Clerk moves to abate the docket as a continuing nuisance and stay all filings until the draft ends

The Clerk of the Court, appointed Wednesday night on his own motion, filed his first paper at 3:32 a.m. Thursday. It asks the Court to stop receiving papers.

Aaron Kelly, signing as “Clerk of Court, Lower Proprietor,” styles the filing a “Clerk’s Motion to Abate a Continuing Nuisance and Stay Further Filings.” It asks for a stay of every further filing “concerning the date or time of the September 8 Draft” until the Draft concludes. The motion is dated September 2, a day on which, by the Clerk’s own count, the dispute produced “two amicus briefs, a response, a motion to intervene dated three days in the future, a consolidated opposition, a supplemental brief withdrawing the requested relief while preserving the objection, and a Clerk.”

The docket as a stream

The motion’s theory is the law of riparian nuisance. It cites Harrisonville v. W.S. Dickey Clay Manufacturing Co., 289 U.S. 334 (1933), for the proposition that a continuous stream pollution may be enjoined, and Arizona Copper Co. v. Gillespie, 230 U.S. 46 (1913), for relief to a lower proprietor injured by an upstream mine. “League members may use the docket,” the Clerk writes. “They may not render it unfit for ordinary League business.” He identifies the public injury as apparent and his own as special: “Everyone else can stop reading.”

A second theory borrows from trademark litigation. The Clerk cites an ex parte application by Chanel against counterfeit websites for the harm of occupying scarce search space, and applies it to the League. “The relevant search term here is ‘Draft.’” A member looking for the Draft time, he says, “now encounters Rule 23, Howey, Ethereum Classic, the Commodity Exchange Act, an oracle, a hard fork, multiple bedtimes, a third wedding anniversary, and an appellate court established Wednesday.” The most direct source, the Sleeper app’s settings page, “appears in Patel’s table of authorities as ‘unvisited.’”

Indivisible injury

The Clerk declines to say which filing caused the harm. Under Michie v. Great Lakes Steel Division, 495 F.2d 213 (6th Cir. 1974), independent polluters may combine to cause a single indivisible injury, and the motion assigns each party a discharge: “Goldich supplied appellate procedure. Patel supplied blockchain governance. Florio supplied commodities regulation. The Commissioner supplied the initial discharge.” The Court “need not determine whether the decisive discharge was the appeal, the oracle, the purported class settlement, the motion dated three days in the future, or the supplemental brief asking the Court to adjourn before anyone thought of something else to file.”

“Apportionment would require the Clerk to read the record again,” the motion states. “The Clerk declines.”

The remedy

The stay requested is short, and the Clerk grounds it in Landis v. North American Co., 299 U.S. 248 (1936), on a court’s inherent power to manage its docket. No party loses a claim: “Every objection has already been preserved, several more than once and one in perpetuity.” Damages are rejected because valuing the lost attention “would require discovery, expert testimony, and another round of briefing.” The hardship is compared favorably to Harrisonville, where abatement would have required a city to replace a sewage system. “Here, lawyers would refrain from filing until Tuesday. The group chat remains available.”

The Clerk acknowledges that the motion “adds another paper to the alleged nuisance. The objection is preserved. No response is requested.”

Relief requested

A stay of further filings on the Draft time; an order deeming preserved “every objection, reservation, alternative position, and expression of displeasure already contained in the record”; emergency filings permitted only on “a material change in circumstances, including an actual change to the Draft time”; and referral of any other paper “to the Office of the Former Clerk [trash bin].” The motion adds that “a new theory concerning the existing Draft time is not a changed circumstance,” and that nothing in the order “would restrict ordinary complaining in the group chat.”

The conclusion is two sentences. “The Draft is at 10:00 p.m. The docket should close before then.”

The Court’s note

The motion is the first filing in this case to request less. The Court takes it under advisement, and observes that the Clerk’s proposed exception for a material change in circumstances was tested within three hours of filing. Asked in the League chat when members would receive a draft order, the Commissioner answered at 6:39 a.m.: “30 minutes before the draft, randomized.” Two minutes later he added: “Alternatively I could generate random draft orders until I get one that I like.” Whether that is a changed circumstance, or a new theory concerning the existing one, is a question the Clerk’s motion does not reach.