Chris, thanks for getting that transcript.
For a procedural hearing, it's a little unusual, and it might come across as a hearing on the merits, so it's worth adding some context to that.
Some folks file things in lawsuits simply because they can. The point of the discussion is that the judge would prefer not to wade through dueling briefs on summary judgment if it looks like there is going to turn out to be a genuine issue of disputed material fact. So while it might look like the judge is leaning one way or the other during the discussion, she is trying to get a read on the extent to which the material facts may or may not be actually disputed, and what those facts might be, in order to save the parties and the court time that might otherwise be spent productively.
The case was scheduled to be trial-ready in June anyway, but the pre-trial conference is now pushed back to 30 days after a denial of summary judgment (if it is denied).
So bear in mind that the purpose of the discussion is not that the court is trying to decide the case, but is trying to get a feel for whether this case can be properly disposed on summary judgment. ACPA cases turn on intent, and a finding on intent can be a function of credibility. Credibility is not a factual issue, but if a case boils down to credibility of a witness or party, then a court will typically say that a trial with live testimony is needed. That's the significance of this part here:
Although it seems the judge may have some credibility questions:
...and....
...eventually concluding....
So, when you have a summary judgment motion which hinges on intent, and in which intent depends on credibility, you can get a lot of first year law students to join in a chorus singing along with the Supremes...
“On summary judgment, we must draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S., at 255.”
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991)
...so the baseline is that, as the non-moving party here, Blair is entitled to an inference of credibility, provided it is a justifiable inference. I would suggest the "Seinfeld Test" would be one way to approach whether an inference of credibility is justifiable:
Is George entitled to a justifiable inference of credibility in his denial of knowingly violating a workplace rule? The laugh track suggests otherwise.
There can also be fact questions that can be dealt with by evidence, such as whether "Lambo" is, or is not, confusingly similar to "Lamborghini". As I had mentioned before, what anyone's opinion might be - including the judge's - is not a substitute for evidence. That is why, on that point, the judge mentions that while she has heard "Lambo" as a reference to "Lamborghini", she is still going to need something in front of her to establish confusing similarity as a fact:
Again, the point is not to resolve the issue, but to get a sense of whether it is going to be adequately addressed in a motion for summary judgment.