Tardigrades Case in Danger of Dismissal by Appeals Court

With Anas Abdin’s lawyers’ pattern of defective filings, the court threatens to dismiss case November 7

Following public fanfare that netted him more than $20,000 on GoFundMe to pursue an appeal in his copyright case against CBS and Netflix over Star Trek: Discovery, Kuwaiti videogame developer Anas Abdin’s lawyers have already bungled the case.

Meanwhile, it appears all the GoFundMe money is going directly to one of Abdin’s attorneys.

In an October 24 order, the federal Second Circuit Court of Appeals in New York declared Abdin’s case was in default by having missed an October 15 deadline to file two forms required for the case to move forward.

Under its rules, the circuit court will dismiss the case if the appellant, Abdin, fails to file a pre-argument statement by November 7 describing the reasons for his appeal.

The case was originally dismissed September 20 by district court Judge Lorna G. Schofield for failure to show any infringement whatsoever, even assuming all the facts asserted by Abdin’s legal complaint were true.

Abdin filed his Notice of Appeal on October 1.

Abdin’s lawyer, John Johnson, should have filed Form C, a Pre-Argument Statement, including “a brief, but not perfunctory, description” of the case and a list of the “issues proposed to be raised on appeal,” as well as the legal basis for appealing each issue.

That may present a challenge for Johnson and co-counsel Allan Chan, whose failure to state a valid legal claim was the reason the lower court judge dismissed the case before trial. That kind of dismissal earns Abdin the right to ask the appellate court to review the case from scratch rather than having to point out specific legal errors by Schofield.

Even so, the appeal will have to prove how Schofield misapplied the standard used by the Second Circuit to determine whether Discovery‘s creators substantially infringed upon the copyright of Abdin’s videogame.

SUPERFICIAL SIMILARITIES? A judge agreed with CBS’ grounds for dismissing the copyright lawsuit against Star Trek: Discovery finding the similarities between it and the Tardigrades videogame too generic to support a claim of infringement. Image/Anas Abdin

Under that standard, Schofield set aside what she deemed unprotectable elements of the Tardigrades game and then compared what was left over with Discovery.

Unfortunately, even giving Abdin the benefit of the doubt, nothing was left over; Abdin’s “alleged similarities between … characters in the two works also fails to support a claim, as they are mostly generalized non-protectable descriptions.”¹⁾

Despite promises to Abdin’s supporters that their GoFundMe donations will pay for additional investigation and legal consultation to support the case, no additional evidence or testimony can be considered by the appeals court. If the court upholds the lower court’s dismissal it will be with prejudice — Abdin will be unable to re-file despite any additional evidence.

The second missed filing by Abdin’s attorneys was Form D, Civil Appeal Transcript Information. The form is used to list and provide all the relevant transcripts from the lower court case. It also was required by October 15 for the appeal to proceed.

That should have been easy for Johnson or Chan to provide since there were few transcripts so early in the case before it was dismissed. Johnson regularly filed late or deficient pleadings in the lower court; that habit has continued so far in the appeal.

Continuing his habit of deficient filings in this case, Johnson failed to provide PDFs that were text-searchable, as required by the court’s rules.²⁾

The court notified Abdin he had until November 7 to file the two forms. “The case is deemed in default,” the clerk of court, Catherine O’Hagan Wolfe, wrote on behalf of the court. “It is hereby ordered that the appeal will be dismissed effective November 07, 2019, if the form[s are] not filed by that date.”³⁾

Meanwhile, in a change from the GoFundMe’s original pitch, the page now declares the fundraiser is “on behalf of John Johnson,” one of Abdin’s lawyers.

This may explain why Abdin said he needed $5,000 within three days of posting the GoFundMe appeal; the money may have been earmarked as a retainer for Johnson to continue representing Abdin after failing to make his case in the lower court.

Because Abdin registered his copyright for Tardigrades so late, he conceded the ability to seek attorneys’ fees as damages from CBS and Netflix if he had won the case. Without the GoFundMe money, Johnson and Chan would likely never be paid.