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| Supplemental Briefs to Judge Beaty by Defendants; Up on Justia Now | |
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| Topic Started: Jun 25 2009, 01:45 PM (954 Views) | |
| Tidbits | Jun 25 2009, 10:52 PM Post #16 |
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Supervisor liability is an issue on which the new decision may help defendants. |
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| Tidbits | Jun 25 2009, 10:58 PM Post #17 |
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Did I understate? I sometimes do. I could say that the lawyers don't want dismissals. But, at most, I expect an order to replead or a dismissal subject to repleading. A pure dismissal without allowing repleading is bait for reversal, and probably just plain improper. So the lawyers win, at this stage. Fees fees fees fees.  |
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| Tidbits | Jun 27 2009, 09:06 PM Post #18 |
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I scanned several of the defendant briefs. I don't plan to do more for now. Some reactions: 1. Conclusions unsupported by facts. Yep. 2. Recitations of the elements. Yep. 3. Failure to appreciate Rule 8 and Twombly and Iqbal. Yep The briefs suffer from all of this, repeatedly. Much, perhaps more than half, is boilerplate. It can be used in every case. It is almost filler. Much that purports to apply to this case is generic. Filler. A bit is actually about this case. For those who wish, print a brief and: 1. Strike out the T and I boilerplate. The "this is what T says, this is what I says..." 2. Delete mere recitations of the elements of their claims that the complaint is inadequate. The "they only recite the elements..." stuff. 3. What is left? Not much. 4. Part of it is facially inadequate. "They allege fact A, but if the fact is B, it would not be a claim." Yet fact A is enough. The facts plead must be accepted as true. 5. Some might be left. 6. Read Iqbal. Read the complaints in this case. There is no comparison. But, note all the words that signified nothing. If they have a good point, why don't they make it and stop? A good point can get lost in the mess. One answer is conflict of interest. Some lawyers represent more than one defendant. What if one has a good point and the others don't? Should they get the one off and stop? Is that ethically required? Are they neglecting one by making worthless claims for others? Is that a problem? Will that be a problem for lawyers in other cases? It this an ethical quagmire? Enjoy the humor. One claimed that Iqbal eliminated any questions about what Twombley means. ROFL. T and I are today the source of massive confusion, disagreement, and angst. So, enjoy the humor. But, judges, who must deal with the problem may not see the humor. It might just seem like stupidity or bluster, or maybe stupid bluster. One thing I didn't see, and suspect was not there, was a fair discussion of Iqbal and its application to this case. I didn't notice any quotations or references to the language and concepts in Iqbal that are against the defendant's view. (Did I miss something? Maybe.) The briefs reek of spin. A good judge wants to see the issues fairly. The briefs should say, "here is our weakest link, but we win anyway because..." instead these say, "we can spin Iqbal so it seems like we should win." Big deal. The plaintiffs can spin it so it looks like they can win. If everything is accepted in the best way for the plaintiffs, do some claims get dismissed? That is the question for the court. Did they briefs answer that? I saw them avoid that question. If I am the judge, the briefs are largely a nuisance, not a help. In short, there might be a needle in the haystack, but it is hidden under a pile of moldy hay. But, there is a bright side. The lawyers get to bill their clients for drafting boilerplate documents that they can use over and over and over, even if they don't work. And they can and will bill over and over and over. PS. I am not sure that all the lawyers actually read Iqbal. |
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| jmoo | Jul 13 2009, 09:02 PM Post #19 |
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Plaintiff responses due tomorrow? "ORDER signed by CHIEF JUDGE JAMES A. BEATY, JR on 06/04/09, that within 20 days of the date of this Order, any of the previously-designated Defendant groups may file a Supplemental Brief, not to exceed 20 pages, addressing the impact of the Supreme Court's decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), on the resolution of the pending Motions to Dismiss in this case. FURTHER that within 20 days after such Supplemental Briefs are filed, Plaintiffs may file a Response Brief, not to exceed 20 pages, responding to any issues raised in the Supplemental Briefs. (Law, Trina) |
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| Baldo | Jul 14 2009, 12:20 PM Post #20 |
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 As just a amateur that point strikes me. Of course what the defendants's attorneys are actually doing is omitting the crucial parts of Iqbal. It seems to me the main point of the Iqbal Scotus decision was to demand you just can't state a claim and expect to move into a discovery phase. Cause and Effect must be present. Again SCOTUS did not dismiss Iqbal's claims, it left standing those against lower supervisory and those with direct conduct, it didn't even dismiss the claims against the US AG nor the FBI Director. It sent those back to the appeals court to see if they should allow a refiling to include more direct cause and effect. It seems to me Judge Beaty is just being prudent. Jamie should have known Beaty would demand briefs. Surely she must have, but like I said I am not sure it was the right strategy to file that motion now. IMHO It's an early Hail Mary. The three lawsuits are full of cause and effect. In fact we have the works of the NC State Bar, the NC SP's, and the Court of Judge Smith. I doubt there is a better documented case to pass the Iqbal Bar, if not, no case ever will and might as well ban lawsuits. The words of Duke Law Professor Robert P. Mosteller are aptly applied to this issue. The Duke lacrosse case was a disaster—a caricature. The case, which involved false rape charges against three Duke University lacrosse players, began with gang rape allegations by an exotic dancer at a team party in March 2006 and ended with the declaration of their innocence in April 2007 and the disbarment of Durham County District Attorney Mike Nifong in June of that year. Often a full examination of the facts of a notorious case reveals that events were ambiguous and the reality is not as bad as early reports suggested. This case does not fit that pattern; it gets worse on inspection. At the end of a five-day disciplinary hearing, Lane Williamson, chair of the North Carolina State Bar’s hearing panel, called the case a “fiasco” and reiterated the term, giving assurance that it was “not too strong a word.” http://lsr.nellco.org/cgi/viewcontent.cgi?article=1106&context=duke_fs I am looking forward to what real attorneys on the Plaintiff side think. Edited by Baldo, Jul 14 2009, 12:21 PM.
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8:09 PM Nov 8
