Judge R. David Proctor and
his wife, Teresa
(From Facebook)
Let's start by reviewing "Act 1." Proctor reveals himself to be a con man right off the bat, and he continues in that vein throughout. For now, we will focus on two major issues as the curtain rises on our "diabolical play."
A corrupt judge cannot get even the basics right
Reciting the standard of review on a Motion to Dismiss is the first order of business, and Proctor gets it wrong -- and continues to get it wrong on almost every page of his 45-page memorandum opinion. (Proctor's opinion and our Motion to Alter are embedded at the end of this post.)
Proctor cites the two U.S. Supreme Court (SCOTUS) cases -- Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal (known, jointly, as "Twombly and Iqbal") -- that have caused mass confusion in federal courts. At their core, Twombly and Iqbal require a complaint to "state a claim to relief that is plausible on its face." Plaintiffs now must “nudge their claims across the line from conceivable to plausible,”
That's fine and dandy, but no one seems to know what it means, least of all Judge R. David Proctor. How does something go from conceivable to plausible? Most people of average to high intelligence would shrug their shoulders. Many judges, like Proctor, just wing it. If they are conservative and favor defendants (such as corporations, institutions, moneyed interests), they are likely to use Twombly/Iqbal as an excuse to kick out complaints that likely have merit. If they are liberals, they probably ignore Twombly/Iqbal.
Either way, the public probably is left with the impression that judges don't have a clue what they are doing. And the public would be right. If you skim the 45 pages of Proctor's opinion, you will find repeated use of words such as "conclusory" and "formulaic." That is the language of Twombly/Iqbal -- many people have no idea what those words mean either -- and the law does not make it clear.
It is clear that many observers -- from law-review authors and editors to lawmakers, even judges -- want to get out of this mess. Several measures have been introduced in Congress to overturn Twombly/Iqbal. But with conservatives in the majority, and their corporate backers pushing for easy dismissal of valid lawsuits, nothing has gained traction yet.
In a rare show of forward thinking, courts are moving away from Twombly/Iqbal on their own. The Eleventh Circuit Court of Appeals -- which covers Alabama, Georgia, and Florida, and governs our case -- has interpreted Iqbal to mean that a "heightened pleading standard" no longer exists. From a case styled Randall v. Scott, 610 F. 3d 701 (11th Cir., 2010):
We conclude that the district court erred in applying a heightened pleading standard to Randall's complaint. After Iqbal it is clear that there is no "heightened pleading standard" as it relates to cases governed by Rule 8(a)(2), including civil rights complaints.
First, ours is a civil-rights case. Second, Rule 8 of the Federal Rules of Civil Procedure (FRCP) has determined the bar that plaintiffs must clear to survive a Motion to Dismiss -- and it has applied since the federal rules were adopted in 1938. Rule 8 holds that a plaintiff must provide:
"a short and plain statement of the claim showing that the pleader is entitled to relief."
Our complaint easily meets the Rule 8 standard, and Proctor acknowledges, on page 7 of his opinion, that Rule 8 governs the case. He also acknowledges the 11th Circuit's finding in Randall. If anything, our complaint provides too many factual allegations and details.
Even SCOTUS is moving away from Twombly/Iqbal, and it did so in a Deep South case, originating in Mississippi. From a case styled Johnson v. City of Shelby, 135 S. Ct. 346 (2014):
We summarily reverse. Federal pleading rules call for a short and plain statement of the claim showing that the pleader is entitled to relief, Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted. . . . [The rules] "are designed to discourage battles over mere form of statement. . . . Rule 8(a)(2) indicates that a basic objective of the rules is to avoid civil cases turning on "technicalities."
SCOTUS gets even more emphatic in Johnson:
Petitioners stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off dismissal for want of an adequate statement of their claim.
No one who reads our complaint can seriously claim we did not inform defendants of the factual basis for our lawsuit, and in the words of the nation's highest court, we "were required to do no more to stave off dismissal."
Johnson did not specifically overturn Twombly/Iqbal, but it clearly rejected the pleading standard set out in those two cases. And we are talking about a U.S. Supreme Court ruling here.
Bottom line: Proctor got the pleading standard wrong, both at the Eleventh Circuit level and at the national level, via SCOTUS. You can't get much more wrong than that.
Proctor ignores a simple standard that he took an oath to uphold
A simple rule in reviewing a Motion to Dismiss -- the equivalent of "three strikes and you're out" in baseball -- is this:
Pursuant to Federal Rule of Civil Procedure 12(b)(6), all factual allegations are viewed in the light most favorable to Plaintiff, the nonmoving party.
We are the nonmoving party here. The Motions to Dismiss were filed by defendants. Proctor must, by law, view factual allegations in a light most favorable to us. He fails to follow this straightforward and longstanding principle over and over.
We will point out examples in upcoming posts. But for now, we've established that Proctor acts corruptly in the early stages of his opinion. And things don't get any better as they move along.
(To be continued)
Garrison-strange (EF) Memo Opinion by Roger Shuler on Scribd
Garrison-strange (EF), Rule 59 by Roger Shuler on Scribd