JUSTICE FOR ANAS The slogan rallying $20,000 in crowdfunding for Tardigrades videogame developer Anas Abdin’s appeal in his copyright lawsuit against CBS and Netflix over Star Trek: Discovery. Original art/CBS and Anas Abdin

NOVEMBER 6, 2019 | 6 MIN READ

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.

Missed Deadline

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.

DOCKET View the full docket of the case as of November 5, 2019.
Note: Outbound links from the PDF require a paid subscription to the court’s electronic records system.

Abdin filed his Notice of Appeal on October 1.

Pre-Argument Statement

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.


« The case is deemed in default [and] will be dismissed effective November 7, 2019, if the form[s are] not filed by that date. » — Clerk Catherine Wolfe, Second Circuit Court of Appeals

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)

No New Evidence

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.

Missing Transcripts

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.

Habitually Deficient

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)

Avoiding Dismissal

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)

Appeals Schedule

Under Second Circuit rules, the court considers appeals to dismissal motions on an expedited calendar. The clerk notifies the parties when an appeal is placed on the expedited calendar and sets the briefing schedule:4)

1. Abdin should file a Pre-Argument Statement by October 15 specifying the basis for his appeal.
2. Abdin’s appeal brief is due 35 days from the date of the clerk’s notification.
3. CBS will have 35 days from Abdin’s filing to file its appeal brief.
4. Abdin will then have 14 days from CBS’ filing to file a reply.

Abdin's Lawyer Gets Money

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.

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1)
[PDF] Abdin v. CBS Broadcasting et al., "Opinion and Order," Judge Lorna G. Schofield, p. 12, 9/20/19.
2)
Local Rules 25.1 and 25.2, Second Circuit Court of Appeals, 2/1/14.
3)
[PDF] Docket 14-15, “Order dismissing appeal by 11/07/2019, unless Appellant Anas Osama Ibrahim Abdin, submits Forms C and D,” Abdin v. CBS Broadcasting et al., 10/24/19.
4)
"Expedited Appeals Calendar," Case Filing, U.S. Court of Appeals for the Second Circuit, 12/5/13.
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