had to perceive the barriers at issue, that is, all of the bullet points above along with a second round of plaintiffs’ depositions.
Any guesses when we’ll all stop waking up at 6:00 on February 2 and find redemption in the arms of Andie MacDowell or perhaps behind the wheel with Punxsutawney Phil?
* I’m thinking this calls for a quick rendition of “I do not think that word means what you think it means.” On the other hand, it is possible that Taco Bell’s attorneys had simply never read these documents and were, in fact, literally guessing.