MTD Converted to MSJ Question
Charmin
legal profession (http://www.likelihoodofconfusion.com/?page_id=798),
but it doesn't address what a plaintiff's best course of action is if
the defendant introduces matters outside the pleadings.
Also, on this newsgroup, I found a post (from Cy Pres, #7): [http://
groups.google.com/group/misc.legal.moderated/browse_frm/thread/
0c1806f793b192af#] ["Why Can Defendants Turn a Motion to Dismiss Into
Summary Judgment"]
"FRCP 12(d) states as much:
"(d) Result of Presenting Matters Outside the Pleadings. If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent
to the motion." Fed. R. Civ. P. 12(d)
This is not an advantage to the plaintiff, except insofar as they are
not forced to go through the formality of refiling their motion as a
Rule 56 motion. In fact, it's a disadvantage if they had not intended
to file a Rule 56 motion, as they are now forced to deal with the
results of a ruling on summary judgment without first having had the
benefits of discovery.
***************************************************************************************************************************
My questions are: 1) How can a plaintiff ask the court to exclude
"matters outside the pleadings?"
2) Do the matters outside the pleadings
have to be of an extraordinary nature (showing
agreement not to sue, proving perjury
by plaintiff--anything that makes the filings of the
pleadings alone completely bogus or
even criminal)?
3) If not (and despite the opinion of the
attorney in the first-cited article), does
this mean a Rule 12(b)(6) motion is
essentially a "McTrial," as in fast-food window-service
disposition of most plaintiffs'
filings?
4) What are reasons judges DO exclude
matters outside the pleadings?
5) In general, if the FRCP clock is
followed with no requests for extension of time, what is the
briefest amount of time a Rule 12(b)(6)
can be transformed into a MSJ, and a disposition
made by the judge? (By this I mean--
Defendant files Rule 12(b)(6) and gets matters outside
the pleadings included; Plaintiff
responds with matters outside the pleadings; Judge rules.)
6) If a plaintiff has not had the time to
gather all the affidavits, documents, or depositions
he needs in order to file a response,
what is the greatest amount of time he can reasonably
expect a judge to give him to go
through speeded-up discovery?
Mike Jacobs
> "(d) Result of Presenting Matters Outside the Pleadings. If, on a
> motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
> presented to and not excluded by the court, the motion must be treated
> as one for summary judgment under Rule 56. All parties must be given a
> reasonable opportunity to present all the material that is pertinent
> to the motion." Fed. R. Civ. P. 12(d)
>
> This is not an advantage to the plaintiff,
Correct, it isn't. But the defense is almost always the only side
who has the choice to file a Rule 12 motion (plaintiff may do so only
if the defendant files an affirmative counterclaim on which defendant
has the burden of proof).
> except insofar as they are
> not forced to go through the formality of refiling their motion as a
> Rule 56 motion.
Plaintiff doesn't "refile" anything. We're talking about a DEFENSE
motion. And, either the defendant OR the plaintiff could be the one
to address some factual "matters outside the pleadings" either in the
motion, or the response memo.
> In fact, it's a disadvantage if they had not intended
> to file a Rule 56 motion,
You're correct, but for a reason you didn't state. Again, plaintiff
is not the one whose intentions in filing motions are at issue here -
DEFENDANT is the one "serving the ball" when filing a motion to
dismiss, and plaintiff must RESPOND.
But yes, it is often a disadvantage to plaintiff to have to deal with
detailed factual issues outside the pleadings at an early stage in the
case. That's why, in his response, a plaintiff may (in addition to
meeting the defense allegations head-on right then and there) either
(A) ask for MORE TIME to conduct discovery, since "All parties must be
given a reasonable opportunity to present all the material that is
pertinent to the motion" OR, if the court DOES want to rule on the
motion at that time,
(B) ask the court to EXCLUDE the extraneous material as not really
pertinent to what needs to be decided at THAT stage, which is simply
the legal sufficiency of the complaint to state a viable cause of
action.
> as they are now forced to deal with the
> results of a ruling on summary judgment without first having had the
> benefits of discovery.
No, they're not "forced" into anything prematurely, unless they are
asleep at the switch. But they have to affirmatively ASK the judge
for more time to conduct discovery before being forced to respond to
SJ. The place to do so is either in their response to the defense
motion, or by filing a motion for extension of time to respond under
Rule 6. Or, the 2 can be combined in one paper.
> My questions are: 1) How can a plaintiff ask the court to exclude
> "matters outside the pleadings?"
[CASE CAPTION]
_PLAINTIFF'S_MEMORANDUM_IN_OPPOSITION_TO_
_DEFENDANT'S_MOTION_TO_DISMISS_
_AND_PLAINTIFF'S_MOTION_TO_EXTEND_TIME_TO_RESPOND_
Plaintiff respectfully requests the Court, pursuant to Rule 12
(d), Fed.R.Civ.P., to exclude, from its consideration while deciding
Defendant's Motion to Dismiss filed on [date], the extraneous matters
outside the pleadings which Defendant attached to its Motion. In the
alternative, Plaintiff requests the Court pursuant to Rule 6, to
EXTEND Plaintiff's time to respond fully to Defendant's motion
including those matters outside the pleadings, and to refrain from
ruling on Defendant's Motion, allowing Plaintiff until [after the
close of discovery] [or: date] to respond further to Defendant's
Motion on the merits, so that Plaintiff be given a reasonable
opportunity to present all the material that is pertinent to the
motion as required by Rule 12(d). The grounds for this request are as
follows:
[COGENTLY STATE YOUR REASONS - FACTUAL, AND LEGAL - SUPPORTING YOUR
REQUEST]
[THEN, JUST IN CASE, MAYBE GO AHEAD AND ADDRESS THE PURELY LEGAL
ISSUES RAISED BY DEFENDANT'S MOTION AS BEST YOU CAN, IGNORING THE
EXTRANEOUS MATERIAL DEFENDANT WANTS TO USE]
That's how.
Of course, if you do so, you run the risk the Judge will look at the
extraneous material anyway, and may just go ahead and rule - so you
still ought to address that material as best you can too, but if you
do TOO good a job of doing that, the Judge may conclude you DON'T
REALLY need more time to prepare to address it, and he could just go
ahead and rule on the _complete_ motion (including the matters outside
the pleadings). So, it's a dilemma, one that calls for some
guesswork, and exercise of sound professional judgment. Which, of
course, as a pro se, is a quantity you have in desperately short
supply because you have no professional training or experience. I'm
trying, here, to at least give you some guidelines by which you can
exercise some common-sense good judgment on your own, assuming you (or
your buddy, I keep forgetting) have that capacity.
> 2) Do the matters outside the pleadings
> have to be of an extraordinary nature (showing
> agreement not to sue, proving perjury
> by plaintiff--anything that makes the filings of the
> pleadings alone completely bogus or
> even criminal)?
What's with the weird line spacing allova sudden?
No, the extraneous matter doesn't have to be something extraordinary,
just something NOT fully covered by the 4 corners of the pleadings
themselves. It can be something like a Statute of Limitations (which
is a matter outside the pleadings if the complaint doesn't mention
pertinent dates) or any of the other AFFIRMATIVE defenses listed in
Rule 8(c)(1) which generally require the defendant to prove up the
evidentiary facts supporting those defenses (he has the burden of
proof). Or, defendant could raise a claim of IMMUNITY (qualified, or
absolute) by motion (as in Hilary's case, who may or may not be you).
That claim, too, must be specially pleaded in the Answer (if not
raised and decided bya Rule 12 preliminary motion) since it relates to
the party's "capacity to be sued" under Rule 9(a)(1)(A).
If that IS you, Hilary, aren't you already BEYOND the motion-to-
dismiss stage? Maybe it _isn't_ you.
> 3) If not (and despite the opinion of the
> attorney in the first-cited article), does
> this mean a Rule 12(b)(6) motion is
> essentially a "McTrial," as in fast-food window-service
> disposition of most plaintiffs'
> filings?
I don't know what you mean by "McTrial," or more precisely, the
BOUNDARIES of that concept are ill-defined and unclear to me because
you just made it up. The hearing on the type of motion we've been
discussing will be either
(A) a dismissal hearing, which is purely LEGAL argument over the
sufficiency of the complaint to state a legal claim on which the court
is empowered to grant relief, without regard to what the evidence
actually shows, and _assuming_ the truth of all well-pleaded facts
stated in the complaint, or
(B) a summary judgment hearing, which is NOT a substitute for a trial
on the merits, but simply a purely legal hearing to determine whether
the available evidence shows there _IS_ any genuine factual dispute
that needs to be submitted to a jury and, if there is no _factual_
dispute, whether the party moving for judgment is entitled to judgment
as a matter of law.
If either of those is what you meant by the imprecise, colloquial term
"McTrial," I suppose it is one; but, it is definitely one or the other
of (A) or (B).
> 4) What are reasons judges DO exclude
> matters outside the pleadings?
If you convince him it's too early to get into that stuff yet.
However, if the "extraneous" issue is something that would throw you
out of court early and save everyone a lot of time and money and it is
a cut-and-dried issue that you should have no problem dealing with,
such as Limitations ("You're just plain too late"), or Release ("You
already SETTLED this case with me once, and now you're suing me AGAIN
for the same thing?!"), or Immunity (You can't touch me! I'm
immune! Hahahahaha), then a fair judge usually WILL want to consider
that issue before giving the parties free rein to run through full
discovery and pretrial before deciding the issue. If anything, in
such a situation, the judge may give you more time to get discovery
LIMITED TO THE SPECIFIC ISSUE, if you show him why you need it, but
then he will typically rule on the motion before letting you go on to
the next stage of the case.
> 5) In general, if the FRCP clock is
> followed with no requests for extension of time, what is the
> briefest amount of time a Rule 12(b)(6)
> can be transformed into a MSJ, and a disposition
> made by the judge?
The judge normally isn't going to rule until after your RESPONSE to
the motion is filed, assuming your response is timely. The FedRCivP
_do_not_ specify when your response is due; In general, you have to
check the LOCAL RULES of your district to find that out. Typically,
and thankfully for a practitioner, the local rules may set the
response deadlines to match those in the parallel state court, to
avoid having lawyers who practice in both courts have to remember 2
different sets of motion deadlines and create an unnecessary trap.
Theoretically, the judge could rule on the motion IMMEDIATELY after
the deadline for filing your response. In some courts, they DO just
that, if no timely response is filed, treating the motion as
conceded. Whether or not any deadline is stated in the local rules,
if you feel you will need more time to prepare a response, it's a good
idea to PROMPTLY file a motion under Rule 6 to extend the time for
filing your response, ASKING the court to give you a specific deadline
as far down the road as you think you will need. You can always ask
to extend it AGAIN if you get close to that deadline and, despite your
diligent efforts to prepare, you find you still need more time.
> (By this I mean--
> Defendant files Rule 12(b)(6) and gets matters outside
> the pleadings included; Plaintiff
> responds with matters outside the pleadings; Judge rules.)
Yep. It could happen the day after, or the minute after, Plaintiff
responds to Defendant's motion. Or, it could take months, depending
on when the judge gets around to it.
> 6) If a plaintiff has not had the time to
> gather all the affidavits, documents, or depositions
> he needs in order to file a response,
> what is the greatest amount of time he can reasonably
> expect a judge to give him to go
> through speeded-up discovery?
As much time as he needs. You argue for what you think you need, and
the judge gives you what HE thinks you can get by with. What other
answer were you expecting? It's a case-by-case determination, based
on your unique circumstances.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
nos...@isp.com
substance:
> [The exercise of judicial discretion pursuant to FRCP 12(d)
> to treat a Rule 12(b) motion as one for summary judgment
> pursuant to Rule 56] is . . . a disadvantage [to plaintiffs who
> had] not intended . . . a Rule 56 motion, as they are now
> forced to deal with the results of a ruling on summary judgment
> without first having had the benefits of discovery.
This too generalized "one size fits all" opinion reflects an almost
complete lack of understanding both of the texts and of the underlying
policies sought to be vindicated and which for the most part are
vindicated by these rules.
Not least of your evidently merely presumed but not rule-supported and
anyway incorrect assumptions is your apparent belief (it indeed
appears to be a core premise of your above-stated opinion and for much
of the rhetorical elements of your related questions below) that an
overriding purpose of Rules 12(b), 12(d), 56, and the other related
provisions of the FRCP as well is or at least ought be to "advantage"
plaintiffs in general over and as against defendants in general
whereas these rules' text and underlying purpose, overwhelmingly
achieved, is to be even-handed. *
Others of your questionable or outright incorrect presumptions are
reflected directly or at least in effect in your questions below.
> 1) How can a plaintiff ask the court to exclude "matters
> outside the pleadings?"
This question is of course the correlative of your above stated
assumption that when a defendant invokes Rule 12(d) to request
pre-answer Rule 56 adjudication, a plaintiff is "forced" to address
the merits of whatever are the "outside the pleadings" matters or risk
an adverse Rule 56 ruling "without first having had the benefits of
discovery."
However -- and as Rule 12(d) makes clear ON ITS FACE -- one frequently
present and so (obvious) example why such an assumption is incorrect
-- and so also a commonly provided and equally commonly judicially
accepted answer this question -- is that the plaintiff who (actually)
requires discovery to be able to respond effectively to a Rule
12(d)/56 _request_ (not unilaterally implemented directive) by a
defendant is to respond by asking the court to exclude and so not
consider matters outside the pleadings (even if already proffered by
the defendant as part of defendant's motion) and not otherwise convert
the defendant's Rule 12(b) motion into one for Rule 56 relief by
supporting that request with _articulated_ REASONS why such an
approach instead of the one requested by the defendant is most likely
to vindicate FRCP principles/purposes.
It thus is not so that, merely because a defendant makes a Rule 12(d)
request, a plaintiff is "forced" into acquiescing.
Q: "How" does a plaintiff "ask" this?
A: In/by writing timely served and filed
in response to defendant's motion
(and sometimes, too, if the facts warrant,
by way of a conference conducted in
person or by phone during which these
sorts of considerations often can be
mooted by some combination of stipulation
and formal or informal judicial directive) --
IOW, by a common-sense/PRACTICAL and not,
as in these sorts of postings, abstract and over
-intellectualized approach.
> 2) [As a predicate for Rule 12(d) relief, d]o the matters
> outside the pleadings have to be of an extraordinary nature
> (showing agreement not to sue, proving perjury by plaintiff
> -- anything that makes the filings of the pleadings alone
> completely bogus or even criminal)?
No, although, if/when present, your parenthetically summarized
examples are among those that would make the grant of Rule 12(d)/56
relief appropriate.
> 3) If not . . ., does this mean a Rule 12(b)(6) motion
> is essentially a "McTrial," as in fast-food window-service
> disposition of most plaintiffs' filings?
No. At least not if, as is VERY common, defendant's proffered facts
and legal argument in support of defendant's such request are
preponderantly less percussive than those submitted and argued by
plaintiff in support of why the court should not convert a Rule 12(b)
motion to one for relief pursuant to Rule 56 including by ordering a
fair opportunity to conduct discovery and to do whatever if anything
else plaintiff factually and legally demonstrates is required in the
interests of justice to be able fairly to respond on (or, for that
matter, to move on) the merits for Rule 56 relief (as, meanwhile, it
presumably has not escaped your attention that, even when it clearly
applies, Rule 56 itself contemplates a similar deferral).
If, however, defendant's supporting facts/arguments are notably more
persuasive than plaintiff's in seeking a deferral as against
considering the merits of defendant's Rules 12(d)/56-related
application -- e.g., if it is comparatively clear that plaintiff seeks
delay for its own sake and to expose defendant to avoidable
costs/expenses of litigation which, however, the parties' respective
papers show to be unnecessary (or worse), then in such case it
benefits a _plaintiff_ along with a defendant and also the court and
so, in effect, too, society in general to glean out what clearly is a
"loser" of an attempted (but maybe not even well-attempted) lawsuit.
> 4) What are reasons judges DO exclude matters
> outside the pleadings?
They are too many to list here, although this question alreay has been
asked and answered (including by you) above. Still, and again, they
include: that defendant's request is premature because there has not
been a fair opportunity for all parties to conduct discovery that is
reasonably required, as shown by facts/arguments plaintiff
articulates, or that there has not been a reasonable opportunity for
plaintiff to have otherwise obtained documents and related information
pertinent to and needed before a just decision on the merits or not of
a Rule 56 motion would be appropriate, as shown by facts/arguments
plaintiff articulates; etc., ETC., Etc.
> 5) In general, if the FRCP clock is followed with
> no requests for extension of time, what is the
> briefest amount of time a Rule 12(b)(6) can be transformed
> into a MSJ, . . .
. . . possibly, three or four days, or maybe a week or two or three
and, in unusual/rare cases, maybe a day or two, although thee
act/ruling of "tranforming" a Rule 12(b) into a Rule 56 motion does
not necessarily, or even ordinarily, mean that plaintiff will not be
given a fully fair amount of time thereafter to respond to the merits
and (especially if ou are who I suspect on the basis of earlier m.l.m.
postings who you are, and so recalling, e.g., how long you and the
magistrate respectively dragged your feet re. merely the filing of
your attempted initial complaint and related preliminary matters) to
pose a question like this, as here, conjecturally in terms of "the
briefest amount of time" presupposes an utterly unrealistic time-frame
to take seriously even as a hypothesized "what if?" scenario . . .
> . . . and a disposition made by the judge?
Are you asking about the rare/exceptional lawsuit (remember Bush v.
Gore and Gore v. Bush? the Pentagon Papers Case? numerous capital
punishment related federal habeas corpus cases? etc., etc.) are a
garden-variety one of the sort to which you evidently refer?
A federal district court judge is required to allow and pretty much
all such judges (and, when assigned, magistrates) do allow a party
opposing a motion for summary judgment (and, for that matter, pretty
much every other kind of important motion) a reasonable opportunity to
respond, including, if a need therefor is shown, by way of a fair
opportunity for fact-gathering, legal research, and document drafting.
What is reasonably required in/for any particular motion in any
particular litigation depends on knowing/evaluating the specifics of
the case and motion, which, however, you have been assiduous and
indeed tenacious in avoiding in posing your mostly abstract queries
above and below and elsewhere.
> 6) If a plaintiff has not had the time to gather all
> the affidavits, documents, or depositions he needs in
> order to file a response, what is the greatest amount
> of time [s/he or it] can reasonably expect a judge to
> give him to go through speeded-up discovery?
This, too, depends on the nature/specifics of the lawsuit. Further,
this question's inclusion of reference only to what "a judge [would]
give" deflects from the also near-universal reality that opposing
counsel ordinarily stipulates to reasonably requested schedules AND,
given this common reality, also deflects from the also near-universal
reality that what time and discovery opportunities, etc., "a judge
[will] give" is almost always affected by whether the parties have
stipulated and, if not, by why not.
IOW, here, too, you here ask a primarily "common sense" and otherwise
PRACTICAL question, the answers to which are always determined by
practicality, but without any factual context why the request you
presume would be made to "a judge" for time would be made at all.
Two even more basic related infirmities with this question are
- your core supposition that whoever is the particular
plaintiff in question who wishes to oppose the grant of Rule 12(d)
relief to convert a Rule 12(b) motion to one for (whole? partial?)
summary judgment is correct rather than potentially self-damaging in
wanting to implement that wish, whereas there may be (and often are)
any number of considerations why (e.g., in a "j'iu j'itsu" exercise)
it may be desirable for that plaintiff to encourage consideration of
such a motion on its merits, and, in any event,
- your related "given" that the plaintiff does actually "need"
documents s/he does not already have (and which are not included in
support of defendant's motion?) or will "need" to conduct one or more
depositions, although you also do not report or even theoretically
posit any facts whatever on the basis of which any such "need" to do
so can be reasonably (much less necessarily) determined.
Besides you not having reported any facts to the effect that the
defendant and defense counsel of interest to you have the temperament
or intellectual or financial resources to try to ask for and exploit a
"briefest amount of time" scenario, it is literally worse than worse
than ridiculous for you to assume, as you nevertheless apparently do,
that some sort of "worst case" scenario in "Bum's Rush" terms is
likely on the assigned judge's part in whatever is the lawsuit to
which you refer.
In any case, a plaintiff who has not established by his or her earlier
actions (and, mayb,e inaction) in the lawsuit that s/he is litigating
in bad faith and that she is non-serious can expect a federal judge to
afford a reasonably comfortable time to respond to a Rule 12(d) or to
an outfight Rule 56 motion or to any other motion the decision of
which probably would have some kind of material impact on the outcome
of the lawsuit; and there are any number of ways to remedy a judicial
abuse of such an expectation.
---------------------------------------------
* That basic because essentially neutral/even-handed
fairness is both the rule and actuality in Rule 12(d)
contexts is not to say that such fairness typifies all
FRCP related disputes and judicial rulings. E.g., how
Rule 12(d) actually is most commonly applied differs
substantially from, f'r'instance, what the present
radically and indeed rabidly anti-plaintiff (and
especially anti-civil-rights law plaintiffs) majority of
the supreme court and like-minded lower court judges
have been doing in their for the most part dishonestly
rationalized disregard of the text and basic purposes
of Rules 1, 8, and 9 in transmuting the (putatively
"neutral") "gatekeeper" function presented by Rules
8 and 9 into de facto but attempted to be concealed
rulings against the merits even of, honestly and otherwise
fairly evaluated, very well-pleaded and also probably
fact-based claims in a manner to slam shut the federal
courthouse door much less provide fair adjudication.
Charmin
>
> But yes, it is often a disadvantage to plaintiff to have to deal with
> detailed factual issues outside the pleadings at an early stage in the
> case. � That's why, in his response, a plaintiff may (in addition to
> meeting the defense allegations head-on right then and there) either
>
> (A) ask for MORE TIME to conduct discovery, since "All parties must be
> given a reasonable opportunity to present all the material that is
> pertinent to the motion" OR, if the court DOES want to rule on the
> motion at that time,
>
> (B) ask the court to EXCLUDE the extraneous material as not really
> pertinent to what needs to be decided at THAT stage, which is simply
> the legal sufficiency of the complaint to state a viable cause of
> action.
What if a plaintiff DOES want to respond? I realize it means that
makes the motion the grand finale, but what can he lose by going-for-
broke (outside of losing)? Do judges ever regard a "surprise response"
by a pro se plaintiff favorably?
> So, it's a dilemma, one that calls for some
> guesswork, and exercise of sound professional judgment. � Which, of
> course, as a pro se, is a quantity you have in desperately short
> supply because you have no professional training or experience. � I'm
> trying, here, to at least give you some guidelines by which you can
> exercise some common-sense good judgment on your own, assuming you (or
> your buddy, I keep forgetting) have that capacity.
Which is why I post here.
> (B) a summary judgment hearing, which is NOT a substitute for a trial
> on the merits, but simply a purely legal hearing to determine whether
> the available evidence shows there _IS_ any genuine factual dispute
> that needs to be submitted to a jury and, if there is no _factual_
> dispute, whether the party moving for judgment is entitled to judgment
> as a matter of law.
It feels like a trial-on-the-merits and is a directed verdict
nonetheless, right?
> However, if the "extraneous" issue is something that would throw you
> out of court early and save everyone a lot of time and money and it is
> a cut-and-dried issue that you should have no problem dealing with,
> such as Limitations ("You're just plain too late"), or Release ("You
> already SETTLED this case with me once, and now you're suing me AGAIN
> for the same thing?!"), or Immunity (You can't touch me! � I'm
> immune! � Hahahahaha), then a fair judge usually WILL want to consider
> that issue before giving the parties free rein to run through full
> discovery and pretrial before deciding the issue. � If anything, in
> such a situation, the judge may give you more time to get discovery
> LIMITED TO THE SPECIFIC ISSUE, if you show him why you need it, but
> then he will typically rule on the motion before letting you go on to
> the next stage of the case.
There is a possibility that this could be adjudicated as a clear
contract violation, but that is not what my buddy has based his
complaint on.
> The judge normally isn't going to rule until after your RESPONSE to
> the motion is filed, assuming your response is timely. � The FedRCivP
> _do_not_ specify when your response is due; In general, you have to
> check the LOCAL RULES of your district to find that out. �Typically,
> and thankfully for a practitioner, the local rules may set the
> response deadlines to match those in the parallel state court, to
> avoid having lawyers who practice in both courts have to remember 2
> different sets of motion deadlines and create an unnecessary trap.
I didn't know this. Thank you.
> Theoretically, the judge could rule on the motion IMMEDIATELY after
> the deadline for filing your response. � In some courts, they DO just
> that, if no timely response is filed, treating the motion as
> conceded. � Whether or not any deadline is stated in the local rules,
> if you feel you will need more time to prepare a response, it's a good
> idea to PROMPTLY file a motion under Rule 6 to extend the time for
> filing your response, ASKING the court to give you a specific deadline
> as far down the road as you think you will need. �You can always ask
> to extend it AGAIN if you get close to that deadline ...
I asked yesterday for a subjective opinion about calling witnesses.
What if a pro se knows he is desperately lacking in legal ability and
feels that it *may* (operative word "may") be possible to respond to a
defendant's MSJ with all the documentary evidence he will need? What
happens if both sides present evidence--does the judge then greenlight
the matter for trial, or does he issue the judgment on the evidence
then-and-there?
Mike Jacobs
> On Aug 4, 11:17 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
> > in his response, a plaintiff may (in addition to
> > meeting the defense allegations head-on right then and there) either
>
> > (A) ask for MORE TIME to conduct discovery,
> > OR, if the court DOES want to rule on the
> > motion at that time,
>
> > (B) ask the court to EXCLUDE the extraneous material
> What if a plaintiff DOES want to respond?
Then, you DO. Didn't I just say that, above? It's your call. No
one else can strategize for you; you are your own counsel. You have 3
choices, as noted: shoot the whole ball of wax raised by the SJ
motion, ask for more time for discovery before you shoot the whole SJ
ball of wax, OR address just the sufficiency-of-pleadings issues and
ask the court to exclude consideration (at this early stage) of any
extraneous material. Which the court may, OR MAY NOT, be willing to
do, so you had best be prepared BOTH ways.
> I realize it means that
> makes the motion the grand finale, but what can he lose by going-for-
> broke (outside of losing)?
Losing. Can't lose anything else except losing. Isn't that reason
enough to try to do it right (whatever YOU decide "right" means?) I
just hope you're going to make your decision based on your sound
judgment about the MERITS of each approach, rather than wanting to go
out in a "blaze of glory" because you like its dramatic effect and see
life-as-a-movie.
Personally, the next time I take a motorcycle tour to New Orleans, I
do _NOT_ want to wind up on the wrong end of a redneck's shotgun and
flip him off and get splattered by the side of the road like happened
to Peter Fonda in "Easy Rider," iconic as that cinema moment was.
Life is not a movie. I want to live to ride another day.
> Do judges ever regard a "surprise response"
> by a pro se plaintiff favorably?
Sorry, but that strikes me as a non-sensical question. I don't mean
to discourage you from asking, but I just can't understand and respond
to it the way you framed it.
You have 3 action options, as outlined above: NONE of them is a
"surprise." In fact, I suppose you have a 4th option, that being to
do nothing (make no response within the time allowed). For a pro se,
that probably wouldn't be a surprise to the judge either.
But the fact that you are pro se, does not, OFFICIALLY, matter one way
or the other to the judge. You need to pick which response approach
you want to take to address defendant's motion, IF and WHEN it is
filed (I assume this is all still just future speculation), then DO
it. The judge will then consider your response for what it is worth,
and will rule.
He will try to not let the fact you are pro se come into the matter at
all; but if it does, it is far more likely he will cut you some slack
over some procedural irregularity you overlooked, something that he
would _not_ allow a trained advocate to get away with, giving you
BETTER consideration than a party with a lawyer would get.
Still, pro se or not, the judge will try to evaluate the SUBSTANTIVE
merits of your arguments on a level playing field. If you are making
crappy arguments, it is not the judge's fault, nor is he being unfair,
if it turns out he likes the opposing attorney's arguments better -
he's not doing so "just because" you're pro se, he's doing so because
your arguments are crappy and illogical and don't hold water. The way
to avoid having that happen is, craft good arguments.
> > So, it's a dilemma, one that calls for some
> > guesswork, and exercise of sound professional judgment.
<snip>
> Which is why I post here.
But you're still focusing overwhelmingly on ad hominem issues (such as
the fact you are pro se, and your own emotional responses to things)
rather than the MERITS of the various sound legal arguments available
to you, and the FACTS of your case, and how those arguments might
apply to those facts. Which is why I'm not sure any of us are being
of much help in the long run.
> > (B) a summary judgment hearing, which is NOT a substitute for a trial
> > on the merits, but simply a purely legal hearing to determine whether
> > the available evidence shows there _IS_ any genuine factual dispute
> > that needs to be submitted to a jury and, if there is no _factual_
> > dispute, whether the party moving for judgment is entitled to judgment
> > as a matter of law.
>
> It feels like a trial-on-the-merits and is a directed verdict
> nonetheless, right?
NO, that's exactly the point I was trying to make, above, and which
you didn't seem to get; SJ is NOT a substitute for a full trial. An
SJ motion (and hearing, if one is held) will focus on one, or a few,
NARROW, SPECIFIC facts as to which the movant (your opponent, the one
who files the SJ motion) claims there is NO GENUINE DISPUTE - frex,
facts which show he is a government agent entitled to a claim of
qualified immunity, or that you previously signed a release, or that
you missed the statute of limitations - and that, upon those facts
(which may require him to introduce some evidentiary materials outside
the pleadings to prove those facts, as to which he claims there is no
genuine dispute, and which are FAR SHORT of the full body of evidence
that would have to be adduced at a trial of all issues) he claims he
is entitled to judgment AS A MATTER OF LAW.
In other words, a judge can grant SJ only if the issue the movant
chose to base his motion on, means there is NO other disputed material
factual issue left for the jury to decide. Conversely, all you have
to do to defeat SJ is to show the judge that YES, there still is a
genuine factual dispute that means you _could_ have a chance to win at
trial, if he will only let your case get to the jury. You just have
to show the existence of evidentiary grounds* for a genuine DISPUTE,
not that you would _necessarily_ win in front of the jury on that
issue. IOW, you as the opponent of SJ do _not_ have to show that YOU
instead of the movant are entitled to judgment as a matter of law -
you aren't going to WIN then and there, you just want a chance to
prove your case to a jury later, at the trial.
* But you cannot "bootstrap" a dispute out of conclusory allegations,
or out of evidence that is insufficient as a matter of law to meet the
required burden of proof - you need to show existence of admissible
evidence sufficient to get to the jury on that issue. That's what
Catrett et al. were all about.
OTOH, a factual dispute is not "material" if it would make no
difference to the final outcome. There may indeed BE lots of disputed
factual issues that have not yet been resolved, issues that would HAVE
TO be resolved if you went to a full trial - frex, the damages issue
(how badly were you hurt?) or other liability issues - but NONE OF
THOSE ISSUES ARE MATERIAL any longer, if the ONE issue on which SJ is
based - such as immunity, frex, or missing limitations - will dispose
of the entire case and make a decision on all those other issues
UNNECESSARY. That's why it's called a "summary" judgment.
Of course, we already discussed on another thread, the situation where
SJ is based on a defense contention that YOU the plaintiff cannot,
after due discovery, come forward with any sufficient evidence on at
least one of the essential elements of your prima facie case, a
"Celotex" motion. But that is NOT what we are talking about here,
where a defendant seeks to convert a MTD into an MSJ by attaching
evidentiary materials extraneous to the pleadings and asks for an
affirmative ruling in his favor based on those evidentiary materials.
<snip>
> There is a possibility that this could be adjudicated as a clear
> contract violation, but that is not what my buddy has based his
> complaint on.
If so, heaven only knows why, if the contract violation is "clear."
If this "buddy" is really you, Hilary, and you had the option of
simply suing your landlord in State court for wrongfully breaking your
lease, constructively evicting you by refusing to deal with the
neighbor's noise, and thereby causing you serious mental distress and
other damages, WHY DIDN'T YOU take that easier path? Instead of the
convoluted, difficult, nearly impossible Federal Civil Rights path you
chose?
The damages you could personally claim for the harm that was done to
you would be the same, in either event. OTOH, if you chose the hard
path just because you wanted to "make an example" of this landlord AND
of the state agency that ruled against your FHA complaint, and have
the court issue a mandatory injunction against them to force them to
change their ADA/FHA complaint adjudication procedures, in hopes that
YOU would become the new poster child for those with "hidden
disabilities" and get the court to write a new, groundbreaking Brown
v. Board of Education-type opinion for PTSD sufferers, I just don't
think that's likely to happen, especially in this Twombly/Iqbal era
when we're dealing with a reactionary, anti-Civil-Rights Court.
Or if it _does_ happen, it won't happen until after many, many PTSD
sufferers such as yourself TRY, and FAIL, to make such a case, before
one of you finally succeeds and gets the Court to turn itself
around. None of which will help YOU, is all I'm saying. So, if
your goal is to GET MONEY for what happened to you, you're going about
it all the wrong way.
OTOH if your goal is to be one of the people at the bottom of the
dogpile of crushed losers upon whom somebody _else_ can finally stand,
as you all try to climb up the greased flagpole of success and grab
the brass ring on top, you may be well on the way to playing that role
in history. I just don't think you'll be the one to eventually grab
the brass ring, because there are not enough crushed bodies under you
yet, for you to stand on.
If it's not too late to reconsider filing a plain old contract claim
against landlord in state court, perhaps you should think of that
angle if your goal is to actually WIN.
<snip>
> I asked yesterday for a subjective opinion about calling witnesses.
> What if a pro se knows he is desperately lacking in legal ability and
> feels that it *may* (operative word "may") be possible to respond to a
> defendant's MSJ with all the documentary evidence he will need?
Then, you do that. Or not. It's your call, and especially if you
are not even going to reveal what that evidence IS on either side, or
what the legal arguments are, no one here can help you decide which
approach works best. it's not a "you have to do X and nothing else
works", kind of thing, where someone can just school you in what to do
- your choices are X, Y, or Z or doing nothing, and the choice of
which one is likely to work best depends on all the circumstances,
including things that you are keeping secret.
> What
> happens if both sides present evidence--does the judge then greenlight
> the matter for trial,
Only if the opponent of SJ shows that there remains at least one
genuine, disputed, MATERIAL fact issue that must be presented to the
jury. That's what trials are FOR.
As an aside, you seem to be assuming there is something "good" in and
of itself about getting to trial. A trial is simply a tool, ONE part
of the available legal procedure, and the purpose of that tool is to
RESOLVE DISPUTED FACT ISSUES. That's ALL a merit trial of the
evidence is for. If it turns out there are NO genuine FACTUAL
disputes between the parties - they agree on what happened, but the
parties just have different views on what outcome the law should
provide based on those facts - BOTH sides are better served by having
their disputed claims disposed of on purely LEGAL grounds, by the
judge.
Even if a case does eventually have to go to trial, hopefully (for
EVERYONE'S sake, including the poor jury who may have to sit through
days of otherwise useless proof of things not really in dispute, and
get bored silly) many of the _potentially_ disputed factual issues
will already have been disposed of, by stipulation, by requests for
admissions, or by motions that resulted in abandonment of some of the
original claims or defenses by a _partial_ grant of MTD or SJ, leaving
other issues still to be decided.
The goal of a litigator throughout is, or SHOULD be, to resolve the
particular dispute fairly and fully, but as ECONOMICALLY as possible
in terms of time and effort, not to make a "grandstand play" or go
down in history. And the sensible litigator does not leave it all up
to one "Hail Mary" pass with one second left in the game, unless
that's the ONLY option he has - otherwise, it's best to go for the
EASY, and EARLY scores. Still, a win is a win, whether you do it by
slogging through the trenches, or by "shock and awe" - but frankly,
the long slog is usually a more reliable way to get there for
_plaintiffs_, while "shock and awe" sometimes works for defendants if
they can bomb a case out of existence on SJ.
> or does he issue the judgment on the evidence
> then-and-there?
On SJ, the judge is _not_ ruling on what any of the evidence means, or
deciding any disputed fact issues. He is just determining whether
there ARE any disputed fact issues that have to go to trial.
He will enter a judgment then and there, _IF_ the parties' positions
on the motion show there is NO remaining disputed material fact issue,
and that one or the other party is entitled to judgment as a matter of
law. Otherwise, a merit trial will be necessary to decide the
remaining disputed fact issue(s).
Charmin
notification of summons-service is not *confirmation* of service.
Summons were issued in July; no record of service exists. Lag-time of
issuance and actual service was attributed to summer vacations and
shortened business hours. All posts I've made on discovery--
depositions, FRCP, interrogatories, etc.--were made based on belief
that twenty days would be the length of time needed to understand and
prepare a "combo" MTD/MSJ.
On Aug 7, 12:45�pm, Mike Jacobs <mjacobs...@gmail.com> wrote:
> On Aug 6, 7:30 am, Charmin <carmendif...@yahoo.com> wrote:> On Aug 4, 11:17 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > What if a plaintiff DOES want to respond?
>
> [SNIP] [A]ddress just the sufficiency-of-pleadings issues and
> ask the court to exclude consideration (at this early stage) of any
> extraneous material. �Which the court �may, OR MAY NOT, be willing to
> do, so you had best be prepared BOTH ways.
Why should a judge ask for any input? Are these motions in opposition
ever argued orally by pro se plaintiffs? They don't make a judge a
judge because of his good looks, so why would the plaintiff have to do
anything other than just sit and wait for the judge to decide for
himself whether to exclude the extraneous material? (A pro se can't
educate a judge.)
> > I realize it means that
> > makes the motion the grand finale, but what can he lose by going-for-
> > broke (outside of losing)?
>
> Losing. � Can't lose anything else except losing. �Isn't that reason
> enough to try to do it right (whatever YOU decide "right" means?) �I
> just hope you're going to make your decision based on your sound
> judgment about the MERITS of each approach, rather than wanting to go
> out in a "blaze of glory" because you like its dramatic effect and see
> life-as-a-movie.
Seeing life-as-a-movie is quantitatively different from being an
exhausted and overwhelmed citizen with a cause of action deemed bona
fide but that even a solo practicing attorney might be daunted by. I
don't think any plaintiff in his or her right mind wants to lose; a
plaintiff can be worn down.
> > Do judges ever regard a "surprise response"
> > by a pro se plaintiff favorably?
[SNIP]
> But the fact that you are pro se, does not, OFFICIALLY, matter one way
> or the other to the judge. � You need to pick which response approach
> you want to take to address defendant's motion, IF and WHEN it is
> filed (I assume this is all still just future speculation), then DO
> it. �The judge will then consider your response for what it is worth,
> and will rule.
How come federal district courts vary so much in local rules regarding
length of briefs in opposition? I don't know for sure, but I imagine a
brief in opposition to a motion for summary judgment is longer than
one for a motion to dismiss. The stress of saying something
substantive, while doing it all in rhyming couplets, so to speak, is
just one of the exhausting things.
> > It feels like a trial-on-the-merits and is a directed verdict
> > nonetheless, right?
>
> NO, that's exactly the point I was trying to make, above, and which
> you didn't seem to get; SJ is NOT a substitute for a full trial. � An
> SJ motion (and hearing, if one is held) will focus on one, or a few,
> NARROW, SPECIFIC facts as to which the movant (your opponent, the one
> who files the SJ motion) claims there is NO GENUINE DISPUTE - frex,
> facts which show he is a government agent entitled to a claim of
> qualified immunity, or that you previously signed a release, or that
> you missed the statute of limitations - and that, upon those facts
> (which may require him to introduce some evidentiary materials outside
> the pleadings to prove those facts, as to which he claims there is no
> genuine dispute, and which are FAR SHORT of the full body of evidence
> that would have to be adduced at a trial of all issues) he claims he
> is entitled to judgment AS A MATTER OF LAW.
Well, none of the above are applicable, no QI, signed releases, missed
statutes. That's why I posted about the Celotex/Catrett decision;
however, Anderson is the most frightening. Anderson makes neophytes,
at least, believe SJ depends not on anything substantive at all but on
a judge taking the place of an emperor who is wearing new clothes and
wants the plaintiff to say yes, your honor, the train-wreck caused by
defendant was not sufficiently "plausible."
> In other words, a judge can grant SJ only if the issue the movant
> chose to base his motion on, means there is NO other disputed material
> factual issue left for the jury to decide. � Conversely, all you have
> to do to defeat SJ is to show the judge that YES, there still is a
> genuine factual dispute that means you _could_ have a chance to win at
> trial, if he will only let your case get to the jury. �You just have
> to show the existence of evidentiary grounds* for a genuine DISPUTE,
> not that you would _necessarily_ win in front of the jury on that
> issue. �IOW, you as the opponent of SJ do _not_ have to show that YOU
> instead of the movant are entitled to judgment as a matter of law -
> you aren't going to WIN then and there, you just want a chance to
> prove your case to a jury later, at the trial.
I ask again only because I really need to know--do judges routinely or
EVER decide a MSJ launched by the defendant in the plaintiff's favor
(after plaintiff responds)?
> If so, heaven only knows why, if the contract violation is "clear."
> If this "buddy" is really you, Hilary, and you had the option of
> simply suing your landlord in State court for wrongfully breaking your
> lease, constructively evicting you by refusing to deal with the
> neighbor's noise, and thereby causing you serious mental distress and
> other damages, WHY DIDN'T YOU take that easier path? � Instead of the
> convoluted, difficult, nearly impossible Federal Civil Rights path you
> chose?
I now suppose by the spelling of that name you think I'm a guy *or* a
girl. You kids! 1) The contract violation in question was not
discovered by plaintiff until extremely recently; and 2) even if it
had been discovered, state court systems are harder for a pro se
plaintiff to understand; and 3) unless you have been the victim of a
particular sort of tort, you won't understand that some offenses
strike at human identity.
> [W]e're dealing with a reactionary, anti-Civil-Rights Court.
That's why I'm asking this question about plaintiffs ever winning at
MSJ. I just read a site that says Iqbal has been cited more than 500
times in less than two months. It tends to make one a lot less certain
that sixty years ago in Europe one would have not goose-stepped or
collaborated or just sunk to one's knees in submission. One night in
Bangkok makes a hard man humble, I guess you could say.
> So, if your goal is to GET MONEY for what happened to you, you're going about
> it all the wrong way.
Money has never been the only or major issue in this case.
> OTOH if your goal is to be one of the people at the bottom of the
> dogpile of crushed losers upon whom somebody _else_ can finally stand,
> as you all try to climb up the greased flagpole of success and grab
> the brass ring on top, you may be well on the way to playing that role
> in history. � I just don't think you'll be the one to eventually grab
> the brass ring, because there are not enough crushed bodies under you
> yet, for you to stand on.
I'm very grateful you brought this up, because on the Celotex/Catrett
thread, which has taken a turn toward Brown v. Board of Education and
Thurgood Marshall's manoeuvering, I previously posted a (rightly)
rejected post. Victims/plaintiffs in certain "cluster cases" deserve
great sympathy and respect, but only an idiot would believe they got
into court in, say, 1954, on their own merits. There are a lot of
nooses still rotting because someone asked for a book for their boy or
girl in 1897.
> As an aside, you seem to be assuming there is something "good" in and
> of itself about getting to trial. � A trial is simply a tool, ONE part
> of the available legal procedure, and the purpose of that tool is to
> RESOLVE DISPUTED FACT ISSUES. � That's ALL a merit trial of the
> evidence is for. � If it turns out there are NO genuine FACTUAL
> disputes between the parties - they agree on what happened, but the
> parties just have different views on what outcome the law should
> provide based on those facts - BOTH sides are better served by having
> their disputed claims disposed of on purely LEGAL grounds, by the
> judge.
In fact, I assume that this particular case could if adjudicated
attentively at this point be over and done with by a judge. The
exhausting part--and I'm sure this is as exhausting for an attorney as
for a pro se, at least in a case the attorney has some motivation to
really care about--is not knowing whether to anticipate a verdict as a
matter of law or a trial. Why get prepared and all geared up, and then
settle? Being an attorney with integrity must be bone-numbingly tough.
> The goal of a litigator throughout is, or SHOULD be, to resolve the
> particular dispute fairly and fully, but as ECONOMICALLY as possible
> in terms of time and effort, not to make a "grandstand play" or go
> down in history. �And the sensible litigator does not leave it all up
> to one "Hail Mary" pass with one second left in the game, unless
> that's the ONLY option he has - otherwise, it's best to go for the
> EASY, and EARLY scores. � Still, a win is a win, whether you do it by
> slogging through the trenches, or by "shock and awe" - but frankly,
> the long slog is usually a more reliable way to get there for
> _plaintiffs_, while "shock and awe" sometimes works for defendants if
> they can bomb a case out of existence on SJ.
Understood.
Mike Jacobs
> (Top-posting necessary.) It was learned this past week that PACER
> notification of summons-service
Are you sure you don't mean, "summons-ISSUANCE" instead of "service"?
> is not *confirmation* of service.
No, but PACER will not list a "service of summons" on its docket
unless SOMEONE (your process server, whoever that was?) FILED an
affidavit of service in the case, swearing that he HAD in fact served
the defendant with the suit papers (summons and complaint, and
whatever other forms the clerk provided you and required you to attach
to those for service). So, maybe you misunderstood what PACER told
you.
> Summons were issued in July; no record of service exists.
Who did you ask to try to serve the summonses? A private process
server? Federal marshals? Or did you send them by certified mail,
return receipt requested?
The court clerk issues the summonses to YOU, the plaintiff, for you to
do with what you will It is NOT up to the Court to get them
served. YOU have to take that ball and run with it - except that as
a pro se party, you cannot PERSONALLY be the one to serve your opponent
(s). You have to get another, unrelated and unaffiliated to you,
person to do that. And, note that in Fed Ct., under Rule 4 you have
a very LIMITED amount of time in which to do that (120 days, IIRC) and
to file your successful return of service, or else your case against
an unserved defendant may be dismissed for failure to prosecute and
failure to acquire personal jurisdiction over the defendant(s) who
were not served.
> Lag-time of
> issuance and actual service was attributed to summer vacations and
> shortened business hours.
That's BS, frankly. WHOSE vacation? Next time, hire a process
server who isn't planning to go on vacation the next day, and who sits
on your papers along with the others piling up on his desk for 2 or 3
weeks until he gets back from the beach. YOU'RE the boss, YOU are in
control. You don't have to tolerate such delays unless you do so
WILLINGLY by failing to TAKE control of the situation as is your
right.
If instead you mean, your process server couldn't find the defendant
because _defendant_ was on vacation, that's a different issue, but
defendant could STILL be served while he was away - by handing the
papers to a person of suitable age and discretion at his usual
domicile or a person authorized to accept service at his place of
business, frex. Any professional process server who is any good
should know how to get a person served promptly, unless you're dealing
with a defendant's intentionally evasive attempt to avoid service, in
which case you go back to court and file a motion asking the judge to
let you serve him by alternative means.
> All posts I've made on discovery--
> depositions, FRCP, interrogatories, etc.--were made based on belief
> that twenty days would be the length of time needed to understand and
> prepare a "combo" MTD/MSJ.
The defendant will have that long to answer and/or file a preliminary
motion, after being served (unless some exception requiring a longer
time applies - governmental defendants, frex, typically get 60 days,
people served outside the country may get 90 days, and so on). But,
that is the time they have to file THEIR first shot in the game. YOU
then have however long your local rules give you, after you receive
ECF notice of THEIR filing, in which you can respond to theirs.
> On Aug 7, 12:45 pm, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > On Aug 6, 7:30 am, Charmin <carmendif...@yahoo.com> wrote:
> On Aug 4, 11:17 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > > What if a plaintiff DOES want to respond?
>
> > [SNIP] [A]ddress just the sufficiency-of-pleadings issues and
> > ask the court to exclude consideration (at this early stage) of any
> > extraneous material. Which the court may, OR MAY NOT, be willing to
> > do, so you had best be prepared BOTH ways.
>
> Why should a judge ask for any input?
The judge doesn't ASK for input. It's up to THE PARTIES to provide
whatever input THEY want the judge to consider. The judge won't know
what you WANT him to do, unless you TELL him.
You seem to misunderstand the judicial role in deciding motions. He
is NOT trying to decide some purely legal issue that can go _only_ one
way, as to which you have no imput, either factual or legal, which
could influence the outcome. That is a totally fatalistic, and
WRONG, way to look at it. A motion is one party or the other ASKING
the judge to do something, and must provide reasons why the judge
SHOULD do that particular thing in this particular case based on all
the particular circumstances of your case. Your opposition brief
needs to tell him all the reasons why he should NOT do that thing your
opponent asked for.
The judge DOESN'T KNOW what those circumstances are, no matter how
brilliant a jurist he is - the only way he will know how his ruling
may affect you, is if you TELL him. If you need more time to address
an issue raised by your opponent's motion, you need to TELL the judge
that, in a formal paper responding to the opponent's motion. You
also need to address whatever substantive points the opponent raised
in his motion, to the best of your present ability, within the time
allowed, unless you move (BEFORE the expiration of your allowed time)
for an extensionn to do that (on the grounds you state in asking for
that extension) AND the judge GRANTS that extension BEFORE your
original time has expired. And, on most of these issues, much is
within the DISCRETION of the judge; no appellate court will reverse
whatever his ruling is, so your best shot is to be as persuasive as
possible in presenting reasons to the trial judge why he should rule
in YOUR favor on whatever the issue is.
> Are these motions in opposition ever argued orally by pro se plaintiffs?
Of course. Either side can request a hearing on a motion, but in Fed
Ct it is up to the judge whether he will grant one. Except that in
some districts, a local rule provides that the judge may not GRANT a
dispositive motion (i.e. throw the case out of court on MTD or SJ) if
the party he is planning to rule against has requested a hearing,
without GIVING that party an oral hearing. So, you're best off to
REQUEST an oral hearing any time you might want one, or the judge
COULD rule against you just on the papers.
Even if one or both sides have requested a hearing, the judge remains
free to DENY a dispositive motion (which keeps your case alive to move
on to the next step) or can rule on any other motion, without a
hearing, unless the JUDGE feels that an oral hearing would help him
decide a close issue. The judge, not you, is the one calling the
shots there.
> They don't make a judge a
> judge because of his good looks,
Being smart, wise, and evenhanded, doesn't help a bit if the judge has
NO CLUE what your case is about, or which way YOU want him to rule, or
how his ruling may AFFECT you - because the only way he can find that
out is IF YOU TELL HIM by filing a motion, or a response to your
opponent's motion.
Judges don't pick this up by osmosis. And they don't apply a one-size-
fits-all presumption to your case. In fact, the only presumptions
the judge is likely to make about your case if you DON'T reply to an
opponent's motion are 2 things: (1) YOU as plaintiff, who have the
ultimate burden of proof, have not come forward with anything at all
to show the judge why and how you are capable of meeting that burden,
and (2) you don't CARE which way he rules on the motion because you
couldn't be bothered to even TELL the judge whether or not you agreed
with the relief the opponent was requesting, whatever that was.
People DO sometimes file consent motions, to which BOTH sides agree,
you know. Or, they file UNOPPOSED motions, where one side needs
something done by the judge and the other side really _doesn't_ care
one way or the other (e.g. requesting that a hearing be postponed
because of vacation plans or a previously scheduled trial, etc.)
> so why would the plaintiff have to do
> anything other than just sit and wait for the judge to decide for
> himself whether to exclude the extraneous material?
Because he DOESN'T KNOW WHETHER YOU WANT him to do that, unless you
TELL him.
> (A pro se can't
> educate a judge.)
Wrong, on 2 counts. You misunderstand the purpose of a response to a
motion.
ONE, it tells the judge what YOU want him to do; until then, he only
knows what the OPPONENT wants him to do, and if you say nothing, he
may assume you AGREE or at least don't OPPOSE having the judge do that
thing that was requested.
TWO, yes you CAN "educate" the judge on the law applicable to your
case. The judge is NOT going to hit the law books and do independent
research to try to pick holes in whatever legal arguments your
OPPONENT has made in his brief in support of his motion; that is YOUR
job. Otherwise, the judge will assume, in absence of any reply from
you, that you also do not have any authority to offer that is contrary
to what the opponent is arguing, and he most likely will simply adopt
and rely on the OPPONENT'S arguments, perhaps even verbatim.
Only if the opponent's brief paints one story, and yours paints an
entirely DIFFERENT story supported by contrary authority, will the
judge have to dig down in the facts of your particular case, and hit
the law books, and decide WHICH one of you is right on each issue, and
maybe come to yet a _third_ conclusion about either the facts or the
law that is different from what both you and your opponent
presented. He normally won't do that unless YOU FILE AN OPPOSITION
to your opponent's motion.
if you are NOT in fact our erstwhile frequent poster here, HilaryP,
you can be forgiven for not finding the old thread, of a few months
ago (March or April or so) where we were discussing with HilaryP what
a judge's role is in the American adversary system of jurisprudence,
and how much he MUST rely on the advocates for the opposing sides to
provide competing views for him to decide between. Except in VERY
LIMITED types of cases, such as juvenile proceedings, coroner's
inquests, grand juries, and the like, the judge is NOT in an
"inquisitorial" role, taking the bull by the horns to find out what is
really going on, and doing independent legal research to decide issues
on his own. He counts on the advocates on the 2 sides to fully cover
the ballpark with competing arguments on the facts and the law. If
you drop the ball on that duty, all the judge in your case has to go
on is the version which YOUR OPPONENT provided to him. It would be
surpassingly dumb, in a nutshell, to knowingly drop that ball.
And, if you ARE HilaryP, or even if you are a genuine newbie, better
go back and read those older posts and refresh your understanding.
<snip>
> > I just hope you're going to make your decision based on your sound
> > judgment about the MERITS of each approach, rather than wanting to go
> > out in a "blaze of glory" because you like its dramatic effect and see
> > life-as-a-movie.
>
> Seeing life-as-a-movie is quantitatively different from being an
> exhausted and overwhelmed citizen with a cause of action deemed bona
> fide
"Deemed" by whom? You have to PROVE that to the judge, and to your
opponent.
You need, or needED (past tense), to have your ducks in a row about
how you intended to prove that, BEFORE you filed the suit, and as
GROUNDS for filing suit, to meet the requirements of Federal Rule 11
(which prohibits frivolous or groundless or bad faith filings).
Surely you did that, before you filed suit, at least to the extent of
researching the applicable substantive law that you claim gives you a
cause of action (we still don't know what that law IS as we have no
idea what your case is about) and framing your complaint to allege,
with a good faith factual basis, particular facts which, if proven,
would sufficiently establish each of the required elements of your
prima facie case. Otherwise, your complaint DESERVES to be thrown out
of court summarily.
> but that even a solo practicing attorney might be daunted by.
Most solo practitioners avoid impossibly difficult cases that would
totally suck up their time and prevent them from working on EASIER
cases where they could actually earn a living, with less effort.
Which is part of the winnowing process the adversary system counts on
to ensure that only MERITORIOUS cases - meaning, not simply those with
a technically viable cause of action, but only those which are WORTH
"making a federal case out of it" in the colloquial sense - get
brought to court. Case-obsessed pro ses who lack the objective
detachment from their case that a professional lawyer would have, skew
that variable.
> I don't think any plaintiff in his or her right mind wants to lose; a
> plaintiff can be worn down.
But so far, it sounds like NOTHING has happened to wear you down.
Your opponent hasn't even filed a response to your complaint yet.
Don't get all worked up over nothing, and wear yourself out, before
THAT even happens. But yes, you DO need to continue to work,
diligently and "focusedly" towards gathering the factual and legal
support you think you will need, to meet your opponent's ANTICIPATED
arguments, the same way Captain Aubrey in Patrick O'Brian's seafaring
adventure novels (or Horatio Hornblower in C.S. Forester's books)
would carefully steer his warship to approach a strange vessel that
may or may not be an enemy in disguise, not firing the first shot, but
ordering the cannons to be loaded, opening the gun ports and running
them out and aiming them, and having the crew standing by with lit
matches in hand, "just in case". If you have to start scrambling to
get ready to counter-attack only AFTER your opponent's hostile
intentions become apparent, it's probably TOO LATE to do much good -
the battle will be over before you fire your first cannonball.
> [SNIP]
> How come federal district courts vary so much in local rules regarding
> length of briefs in opposition?
Why does that matter to you? Why are you wasting your time on a purely
academic question when I assume you already KNOW whatever the brief-
length requirements are in YOUR federal district, and that you MUST
comply with them? This is another example of what I keep pointing
out to you, your lack of FOCUS on the real issues you must deal with.
Sure, it's an interesting subject to debate why some courts are more
lenient than others to long-winded litigants. But that DOESN'T MATTER
one bit to YOUR outcome, now, does it? So, if you are (as you say
above) feeling "exhausted" and "overwhelmed" by the stuff you DO need
to learn between now and whenever, and you have a hard time finding
enough time and energy to do what you HAVE TO do, then YOU DON'T HAVE
TIME to twiddle your thumbs and contemplate your navel over a purely
academic point like this.
Now, if you were someone who had said, "I've got my case situation
well in hand, everything is under control, I don't need any help,
let's go sit by the fire in my study and talk about other matters that
have aroused my curiosity," I'd be happy to discuss this with you.
Until then, FOCUS on what you NEED to know and do. I'm not going to
CONTRIBUTE to your distraction and over-whelmedness, by discussing
irrelevancies with you.
> I don't know for sure, but I imagine a
> brief in opposition to a motion for summary judgment is longer than
> one for a motion to dismiss.
Not necessarily; your brief will be however long you need it to be, to
make your points, within the limits imposed by the court's rules.
> The stress of saying something
> substantive, while doing it all in rhyming couplets, so to speak,
That's a Hilary-ism if I ever heard one.
> is just one of the exhausting things.
Learn HOW to focus. That will help relieve your anxiety AND help you
do a better substantive job. Your brief does NOT have to be in
rhyming couplets. it should NOT be cryptic and poetic. It should
be blunt, to the point, non-convoluted, non-evasive, and call a spade
a spade. AND, it should cite legal precedent that favors YOUR
interpretation of what the plain facts should require the judge to do
- not lengthy "string cites" of case after case saying the same thing,
but an IN DEPTH analysis of the reasoning of at least ONE or a few
CLOSELY ON POINT cases are best.
If there are no cases or statutes exactly on point, that means you
will have to reason by analogy and by reference to public policy, but
that is NOT likely to get you very far - really, it means you didn't
have much of a case IN THE FIRST PLACE, which you should have realized
BEFORE filing suit.
OTOH if, as you say, your case was "deemed meritorious" by SOMEONE
other than yourself, that means it should HAVE persuasive precedent
favoring your POV, unless you're using the word "meritorious"
differently than everybody else. Merit, of course, doesn't just mean
that YOU feel bad about what happened to you and want something to be
done about it; it means that OBJECTIVE facts and prior law exist that
would lead a neutral decider to the SAME conclusion, i.e. that you
were wronged by this defendant and that you are legally entitled to
claim a remedy from him as a result.
<snip discussion of what an affirmative-defense SJ may be about>
> Well, none of the above are applicable, no QI, signed releases, missed
> statutes.
In that case, it's unlikely your defendant would move for early SJ on
such a clearly dispositive affirmative-defense issue outside the
pleadings, isn't it? So, what are you worried about?
Unless, of course, you're wrong, and there IS some clearly dispositive
issue outside the pleadings just waiting to hit you over the head,
which you can't see because you think it's just the sky you see above,
rather than the giant alien mothership whose girth extends from
horizon to horizon, waiting to fry you with death rays.
Not that I want to give you anything extra to worry about, there, but
you SHOULD be questioning your assumptions and trying to get "outside"
of yourself to view your facts. Or, at least, you must TALK TO
SOMEBODY other than yourself about the FACTS of your situation to get
an outsider's opinion of whether you are missing anything obvious that
you SHOULD be seeing in this picture. If you don't want to do that
here, AT LEAST get yourself a level-headed, common-sensical private
confidant you can go do that with, and TELL him or her the whole tale,
and ASK them to be raw and OBJECTIVE in their analysis, not just to
say what they think will make you feel better because they are
sensitive to your emotional fragility. Then, LISTEN to what they are
really telling you, about matters you need to be prepared to address,
then FOCUS on how actually to do that.
> That's why I posted about the Celotex/Catrett decision;
> however, Anderson is the most frightening. Anderson makes neophytes,
> at least, believe SJ depends not on anything substantive at all but on
> a judge taking the place of an emperor who is wearing new clothes and
> wants the plaintiff to say yes, your honor, the train-wreck caused by
> defendant was not sufficiently "plausible."
That's _not_ a fair summary of what the _Anderson_ case says. But,
that's pretty much what _Iqbal_ and _Twombly_ say, as to the PLEADING
stage, before even getting to SJ. Are you sure you aren't mixing them
up?
Unless you are raising a cause of action that has a HEIGHTENED
standard of proof for your prima facie case, such as applied to the
public-figure-libel claim in _Anderson_ (where the plaintiff, as a
matter of law, had to prove actual malice to a "clear and convincing"
level, and the judge CORRECTLY ruled that evidence which could ALSO
just show negligent fact-checking did not and legally COULD not arise
to that level), the specifics of the _Anderson_ holding should mean
nothing to you, or at least, mean nothing more than _Celotex_ does
(which reached the same conclusion of lack-of-sufficient-admissible-
evidence-to-survive-SJ on hearsay, rather than standard-of-proof,
grounds)
<snip summary of how SJ motions get decided>
> I ask again only because I really need to know--do judges routinely or
> EVER decide a MSJ launched by the defendant in the plaintiff's favor
> (after plaintiff responds)?
Sure they do. Next question?
Denying SJ just means that the case will move on to the next stage.
That WILL happen in just about every case that DESERVES to go on to
the next stage, i.e. those which are factually and legally
meritorious. The bottom line being, if you can't come up with facts
supporting WHY you deserve to get a remedy from this defendant, you
DON'T deserve to get a remedy from this defendant. At bottom, that's
what the "burden of proof" means. And, that is something to consider
BEFORE even filing suit.
Did you ever stop to consider why NO attorney was willing to take your
case, assuming you ASKED at least a few of them to do so? If your
case had REAL "merit," not only a slim technical chance of winning but
a SOLID, STATISTICALLY SIGNIFICANT chance of winning SERIOUS remedy,
sufficient to justify the COST to obtain it, don't you think attorneys
would be lining up at your door, offering you their services, if you
but asked? Sorry, but IMO the reason most pro ses fare poorly, esp.
in Federal court, is that their cases DO NOT have sufficient merit to
interest a trained attorney in facing whatever hurdles must be
overcome to win. (And, even without knowing anything about your case
at al except the little you have told us, it is obvious there are
MAJOR hurdles, which you find "overwhelming" and hard to understand.
That does not bode well for success.)
Really, I'm not trying to discourage you if you DO have a viable case,
but by playing your cards so close to the vest, and saying nothing to
us except how HARD you are finding it is to pursue this, you leave us
very little option but to jump to the conclusion that you are
overwhelmed because EVEN A LAWYER (as you admit above) would find the
path you have chosen, overwhelmingly daunting.
All I'm saying is, life DOES go on, even if you decide (or the court
decides for you) that it was a MISTAKE for you to file and pursue this
lawsuit in the first place. It's NOT the be-all and end-all of your
existence, or at least, it SHOULD not be. Breathe deeply, focus, and
don't lose sight of your TRUE life goals, which may OR MAY NOT be
served by further prosecution of a hopeless, Quixotic case (IF that is
what it is; I am NOT casting judgment, as I am lacking sufficient
information to do so).
> > If so, heaven only knows why, if the contract violation is "clear."
> > If this "buddy" is really you, Hilary, and you had the option of
> > simply suing your landlord in State court for wrongfully breaking your
> > lease, constructively evicting you by refusing to deal with the
> > neighbor's noise, and thereby causing you serious mental distress and
> > other damages, WHY DIDN'T YOU take that easier path? Instead of the
> > convoluted, difficult, nearly impossible Federal Civil Rights path you
> > chose?
>
> I now suppose by the spelling of that name you think I'm a guy *or* a
> girl. You kids!
I'm not assuming ANYTHING by the spelling of your pseudonym; rather,
I'm putting 2 + 2 together on the basis of WHAT YOU WRITE, both your
writing style AND the substance of your inquiries. But, that's just
a WAG on my part. Hunches can be wrong. Different people can have
astoundingly similar cases, both on their underlying facts (as to
which we still know NOTHING about yours) and their procedural history
(and the fact they are proceeding pro se in Federal court at
approximately the same time).
> 1) The contract violation in question was not
> discovered by plaintiff until extremely recently;
Okay. So what? If limitations have not run on that claim, why not
pursue it too? Or instead? YOU are NOT bound to a particular
course of action just because it is the one you originally chose, even
when new facts come to your attention that suggest you ought to follow
a different path; that's practically the DEFINITION of obsessive-
compulsive behavior and being divorced from reality. Be flexible,
and be willing to CHANGE COURSE if the situation demands it. That's
what a sensible person does.
> and 2) even if it
> had been discovered, state court systems are harder for a pro se
> plaintiff to understand;
I disagree, but so what? Raise the (new) contract issue as an
additional count in an AMENDED complaint you can file in your existing
Federal court suit. The worst that can happen is that it will be
rejected, and you will have to struggle by with your existing Federal
cause of action. If you have TWO ways to prove liability, TWO bites
of the apple available, why THROW AWAY one of them and obsess
exclusively about the other? That does not make sense.
> and 3) unless you have been the victim of a
> particular sort of tort, you won't understand that some offenses
> strike at human identity.
Which still doesn't tell me whether or not it's "you," Hilary. That
sounds like exactly the sort of thing she would say about her PTSD
condition and its status as a "hidden" disability in the eyes of most
people. I _DO_ understand that, but it is NOT a good reason to fail
to even raise the contract issue, if you DO have a viable contract
issue.
> > [W]e're dealing with a reactionary, anti-Civil-Rights Court.
>
> That's why I'm asking this question about plaintiffs ever winning at
> MSJ. I just read a site that says Iqbal has been cited more than 500
> times in less than two months.
That's a PLEADING issue, not SJ.
> It tends to make one a lot less certain
> that sixty years ago in Europe one would have not goose-stepped or
> collaborated or just sunk to one's knees in submission.
I have no idea how to respond to that until I figure out what you mean
- being cryptic again. Perhaps a lot of "good Germans" (and those of
other nationalities under the Nazi boot did too - French, Poles, etc.)
did go along with Nazi hatred and oppression, just out of inertia, or
to save their own skins. Not that those reasons JUSTIFY doing so,
IMO. But, a lot of others DIDN'T, and righteously resisted. I just
don't see what any of that has to do with the dilemma YOU are facing
now.
No one is asking you to join the oppressors, are they? And if you
are one of the OPPRESSED, you have 2 choices - no, really 3: (1) run
away, to someplace more favorable; (2) stay, and fight back with all
you've got, which requires you to do so in a SMART manner, aware of
the risks and withdrawing from confrontation when necessary to save
your resources for a better opportunity, then striking when your
opponents least expect it (see the new Daniel Craig movie "Defiance"
if you want a role model; or (3) do nothing, and get slaughtered.
Note that option (2) does NOT mean you attack, Rambo-style, against
overwhelming odds. Rather, it means you pick your battles, guerrilla-
style, and do what you can to harrass the enemy, while doing all you
need to do to stay alive yourself. Take note, though, that those
tactics work much better for the DEFENDER trying to stay alive against
overwhelming odds. As the plaintiff who filed suit, YOU are the
ATTACKER here, Charmin. Your OPPONENT is the one who can hide behind
trees, wearing camouflage, and take potshots at YOUR case while your
case has to goose-step along in predictable military drill formation
as required by the procedural rules.
I respectfully submit, though, that abandoning your Federal civil
rights case and re-filing a pure contract claim in State court, _IF_
that _REALLY_ is a viable cause of action, may be by far the better
part of valor for you. But I DON'T KNOW, since you haven't told us
ANYTHING about the merits of EITHER of those claims. It just seems
like a smarter way to go, if what you say is true. The Jewish
resistance fighters in the Daniel Craig movie DID NOT stay in the East
European villages where they were sitting ducks, and confront the Nazi
army head-on; rather, they fled for their lives, and went to live in
the deep forest, where they had a BETTER chance of survival and could
choose their OWN, better battleground, on which to fight back with
some chance of SUCCESS.
You need to think about that too. Right now, you're letting your
OPPONENT choose the time and circumstances of his guerrilla attack,
and you have already conceded the high ground on this prospective
battlefield to your opponent because of the highly favorable-to-the-
defense recent SCOTUS rulings as your case marches along in
lockstep. Your program has the players on the wrong side for YOU to
be able to rely on that kind of tactic.
Moving to the other side of the Pacific for another analogy, you don't
get anywhere by being a Kamikaze. Well, you may cause some damage to
your opponent, but you sure won't live to write home about it.
> One night in
> Bangkok makes a hard man humble, I guess you could say.
Scranton ain't Bangkok. Overall, I'd rather be in Scranton, if human
rights are your main concern.
> > So, if your goal is to GET MONEY for what happened to you, you're going about
> > it all the wrong way.
>
> Money has never been the only or major issue in this case.
You're NOT going to be the next Linda Brown (the little girl whose
parents won her right to attend non-segregated schooling in Topeka by
suing the Board of Ed.) unless there have been a lot of other Linda
Browns who had to suffer Jim Crow schools and tried and failed before
you. So if you're not in it for the money, WHAT then? Maybe you
WANT to be a Kamikaze and go out in a blaze of glory. But please,
please, do NOT do that. There are much better ways to prove your
worth as a human being and tell the defendant to go to hell, WHATEVER
your case is about.
> > OTOH if your goal is to be one of the people at the bottom of the
> > dogpile of crushed losers upon whom somebody _else_ can finally stand,
> > as you all try to climb up the greased flagpole of success and grab
> > the brass ring on top, you may be well on the way to playing that role
> > in history. I just don't think you'll be the one to eventually grab
> > the brass ring, because there are not enough crushed bodies under you
> > yet, for you to stand on.
>
> I'm very grateful you brought this up, because on the Celotex/Catrett
> thread, which has taken a turn toward Brown v. Board of Education and
> Thurgood Marshall's manoeuvering, I previously posted a (rightly)
> rejected post. Victims/plaintiffs in certain "cluster cases" deserve
> great sympathy and respect, but only an idiot would believe they got
> into court in, say, 1954, on their own merits. There are a lot of
> nooses still rotting because someone asked for a book for their boy or
> girl in 1897.
AGREED. And that's deplorable. But WHAT CAN YOU DO, TODAY, to
increase your chances of winning? THAT'S what YOU need to focus on,
not wringing your hands over past history OR what the future may hold
except in YOUR case.
> > As an aside, you seem to be assuming there is something "good" in and
> > of itself about getting to trial. A trial is simply a tool, ONE part
> > of the available legal procedure, and the purpose of that tool is to
> > RESOLVE DISPUTED FACT ISSUES. That's ALL a merit trial of the
> > evidence is for. If it turns out there are NO genuine FACTUAL
> > disputes between the parties - they agree on what happened, but the
> > parties just have different views on what outcome the law should
> > provide based on those facts - BOTH sides are better served by having
> > their disputed claims disposed of on purely LEGAL grounds, by the
> > judge.
>
> In fact, I assume that this particular case could if adjudicated
> attentively at this point be over and done with by a judge.
Not to shoot down your hopes, but a plaintiff RARELY gets SJ as a
matter of law in HIS favor, especially in a case where motive or
intent is at issue, even if all the parties agree about what
objectively happened - e.g., in Hilary's case, BOTH sides agree that
her lease got terminated, and she was then required to leave her HUD-
subsidized, for-handicapped-people-only apartment complex. The issue
in her case was WHY this happened, and whether defendant's actions in
that regard were justified or not. THAT kind of case IS NOT going to
result in SJ for plaintiff.
The most such a plaintiff can hope for, is that a judge will DENY her
opponent's SJ motion, to allow her case to move on to the NEXT stage,
to get ready for trial, where the defense will have yet another
opportunity to argue that plaintiff has failed to meet the burden of
persuasion and proof on her prima facie case as a matter of law and
ask for a directed verdict, i.e. judgment at the conclusion of
plaintiff's evidence.
> The
> exhausting part--and I'm sure this is as exhausting for an attorney as
> for a pro se, at least in a case the attorney has some motivation to
> really care about--is not knowing whether to anticipate a verdict as a
> matter of law or a trial.
Trust me, as a plaintiff you are NOT going to get a verdict in YOUR
favor as a matter of law. You need to survive EACH attempt by the
defense to throw your case out, and HOPE you can get to the jury - IF
in fact you have a case WORTH pursuing that far. Which only someone
OBJECTIVELY removed from the deep emotional involvement you seem to
have with your case as a pro se party, can tell you.
> Why get prepared and all geared up, and then
> settle? Being an attorney with integrity must be bone-numbingly tough.
Sorry, that's not how it works. Settlement _IS_ a win. Paul Newman
and "The Verdict" aside, what his broken-down-drunk character of a has-
been plaintiff lawyer did in that movie would surely have been
MALPRACTICE in just about every real-life case, since he had NO
FRIGGIN IDEA yet about the smoking-gun evidence of altered medical
records, and his own only expert had just been disqualified, so he had
NO real hope of success if he rejected the defendant's substantial
offer.
As the archdiocese's attorneys told him in that movie, "YOU WON.
Take the settlement." It was a damn-fool mistake for him to
unilaterally decide not to do so, even in hindsight after he on a much
larger verdict at trial. We lawyers don't gamble, unnecessarily, with
our clients' interests. Now, the CLIENT may reject all our good
arguments in favor of accepting a settlement and INSIST on going to
trial; in which case, we have no choice but to do our best, and we MAY
come out ahead of what was offered. More often than not, though,
statistics show that the defense is who comes out ahead of their
offer, if a case has to go to trial. Even if the results split
50-50, the transaction costs are the killer.
> > The goal of a litigator throughout is, or SHOULD be, to resolve the
> > particular dispute fairly and fully, but as ECONOMICALLY as possible
> > in terms of time and effort, not to make a "grandstand play" or go
> > down in history.
Which is why SETTLEMENT is the sensible option, WHENEVER a reasonable
offer is on the table. If our clients are being sensible, we only go
to trial if our opponents force our hand by NOT making a decent offer.
> > And the sensible litigator does not leave it all up
> > to one "Hail Mary" pass with one second left in the game, unless
> > that's the ONLY option he has - otherwise, it's best to go for the
> > EASY, and EARLY scores. Still, a win is a win, whether you do it by
> > slogging through the trenches, or by "shock and awe" - but frankly,
> > the long slog is usually a more reliable way to get there for
> > _plaintiffs_, while "shock and awe" sometimes works for defendants if
> > they can bomb a case out of existence on SJ.
>
> Understood.
I'm not so sure you do, in light of what you said immediately above
about how "integrity" demands you reject settlement, how "money is not
the issue," and how you must demand trial to send a message to the
defendant to deliver a blow against "some offenses [that] strike
against human identity", but I won't belabor the point.
I don't think I'm learning anything new by these exchanges, and I'm
afraid you aren't either. So, I may just sit back and read what
others have to say, for a bit. Good luck, and I mean that,
Cy Pres
<carmen...@yahoo.com> wrote:
>Why get prepared and all geared up, and then
>settle? Being an attorney with integrity must be bone-numbingly tough.
Because unless you present a credible threat of beating the other
side, they have no incentive to settle. If it is obvious you are not
geared up for battle and prepared to litigate, the other side will go
to trial and take you to the cleaners, instead of settling.
Settling is almost always preferable to litigation for both sides, and
it would show a *lack* of integrity not to settle when it is in the
best interests of the client.
Charmin
>
> Who did you ask to try to serve the summonses? � A private process
> server? � Federal marshals? � Or did you send them by certified mail,
> return receipt requested?
A federal marshal. Yesterday the clerk said that although the summons
still has not been served, the case is not in danger of being
dismissed for want of prosecution. Thank you for the reminder about
the time limit regarding summons.
>
> > Are these motions in opposition ever argued orally by pro se plaintiffs?
>
> Of course. �Either side can request a hearing on a motion, but in Fed
> Ct it is up to the judge whether he will grant one. � Except that in
> some districts, a local rule provides that the judge may not GRANT a
> dispositive motion (i.e. throw the case out of court on MTD or SJ) if
> the party he is planning to rule against has requested a hearing,
> without GIVING that party an oral hearing. � So, you're best off to
> REQUEST an oral hearing any time you might want one, or the judge
> COULD rule against you just on the papers.
Do you do this through PACER? This is a lame question that probably
could be answered by logging on, but I don't recall any drop-down menu
relating to hearings.
> Even if one or both sides have requested a hearing, the judge remains
> free to DENY a dispositive motion (which keeps your case alive to move
> on to the next step) or can rule on any other motion, without a
> hearing, unless the JUDGE feels that an oral hearing would help him
> decide a close issue. �The judge, not you, is the one calling the
> shots there.
Of course. I don't really know how to phrase this question. I'd like
to know how substantive an opposition to a motion to dismiss has to be
if the adverse party has filed a MERE MTD (without additional MSJ
documents). The distinction between effective briefs in support of an
opposition to a MTD and effective briefs in support of an opposition
to summary judgment is difficult for non-attorneys to make, I think,
because it *seems* that effective oppositions to MERE MTD are more
rote and rely on precedent almost exclusively. Is this an incorrect
impression? Would it be a very stupid thing to counter a mere MTD (not
a "combo") with a MSJ, pull-out-all-the-stops, this-is-the-entire-case
(in under 5000 words) opposition, *with* supporting documents?
> TWO, yes you CAN "educate" the judge on the law applicable to your
> case. � The judge is NOT going to hit the law books and do independent
> research to try to pick holes in whatever legal arguments your
> OPPONENT has made in his brief in support of his motion; that is YOUR
> job. [SNIP]�
> Only if the opponent's brief paints one story, and yours paints an
> entirely DIFFERENT story supported by contrary authority, will the
> judge have to dig down in the facts of your particular case, and hit
> the law books, and decide WHICH one of you is right on each issue, and
> maybe come to yet a _third_ conclusion about either the facts or the
> law that is different from what both you and your opponent
> presented. � He normally won't do that unless YOU FILE AN OPPOSITION
> to your opponent's motion.
Oh, of course. This is why I want to know if oppositions to MTD are
generally rote, citing precedent, and not dealing with the meat of a
case. In the case of a pro se, would it be generally regarded as
foolhardiness or a show of strength to request an oral hearing if
opponent moves to dismiss for failure to state a claim?
> Most solo practitioners avoid impossibly difficult cases that would
> totally suck up their time and prevent them from working on EASIER
> cases where they could actually earn a living, with less effort.
> Which is part of the winnowing process the adversary system counts on
> to ensure that only MERITORIOUS cases - meaning, not simply those with
> a technically viable cause of action, but only those which are WORTH
> "making a federal case out of it" in the colloquial sense - get
> brought to court. � Case-obsessed pro ses who lack the objective
> detachment from their case that a professional lawyer would have, skew
> that variable.
This is rather hard and even frightening for a pro se to read. You
begin by saying what's undeniable, that solo practitioners have to
make a living. Granted. But to make the conclusory leap that THAT is
the standard for "winnowing," and that, as a result of another's need
to "earn a living," a pro se should regard his case as
unmeritorious... Oh dear. "Case-obsessed" pro ses do not all lack
objective detachment. Certainly, they don't have the detachment of an
attorney, but not all pro ses (in fact, in this decade, possibly few
pro ses) are wild-eyed moon-tilters. Pro ses are often "winnowed" by
the adversary system simply because they can't afford an advocate. I
know this might be upsetting for attorneys to consider. At least it
would upset me if I were an attorney.
> But yes, you DO need to continue to work,
> diligently and "focusedly" towards gathering the factual and legal
> support you think you will need, to meet your opponent's ANTICIPATED
> arguments, the same way Captain Aubrey in Patrick O'Brian's seafaring
> adventure novels (or Horatio Hornblower in C.S. Forester's books)
> would carefully steer his warship to approach a strange vessel that
> may or may not be an enemy in disguise, not firing the first shot, but
> ordering the cannons to be loaded, opening the gun ports and running
> them out and aiming them, and having the crew standing by with lit
> matches in hand, "just in case". �If you have to start scrambling to
> get ready to counter-attack only AFTER your opponent's hostile
> intentions become apparent, it's probably TOO LATE to do much good -
> the battle will be over before you fire your first cannonball.
It seems that this might be the one area where a case-obsessed pro se
might have the upper hand, or at least a solid poker hand.
> Why does that matter to you? Why are you wasting your time on a purely
> academic question when I assume you already KNOW whatever the brief-
> length requirements are in YOUR federal district, and that you MUST
> comply with them? � This is another example of what I keep pointing
> out to you, your lack of FOCUS on the real issues you must deal with.
>
> Sure, it's an interesting subject to debate why some courts are more
> lenient than others to long-winded litigants. �But that DOESN'T MATTER
> one bit to YOUR outcome, now, does it? � So, if you are (as you say
> above) feeling "exhausted" and "overwhelmed" by the stuff you DO need
> to learn between now and whenever, and you have a hard time finding
> enough time and energy to do what you HAVE TO do, then YOU DON'T HAVE
> TIME to twiddle your thumbs and contemplate your navel over a purely
> academic point like this.
It's not thumb-twiddling. If the adverse party makes a combo motion,
in order to answer every allegation arguing for judgment as a matter
of law needs to be able to be adequately stated. This is difficult to
accomplish if you are given a word-limit. (And it also has to do with
the anticipatory counter-moves you described above.)
> Until then, FOCUS on what you NEED to know and do. � I'm not going to
> CONTRIBUTE to your distraction and over-whelmedness, by discussing
> irrelevancies with you.
Well, you're certainly under no obligation. But as with finding one's
self in a foreign country where one doesn't speak the language, one
often obsesses to commit to memory each and every word one can define.
> > I don't know for sure, but I imagine a
> > brief in opposition to a motion for summary judgment is longer than
> > one for a motion to dismiss.
>
> Not necessarily; your brief will be however long you need it to be, to
> make your points, within the limits imposed by the court's rules.
That's my exact point. It will be impossible to present an opposition
to a combo motion in the prescribed word-length, which is why I asked
about pro ses making oral arguments.
> Learn HOW to focus. �That will help relieve your anxiety AND help you
> do a better substantive job. �Your brief does NOT have to be in
> rhyming couplets. � it should NOT be cryptic and poetic. � It should
> be blunt, to the point, non-convoluted, non-evasive, and call a spade
> a spade. � AND, it should cite legal precedent that favors YOUR
> interpretation of what the plain facts should require the judge to do
> - not lengthy "string cites" of case after case saying the same thing,
> but an IN DEPTH analysis of the reasoning of at least ONE or a few
> CLOSELY ON POINT cases are best.
There actually are many often-cited cases that will go into this
opposition, only a few that rely on analogy--although it seems that in
civil rights law, analogy-borrowing is done more than in other areas
of law.
> If there are no cases or statutes exactly on point, that means you
> will have to reason by analogy and by reference to public policy, but
> that is NOT likely to get you very far - really, it means you didn't
> have much of a case IN THE FIRST PLACE, which you should have realized
> BEFORE filing suit.
I posted today about "hostile environments" as an apparently volatile
area of civil rights law. But there were other areas in which lots of
cases exactly on point were found.
> In that case, it's unlikely your defendant would move for early SJ on
> such a clearly dispositive affirmative-defense issue outside the
> pleadings, isn't it? �So, what are you worried about?
Ha ha. That's a good one. Pro ses who don't get secret messages from
Bill Clinton in their tin foil hats (the subject of a funny law review
article) generally are sane. Sane people who are not doctors probably
would not want to go into an operating room and pretend they are a
doctor. Sane people who are not lawyers generally don't relish the
prospect of entering a courtroom and pretending they are a lawyer.
Worry is a pro se's primary occupation for the duration of his/her
suit.
> Unless, of course, you're wrong, and there IS some clearly dispositive
> issue outside the pleadings just waiting to hit you over the head,
> which you can't see because you think it's just the sky you see above,
> rather than the giant alien mothership whose girth extends from
> horizon to horizon, waiting to fry you with death rays.
Speaking of tinfoil hats... No, if anything, there is a clearly
dispositive issue outside the pleadings for the plaintiff. (But of
course this is what a moony-eyed pro se would be expected to say;
hence, the need for constant worry, specifically in order not to
appear moony-eyed.)
> Not that I want to give you anything extra to worry about, there, but
> you SHOULD be questioning your assumptions and trying to get "outside"
> of yourself to view your facts. �Or, at least, you must TALK TO
> SOMEBODY other than yourself about the FACTS of your situation to get
> an outsider's opinion of whether you are missing anything obvious that
> you SHOULD be seeing in this picture. �If you don't want to do that
> here, AT LEAST get yourself a level-headed, common-sensical private
> confidant you can go do that with, and TELL him or her the whole tale,
> and ASK them to be raw and OBJECTIVE in their analysis, not just to
> say what they think will make you feel better because they are
> sensitive to your emotional fragility. �Then, LISTEN to what they are
> really telling you, about matters you need to be prepared to address,
> then FOCUS on how actually to do that.
That's why I posted what might seem a kindergarten level question on
"facts" versus "evidence" today. The most difficult things in the law
to understand are abstract concepts. (Yes, let me anticipate a DUH.)
The only good thing about this failure-to-serve (the summons) is that
the time is giving the plaintiff more of the ability to do the nearly-
impossible: argue against himself as a devil's advocate, since he has
no advocate, and since covering the four corners of the complaint is
something one really can't expect friends or family to commit to.
> Unless you are raising a cause of action that has a HEIGHTENED
> standard of proof for your prima facie case, such as applied to the
> public-figure-libel claim in _Anderson_ (where the plaintiff, as a
> matter of law, had to prove actual malice to a "clear and convincing"
> level, and the judge CORRECTLY ruled that evidence which could ALSO
> just show negligent fact-checking did not and legally COULD not arise
> to that level), the specifics of the _Anderson_ holding should mean
> nothing to you, or at least, mean nothing more than _Celotex_ does
> (which reached the same conclusion of lack-of-sufficient-admissible-
> evidence-to-survive-SJ on hearsay, rather than standard-of-proof,
> grounds)
I realize this. I also realize the clear-and-convincing standard is
like asking Are there more grains of sand on Jones Beach or Montauk.
> Did you ever stop to consider why NO attorney was willing to take your
> case, assuming you ASKED at least a few of them to do so? � If your
> case had REAL "merit," not only a slim technical chance of winning but
> a SOLID, STATISTICALLY SIGNIFICANT chance of winning SERIOUS remedy,
> sufficient to justify the COST to obtain it, don't you think attorneys
> would be lining up at your door, offering you their services, if you
> but asked? � Sorry, but IMO the reason most pro ses fare poorly, esp.
> in Federal court, is that their cases DO NOT have sufficient merit to
> interest a trained attorney in facing whatever hurdles must be
> overcome to win. �(And, even without knowing anything about your case
> at al except the little you have told us, it is obvious there are
> MAJOR hurdles, which you find "overwhelming" and hard to understand.
> That does not bode well for success.)
No, in the words of a few heavy-hitters who were honest enough to be
honest, merit took third place to 1) time-consumption, and 2) pay-off.
> Different people can have
> astoundingly similar cases
Yes. Certain of them, for example, can experience cyber-stalking for
reasons that boggle the mind, that last far past the time one would
have anticipated, and that bring the phrase "motiveless malignance"
back from college Shakespeare classes. To be cyber-stalked is (or so I
hear), particularly frightening when one 1) is, in Joan Osborne's
words, a stranger on a bus; and 2) has done nothing to merit finding
one's self the object of obsession.
> Okay. � So what? � If limitations have not run on that claim, why not
> pursue it too? � Or instead? � YOU are NOT bound to a particular
> course of action just because it is the one you originally chose, even
> when new facts come to your attention that suggest you ought to follow
> a different path; that's practically the DEFINITION of obsessive-
> compulsive behavior and being divorced from reality. � Be flexible,
> and be willing to CHANGE COURSE if the situation demands it. � That's
> what a sensible person does.
But that would require amending the pleadings. It seems as if that's
not possible now. As for doing something pendent in state court, for
reasons of above-mentioned exhaustion, that is not possible either,
and res judicata would apply once the federal court rules...something.
> I disagree, but so what? � Raise the (new) contract issue as an
> additional count in an AMENDED complaint you can file in your existing
> Federal court suit. � The worst that can happen is that it will be
> rejected, and you will have to struggle by with your existing Federal
> cause of action. �If you have TWO ways to prove liability, TWO bites
> of the apple available, why THROW AWAY one of them and obsess
> exclusively about the other? � That does not make sense.
More than one amended complaint has already been filed, before the
contractual evidence was discovered. It seems very logical to move the
court to allow another amended complaint, now that the contractual
evidence *has* been discovered. However, for a pro se, this risks the
ruling that yet another amended complaint has taxed the court's
patience beyond endurance; and then there's that awful With Prejudice
ruling.
> No one is asking you to join the oppressors, are they? � And if you
> are one of the OPPRESSED, you have 2 choices - no, really 3: (1) run
> away, to someplace more favorable; (2) stay, and fight back with all
> you've got, which requires you to do so in a SMART manner, aware of
> the risks and withdrawing from confrontation when necessary to save
> your resources for a better opportunity, then striking when your
> opponents least expect it (see the new Daniel Craig movie "Defiance"
> if you want a role model; or (3) do nothing, and get slaughtered.
Well, the plaintiff has definitely "done" #2, sacrificing a part of
this suit, which sacrifice almost killed him. But then he reread Iqbal
and other (earlier and post-) cases. Paris is worth a Mass.
> Note that option (2) does NOT mean you attack, Rambo-style, against
> overwhelming odds. � Rather, it means you pick your battles, guerrilla-
> style, and do what you can to harrass the enemy, while doing all you
> need to do to stay alive yourself. � Take note, though, that those
> tactics work much better for the DEFENDER trying to stay alive against
> overwhelming odds. �As the plaintiff who filed suit, YOU are the
> ATTACKER here, Charmin. � Your OPPONENT is the one who can hide behind
> trees, wearing camouflage, and take potshots at YOUR case while your
> case has to goose-step along in predictable military drill formation
> as required by the procedural rules.
True, but I think pro ses need to be reminded that simply because
they're sitting ducks or geese, no one has tied their webbed feet. Pro
ses have to be reminded to think like attorneys, which means they have
the right to attack back.
> The Jewish
> resistance fighters in the Daniel Craig movie DID NOT stay in the East
> European villages where they were sitting ducks, and confront the Nazi
> army head-on; rather, they fled for their lives, and went to live in
> the deep forest, where they had a BETTER chance of survival and could
> choose their OWN, better battleground, on which to fight back with
> some chance of SUCCESS.
Discretion sometimes is the better part, yes.
> You need to think about that too. �Right now, you're letting your
> OPPONENT choose the time and circumstances of his guerrilla attack,
> and you have already conceded the high ground on this prospective
> battlefield to your opponent because of the highly favorable-to-the-
> defense recent SCOTUS rulings as your case marches along in
> lockstep. � Your program has the players on the wrong side for YOU to
> be able to rely on that kind of tactic.
No, parts of the complaint dealing with recent (terrifying) SCOTUS
rulings were dropped.
> Not to shoot down your hopes, but a plaintiff RARELY gets SJ as a
> matter of law in HIS favor, especially in a case where motive or
> intent is at issue.... � The issue
> in her case was WHY this happened, and whether defendant's actions in
> that regard were justified or not. �THAT kind of case IS NOT going to
> result in SJ for plaintiff.
I know. On the other hand, the discovery of the contractual obligation
may add some clout to the original claim.
> Sorry, that's not how it works. � Settlement _IS_ a win. � Paul Newman
> and "The Verdict" aside, what his broken-down-drunk character of a has-
> been plaintiff lawyer did in that movie would surely have been
> MALPRACTICE in just about every real-life case, since he had NO
> FRIGGIN IDEA yet about the smoking-gun evidence of altered medical
> records, and his own only expert had just been disqualified, so he had
> NO real hope of success if he rejected the defendant's substantial
> offer.
Sure. Just to go off-topic for a moment, but The Verdict is the best
courtroom drama of all time, but not for the reason of his not
accepting the settlement. I have argued successfully in prior low-ball
settlement offers for parties dear to me to take the money (or remedy)
and run. I've done it every time and wouldn't do otherwise here.
> I don't think I'm learning anything new by these exchanges, and I'm
> afraid you aren't either. � So, I may just sit back and read what
> others have to say, for a bit. �Good luck, and I mean that,
Well, I didn't expect *you'd* be learning a darn thing. You're an
attorney.
Mike Jacobs
> On Aug 9, 2:54 pm, Mike Jacobs <mjacobs...@gmail.com> wrote:
> > > Are these motions in opposition ever argued orally by pro se plaintiffs?
>
> > Of course. Either side can request a hearing on a motion, but in Fed
> > Ct it is up to the judge whether he will grant one.
> Do you do this through PACER?
You generally request a hearing by a simple WRITTEN endorsement at the
bottom of, or below, or in the title of, a motion or opposition paper
you file on PACER, to wit: "Pltf [or deft, whichever you are] requests
a hearing on the issues raised by this Motion." Or, as a separately
captioned filing of its own, either attached to the motion, or
separately. Where and how you do it is a matter of personal style,
the important thing being, you need to request it in writing in a way
that is likely to bring it to the judge's attention, or else you can't
complain that you didn't get it.
> This is a lame question that probably
> could be answered by logging on, but I don't recall any drop-down menu
> relating to hearings.
Don't they have a drop-down item for REQUESTS?
> > Even if one or both sides have requested a hearing, the judge remains
> > free to DENY a dispositive motion (which keeps your case alive to move
> > on to the next step) or can rule on any other motion, without a
> > hearing, unless the JUDGE feels that an oral hearing would help him
<SNIP>
> Of course. I don't really know how to phrase this question. I'd like
> to know how substantive an opposition to a motion to dismiss has to be
> if the adverse party has filed a MERE MTD (without additional MSJ
> documents).
If the motion was based on the failure of your complaint to state an
actionable claim under substantive law, your opposition has to cite
substantive law (cases, statutes etc.) sufficient to show that the
facts you allege DO, if believed (as they must be, for purposes of a
MTD) amount to sufficient grounds for a judgment to be entered in your
favor on the theory you allege; IOW, that you have sufficiently stated
all the elements of your prima facie case.
> The distinction between effective briefs in support of an
> opposition to a MTD and effective briefs in support of an opposition
> to summary judgment is difficult for non-attorneys to make, I think,
> because it *seems* that effective oppositions to MERE MTD are more
> rote and rely on precedent almost exclusively. Is this an incorrect
> impression?
Yes, it's incorrect. The substantive law in both is pretty much the
same. The FACTS in each are treated differently. On a MTD, the
court assumes the truth of all the facts stated in the complaint (for
purposes of deciding that motion ONLY, obviously; this is not a
substitute for PROVING those contentions with evidence, later). OTOH,
on MSJ, the movant claims there is NO genuine dispute as to any
material fact, and the opponent's FIRST duty is to point out the
existence of, and show EVIDENCE, sufficient to RAISE, at least ONE
genuine issue of material fact to be submitted to the factfinder at
trial. If there is NO genuine fact issue, then it is appropriate for
the court to move on to the NEXT step of its analysis on a MSJ, i.e.
to determine if one or the other party is entitled to judgment as a
matter of law, based upon those now-undisputed facts.
> Would it be a very stupid thing to counter a mere MTD (not
> a "combo") with a MSJ, pull-out-all-the-stops, this-is-the-entire-case
> (in under 5000 words) opposition, *with* supporting documents?
If you are the plaintiff in a case where motive or intent or
credibility is an issue, you CANNOT effectively move for MSJ, as I
have told you (and our mutual friend, Hilary) MANY times already.
So, yes, this would be a stupid move, _IF_ your case has any of those
issues in it. You will NOT get SJ as a substitute for a full trial,
in a case which NEEDS a full merit trial to address that kind of
issue.
The ONLY thing a plaintiff wants to do in response to a MTD is to
SURVIVE, so your case can move on to the next stage, PERIOD. You
cannot shoot the whole ball of wax there. If you try, all you will
accomplish is to tip your hand to the other side, and make it that
much easier for them to prepare to address your contentions at trial.
> > TWO, yes you CAN "educate" the judge on the law applicable to your
> > case.
<SNIP>
> Oh, of course. This is why I want to know if oppositions to MTD are
> generally rote, citing precedent, and not dealing with the meat of a
> case.
If by "meat of the case" you mean the FACTS of your particular case,
the only facts that matter on MTD are the ones you have ALLEGED IN
YOUR COMPLAINT, which the judge will ASSUME to be true for purposes of
this analysis. Yes, the judge most certainly WILL look to see if
those facts sufficiently state a prima facie case under whatever legal
theory you are claiming entitles you to a remedy, in deciding a MTD.
> In the case of a pro se, would it be generally regarded as
> foolhardiness or a show of strength to request an oral hearing if
> opponent moves to dismiss for failure to state a claim?
Neither, necessarily; that DEPENDS. If you are a person who feels
you are better organized and more persuasive while speaking rather
than writing, perhaps you would do better at an oral hearing, so long
as you prepare well, and are organized and logical. You still need
to file a written opposition TOO, of course; you cannot simply request
a hearing and wait until then to make your arguments, since the other
side is entitled to know IN ADVANCE of the hearing, what your
arguments are going to be. OTOH if you are a person who is scared out
of your wits by public speaking, perhaps you had better hope the judge
can decide your issues just on the papers submitted and does NOT force
you to appear and justify your positions at an oral hearing. If you
are the latter kind of arguer, it would be quite foolish to actually
REQUEST a hearing.
> > Most solo practitioners avoid impossibly difficult cases that would
> > totally suck up their time and prevent them from working on EASIER
> > cases where they could actually earn a living, with less effort.
> > Which is part of the winnowing process the adversary system counts on
> > to ensure that only MERITORIOUS cases - meaning, not simply those with
> > a technically viable cause of action, but only those which are WORTH
> > "making a federal case out of it" in the colloquial sense - get
> > brought to court. Case-obsessed pro ses who lack the objective
> > detachment from their case that a professional lawyer would have, skew
> > that variable.
>
> This is rather hard and even frightening for a pro se to read. You
> begin by saying what's undeniable, that solo practitioners have to
> make a living. Granted. But to make the conclusory leap that THAT is
> the standard for "winnowing," and that, as a result of another's need
> to "earn a living," a pro se should regard his case as
> unmeritorious... Oh dear.
Don't get me wrong. "Rejected" cases that one lawyer turns down often
DO have merit, in a technical sense. And often, the rejected client
can shop around and find ANOTHER attorney, who looks at things a bit
differently, or who may feel he can handle it more efficiently, or who
is just more desperate for ANY chance to win a case OR who is a
trainee being given cases by his bosses to go play around with because
it doesn't MATTER much in the long run if he wins or loses and it will
give him good practical experience, and sometimes those cases DO
result in a win.
Or, if you are a person with a SMALL but CLEARLY meritorious case that
is NOT HARD TO PROVE (i.e. the required elements are not complex) but
which is simply too dinky to be worth a lawyer's time, then YES YOU
MAY be able to handle it successfully pro se. Some people also
DEFEND themselves successfully pro se too, even in complex cases (our
compadre Rocky a/k/a Roger who has posted on MLM frequently, never
fails to remind us that HE WON a case against 12 jurors who acquitted
him of a crime, 3 decades ago, after which he has been fruitlessly and
relentlessly pursuing a pro se malicious prosecution claim and telling
us about that too) because a successful defense often requires nothing
more than SHOWING UP (so you are not in default) and letting the
plaintiff's case fall apart of its own weight.
But, statistically, if you have been to SEVERAL lawyers and they have
ALL turned you down and you are not pursuing some SIMPLE-to-prove
claim (such as failure to pay on a note, or a fender-bender property
damage claim with clear liability and a written estimate of the
damages) and especially if even YOU feel you DON'T KNOW WHAT YOU ARE
DOING and what you HAVE TO do to prove up the kind of case you want to
bring, anyone who is objectively removed from the deep emotional
involvement in the case that most pro se plaintiffs must feel, would
probably conclude that such a pro se plaintiff has on average about as
much chance of winning such a case as he does of winning big bucks in
the lottery. Of course, you have a constitutional RIGHT to bring such
a case anyway. That doesn't mean it makes much SENSE to do so, by
any objective measure.
I AM NOT trying to discourage you from pursuing your case on your
own. Heck, I don't even have the faintest idea what your claim is
about. But, I do want you to know what you are up against, and not
be a wilfully blind Polyanna about it.
> "Case-obsessed" pro ses do not all lack
> objective detachment. Certainly, they don't have the detachment of an
> attorney, but not all pro ses (in fact, in this decade, possibly few
> pro ses) are wild-eyed moon-tilters. Pro ses are often "winnowed" by
> the adversary system simply because they can't afford an advocate.
Sorry, I disagree. In the USA, contingent fees in personal injury
cases, and fee-shifting statutes in civil rights cases, mean that
almost ANY person, indigent or rich or middle-class, CAN afford a top-
notch attorney to handle his or her case, _IF_ that case has
sufficient merit AND economic worth. People with smaller but easy-to-
prove cases often can pursue those successfully on their own, and if
you check the archives, you will see that I have often suggested to
posters here with those type of cases that they do just that.
But what we are talking about now are COMPLEX cases, of the type that
give even trained lawyers fits of conniption in trying to figure out
what to do, and where there may be problems or gaps in the available
proof that would be hard to fill, and where the amount of MONEY at
stake just ISN'T WORTH IT for the amount of time and money it would
COST to prove up such a case successfully. Where all those factors
come together to create, in effect, a "perfect storm" against the pro
se plaintiff, proceeding into the maw of the whirlwind may be
breathtakingly foolhardy, is all I'm saying.
Now, hindsight can be a wonderful thing. All the "pros" in the
science biz told the Wright Brothers their crazy idea for a man-
carrying powered kite would never work, and the US Olympic hockey team
could never beat the Russians. Once the giant-killer proves the
skeptics wrong, everybody's his friend. But one STILL needs to
evaluate how realistic it is to imagine oneself in that position, at
the OUTSET, and act accordingly, at risk of losing FAR MORE in terms
of time, money, and sanity, than one stands to gain, by pursuing a
plainly foredoomed quest. The person who is bent on pursuing relief
for a difficult-to-prove harm done to him, at great procedural cost,
would do well to consult in confidence with an OBJECTIVE outside
observer to give him some perspective on where he's coming from and
where he's likely to be going, is all I'm saying, NOT that he should
never go there AT ALL. If you're intent on walking down a twisty,
uneven staircase with no handrails, leading you into the fires of Hell
if you should happen to fall off, it's nice to know where the pitfalls
are, if you knowaddimean. Litigation = that staircase.
> I know this might be upsetting for attorneys to consider. At least it
> would upset me if I were an attorney.
What are you talking about? We're not upset that we have to turn
down difficult cases, and we are happy for our prospective clients
whom we have turned down if they DO find some way to achieve success
without our help. This is a PROFESSION, it's not something PERSONAL
for us.
> > But yes, you DO need to continue to work,
> > diligently and "focusedly" towards gathering the factual and legal
> > support you think you will need, to meet your opponent's ANTICIPATED
> > arguments,
<SNIP>
> It seems that this might be the one area where a case-obsessed pro se
> might have the upper hand, or at least a solid poker hand.
Only if you know enough about what the opponent MIGHT do so you can be
prepared for it, AND have the good judgment to focus your preparation
on the MOST LIKELY things he might do, since you CANNOT prepare fully
for EVERYTHING. Sometimes, like D-Day vs. the Nazis, even the best-
prepared forces can be taken by surprise.
<OP asked about MTD vs. MSJ response-brief length requirements that
vary from court to court>
> > Why does that matter to you? Why are you wasting your time on a purely
> > academic question when I assume you already KNOW whatever the brief-
> > length requirements are in YOUR federal district, and that you MUST
> > comply with them? This is another example of what I keep pointing
> > out to you, your lack of FOCUS on the real issues you must deal with.
<snip>
> > So, if you are (as you say
> > above) feeling "exhausted" and "overwhelmed" by the stuff you DO need
> > to learn between now and whenever, and you have a hard time finding
> > enough time and energy to do what you HAVE TO do, then YOU DON'T HAVE
> > TIME to twiddle your thumbs and contemplate your navel over a purely
> > academic point like this.
>
> It's not thumb-twiddling.
I hate to argue with you over irrelevancies, but YES it is. You
asked WHY some courts allow longer briefs than others. YOUR court
sets its OWN maximum brief length, and you KNOW what that rule is, and
you know that you need to COMPLY with it. IT IS IRRELEVANT to what
YOU have to do, to know whether the max brief-length requirements in
some other court are longer or shorter. That's like trying to decide
whether you need to bring an umbrella with you to court in Scranton,
because it's raining in Bangkok today.
> If the adverse party makes a combo motion,
> in order to answer every allegation arguing for judgment as a matter
> of law needs to be able to be adequately stated. This is difficult to
> accomplish if you are given a word-limit.
That doesn't address the issue we were discussing, which is why the
brief-length limits in OTHER courts should be of ANY concern to you AT
ALL. You have to comply with the requirements in YOUR court, period.
Yes, it's difficult. But meeting that difficulty is not something
that diddling over these irrelevancies will help you accomplish. It
will simply DISTRACT you, like loudly saying "LA LA LA LA LA" and
covering your ears when someone is trying to tell you something you do
not want to hear.
> (And it also has to do with
> the anticipatory counter-moves you described above.)
if you still can't see that discussing the brief-length requirements
of OTHER courts than your own is completely irrelevant to what you
have to do, you are figuratively placing your hands over your ears and
saying "LA LA LA LA..."
> > Until then, FOCUS on what you NEED to know and do. I'm not going to
> > CONTRIBUTE to your distraction and over-whelmedness, by discussing
> > irrelevancies with you.
>
> Well, you're certainly under no obligation. But as with finding one's
> self in a foreign country where one doesn't speak the language, one
> often obsesses to commit to memory each and every word one can define.
That's terrific. But learning to speak Spanish so you can order a
taco pollo con frijoles at a ristorante in Guadalajara is not going to
be facilitated by learning the apocryphal 329 different Eskimo words
for "seal blubber." Likewise, learning to get by and comply with the
local rules on brief length in the Middle District of Pennsylvania is
not going to be facilitated by committing to memory the Local Rules on
that subject of the Northern District of California and 60 or so other
Federal District Courts.
> > > I don't know for sure, but I imagine a
> > > brief in opposition to a motion for summary judgment is longer than
> > > one for a motion to dismiss.
>
> > Not necessarily; your brief will be however long you need it to be, to
> > make your points, within the limits imposed by the court's rules.
>
> That's my exact point.
That's NOT the point you were making, above, when you asked about why
there are differing brief length requirements in different courts.
> It will be impossible to present an opposition
> to a combo motion in the prescribed word-length, which is why I asked
> about pro ses making oral arguments.
Oral argument is not a substitute for a written brief. You will not
get oral argument unless and until you submit a brief on the subject,
and REQUEST oral hearing as an endorsement or attachment to your
brief.
If you TRULY feel you NEED more pages to make a cogent argument, you
can always file a motion to ASK for leave to exceed the brief length
requirements. Do so BEFORE the date on which your brief is due,
AFTER you have made every possible effort to pare your argument down
to acceptable length, and DO NOT simply turn in an overlength brief on
(or after) the due date and hope the judge doesn't notice.
> > Learn HOW to focus. That will help relieve your anxiety AND help you
> > do a better substantive job.
<snip pointers>
> There actually are many often-cited cases that will go into this
> opposition, only a few that rely on analogy--although it seems that in
> civil rights law, analogy-borrowing is done more than in other areas
> of law.
Okay. Still, whatever you plan to address now MAY have to CHANGE
later, to meet whatever arguments the defendant ACTUALLY raises, when
and if they finally DO file their motion.
> > If there are no cases or statutes exactly on point, that means you
> > will have to reason by analogy and by reference to public policy, but
> > that is NOT likely to get you very far - really, it means you didn't
> > have much of a case IN THE FIRST PLACE, which you should have realized
> > BEFORE filing suit.
>
> I posted today about "hostile environments" as an apparently volatile
> area of civil rights law.
I didn't respond because I don't know anything about that narrow area
of law and am not familiar with the case you mentioned.
> But there were other areas in which lots of
> cases exactly on point were found.
Great. Pick a few and discuss them in detail, don't just give
endless string cites.
> > In that case, it's unlikely your defendant would move for early SJ on
> > such a clearly dispositive affirmative-defense issue outside the
> > pleadings, isn't it? So, what are you worried about?
>
> Ha ha. That's a good one.
Okay, point taken.
> > Unless, of course, you're wrong, and there IS some clearly dispositive
> > issue outside the pleadings just waiting to hit you over the head,
> > which you can't see because you think it's just the sky you see above,
> > rather than the giant alien mothership whose girth extends from
> > horizon to horizon, waiting to fry you with death rays.
>
> Speaking of tinfoil hats... No, if anything, there is a clearly
> dispositive issue outside the pleadings for the plaintiff.
I highly doubt that. There almost never is, or else suit would not
have been necessary. Of course, you still have not told us what that
issue allegedly IS, so we'll have to take your word for it that you
have the rare, lottery-winning ticket.
> (But of
> course this is what a moony-eyed pro se would be expected to say;
> hence, the need for constant worry, specifically in order not to
> appear moony-eyed.)
Yeah. Got that.
> > Not that I want to give you anything extra to worry about, there, but
> > you SHOULD be questioning your assumptions and trying to get "outside"
> > of yourself to view your facts.
<SNIP>
> The only good thing about this failure-to-serve (the summons) is that
> the time is giving the plaintiff more of the ability to do the nearly-
> impossible: argue against himself as a devil's advocate, since he has
> no advocate, and since covering the four corners of the complaint is
> something one really can't expect friends or family to commit to.
You are not the best person to act as your own devil's advocate. If
you try to do so, you DOUBLY meet the adage of a "lawyer who has a
fool for a client." Or is that, "a fool who has his client for a
lawyer?" At least find SOMEONE else other than yourself, who is
willing to listen to your scenario and try to poke holes in it for
you, so you can patch them up, before the defendant gladly does that
for you with the judge watching.
<snip discussion of why Anderson case is not particularly pertinent>
> I realize this. I also realize the clear-and-convincing standard is
> like asking Are there more grains of sand on Jones Beach or Montauk.
None of those standards make any real difference to a typical jury, I
am convinced. But the point is, they allow the JUDGE to intervene and
TAKE AWAY the decision from the jury based on inability of a plaintiff
to meet the applicable standard of proof. These standards are, in
effect, there as LEGAL tools for the judge to use on MTD, MSJ, or a
motion for judgment at conclusion of the evidence, NOT to be argued
about and discussed by a lay jury.
BTW, it most certainly is NOT a moot or impossible exercise to
determine which beach has the largest volume of sand on it, if one
knows how much surface area each beach name is being applied to, and
how deep the sand layer is at each beach on average, and how big the
typical grain of sand is at each beach, all of which makes it quite
easy to calculate and extrapolate an answer statistically. One NEED
NOT sit there and count every grain of sand individually, any more
than one need count the number of molecules of water in a liter
individually in order to figure out how much molecular weight of
hydrogen and oxygen must be present there to make up a kilogram of
water (at standard temperature and pressure). That's high-school-
level chemistry stuff, even if it's a total mystery to most people.
And it is just as easy, really, for the JUDGE to determine whether a
plaintiff has failed to meet a clear-and-convincing standard
sufficient to get a fraud case or punitive-damages or public-figure-
defamation case to a jury, even if the method and result seem like
mumbo-jumbo to most lay people.
> > Did you ever stop to consider why NO attorney was willing to take your
> > case, assuming you ASKED at least a few of them to do so? If your
> > case had REAL "merit," not only a slim technical chance of winning but
> > a SOLID, STATISTICALLY SIGNIFICANT chance of winning SERIOUS remedy,
> > sufficient to justify the COST to obtain it, don't you think attorneys
> > would be lining up at your door, offering you their services,
<snip>
> No, in the words of a few heavy-hitters who were honest enough to be
> honest, merit took third place to 1) time-consumption, and 2) pay-off.
If you are defining "merit" as something _other_ than "pay off"
relative to "time consumed," you are using the word differently than
I. Have you heard the term, a "Pyrrhic victory?"
> > Different people can have
> > astoundingly similar cases
<snip cyber-stalking example>
<snip discussion of new contract issue>
> > Okay. So what? If limitations have not run on that claim, why not
> > pursue it too? Or instead? YOU are NOT bound to a particular
> > course of action just because it is the one you originally chose,
<snip>
> But that would require amending the pleadings. It seems as if that's
> not possible now.
Why? When did the deadline for amending your complaint pass in your
case?
Sorry, I was under the impression you had NOT EVEN SERVED the
defendant yet. There IS NO earlier stage than this, other than not
having filed at all yet. So, unless your amendment deadline is
BEFORE your original filing deadline, maybe you're mistaken that it's
too late? CHECK THE RULES. Don't make unwarranted assumptions.
And then act according to your best interests as your judgment best
sees it.
> As for doing something pendent in state court, for
> reasons of above-mentioned exhaustion, that is not possible either,
> and res judicata would apply once the federal court rules...something.
Only if you LET them rule. Are you better off in State court?
Sometimes an attorney DOES withdraw a case in one forum and re-file it
in another. DON'T JUMP TO UNWARRANTED CONCLUSIONS is all I'm
saying. Evaluate ALL your options, objectively and without
foreclosing any of them unnecessarily, THEN pick what to do.
> > I disagree, but so what? Raise the (new) contract issue as an
> > additional count in an AMENDED complaint you can file in your existing
> > Federal court suit.
<snip what might happen after that>
> More than one amended complaint has already been filed, before the
> contractual evidence was discovered. It seems very logical to move the
> court to allow another amended complaint, now that the contractual
> evidence *has* been discovered. However, for a pro se, this risks the
> ruling that yet another amended complaint has taxed the court's
> patience beyond endurance; and then there's that awful With Prejudice
> ruling.
SO WHAT? Are you going to sit back and NOT RAISE a valid issue
because you're afraid it might be disallowed?
How is having your contract claim dismissed "with prejudice" worse
than not raising it AT ALL until after limitations have run? "It
doesn't hurt to ask" - most of the time. Of course, if you are the
"Boy Who Cried Wolf" one too many times already, and the court is sick
and tired of your false alarms, you may have something there. Maybe
it WOULD hurt to ask. But you haven't told us any of these
particulars, so we DON'T KNOW. You're on your own.
> > No one is asking you to join the oppressors, are they? And if you
> > are one of the OPPRESSED, you have 2 choices - no, really 3: (1) run
> > away, to someplace more favorable; (2) stay, and fight back with all
> > you've got, which requires you to do so in a SMART manner,
<snip>
> > or (3) do nothing, and get slaughtered.
>
> Well, the plaintiff has definitely "done" #2, sacrificing a part of
> this suit, which sacrifice almost killed him. But then he reread Iqbal
> and other (earlier and post-) cases. Paris is worth a Mass.
Okay. Whatever that means (being cryptic again - if that's a literary
allusion, I missed it).
> > Note that option (2) does NOT mean you attack, Rambo-style, against
> > overwhelming odds. Rather, it means you pick your battles,
<snip>
> True, but I think pro ses need to be reminded that simply because
> they're sitting ducks or geese, no one has tied their webbed feet. Pro
> ses have to be reminded to think like attorneys, which means they have
> the right to attack back.
Absolutely. What have we been trying to tell you, here? By George,
I think he's getting it.
<snip & jump>
> > Not to shoot down your hopes, but a plaintiff RARELY gets SJ as a
> > matter of law in HIS favor, especially in a case where motive or
> > intent is at issue....
<snip>
> I know. On the other hand, the discovery of the contractual obligation
> may add some clout to the original claim.
Only if you RAISE IT. You said above you are afraid to do that. If
you don't make it an ISSUE in your case, it will be legally IRRELEVANT
and the judge will NOT let you bring out contractual evidence at
trial.
> > Sorry, that's not how it works. Settlement _IS_ a win.
<snip>
> Sure. Just to go off-topic for a moment, but The Verdict is the best
> courtroom drama of all time, but not for the reason of his not
> accepting the settlement. I have argued successfully in prior low-ball
> settlement offers for parties dear to me to take the money (or remedy)
> and run. I've done it every time and wouldn't do otherwise here.
Sir, if you really mean that you are advising people on how to handle
their law cases, and you are not a lawyer, I am going to have to stop
discussing these matters with you right now. I thought we went over
that before.
> > I don't think I'm learning anything new by these exchanges, and I'm
> > afraid you aren't either. So, I may just sit back and read what
> > others have to say, for a bit. Good luck, and I mean that,
>
> Well, I didn't expect *you'd* be learning a darn thing. You're an
> attorney.
Yeah, like we already know everything? That assumption only shows
how little YOU know about it.
I didn't mean that last bit to sound snide, but please don't forget
that we lawyers (and judges) are just human beings too. Sometimes
the first step toward greater knowledge and awareness is admitting how
little one knows. And, if we ever STOP learning and growing, we fall
inevitably behind the curve and lose the ability to carry out our
profession, not to mention failing to continue to fulfill our lives as
human beings. Hopefully that wasn't news to you, Hilary.