Nye Frank's List: Politics, Victims of Crime Riverside County

• Even if I were inclined to accept the Court's anachronistic dichotomy [between "factual allegations" and "legal conclusions"] and ignore the complaint's actual allegations, I would dispute the Court's suggestion that any inference of agreement from petitioners' parallel conduct is “implausible.”
• 25] In Leatherman v. Tarrant County Narcotics and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), plaintiffs sued under 42 U.S.C.A. § 1983, claiming that local law enforcement officers had violated their constitutional rights. Because they were suing a county and two municipal corporations that employed the officers who took the actions leading to the suit, prevailing law required that they prove that the incidents resulted from official policy, custom, or practice. But plaintiffs did not allege that there had been multiple incidents of the sort of which they complained, undermining their claim that there was such a policy or practice. The Fifth Circuit upheld dismissal under its "heightened pleading standard" for such claims.
• Perhaps if Rules 8 and 9 were rewritten today, claims against municipalities under § 1983 might be subjected to the added specificity requirement of Rule 9(b). But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation. In the absence of such an amendment, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later."

  • rule we have to do

• Note that 12(g) says any motion under this rule, not just 12(b). Therefore, courts have found that filing a 12(e) motion triggers the consolidation, but only as to what was then available. Clark v. Associates Commercial, 149 FRD 629 (Dist. Kansas 1993).     

   

   

     

   

   

  Objectivity of Standard. Counsel’s mistake is not an excuse. Carter v. American Bus Lines, Inc.,  22 FRD 323 (1958).

   

   

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  Answer and Counterclaim.
   

   

  
    The answer and counterclaim are usually a single document or pleading, but they are treated differently under certain circumstances.

   

   

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  For amendments that attempt to raise 12(b) defenses, the pleading will be treated as an answer, thus falling under the 20-day amendment as a matter of course language of Rule 15(a)(1)(B), rather than the language of "at any time before a responsive is filed" found in Rule 15(a)(1)(A). See Williams v. Jones, 11 F3d 247 (1st Cir. 1993), n. 4.   Chase v. Pan Pacific Broadcasting, 750 F.2d 131, 133 (DC Cir. 1984) (case in which defendant filed an answer including a counterclaim; sixteen months after that, defendant sought to file a motion to dismiss for lack of personal jurisdiction. This, the court held, violated Rule 12(h)(1), amendment to the answer-counterclaim to raise 12(h)(1) defense had to be filed within 20-days of the filing of the original answer-counterclaim.

   

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  7. Failure to Answer: Default, Shepard Claims v. William Darrah & Associates, FRCP 4(e), 12(a)(1)(A), 55, 173-80

   

  SHEPARD CLAIMS SERVICE, INC. v. WILLIAM DARRAH & ASSOCIATES United States Court of Appeals, Sixth Circuit, 1986. CB-173

   

  extension to run 45 days in addition to the normal period of 30 days under Rule 4(e). CB-173. [No one is really sure where the 30 day period comes from. However, it COULD be that the reference is to the adoption of state rules by Rule 4(1)(1), and, presumably, that the state Rule allowed for 30 days to respond rather than the 20-day period of FRCP 12(a)(1)(A).]

   

  the district court found that defendant's attorney engaged in culpable conduct when he permitted his secretary to make arrangements for the extension and then failed to review the secretary's letter upon returning from vacation. CB-174.

   

  . . . we concluded that three factors determine the outcome of [a Rule 55] motion:

   

  1. Whether the plaintiff will be prejudiced;

   

  2. Whether the defendant has a meritorious defense; and 3. Whether culpable conduct of the defendant led to the default. CB-174

   

  The present case differs from United Coin in at least one material respect. In United Coin, a default judgment was entered, whereas this interlocutory appeal was taken before entry of judgment. If the only issue relates to entry of default, Rule 55(c), Fed.R.Civ.P., provides the standard--"good cause shown." After entry of a default judgment, the court may set the judgment aside "in accordance with Rule 60(b)," which lists several grounds for relief from judgment. CB-174-75.

   

  The sole reference to negligence in the United Coin opinion is contained in a discussion of the standards applicable to a Rule 60(b) motion, under which "excusable neglect" is a ground for relief. CB-175

   

  Rule 55(c) leaves to the discretion of the trial judge the decision whether to set aside an entry of default. However, a strong preference for trials on the merits in federal courts has led to the adoption of a somewhat modified standard of review where defaults are involved.

   

  In practice a somewhat more lenient standard is applied to Rule 55(c) motions where there has only been an entry of default than to Rule 60(b) motions where judgment has been entered.

   

  However, we must consider the fact that the plaintiff suffered no [unfair] prejudice by reason of the tardy pleadings and the defendant did present a meritorious defense in its answer. These findings of the district court are clearly supported by the record. CB-175-76.

   

  The conduct of Darrah's counsel, Mark Shreve, was careless and inexcusable. Nevertheless, it is not necessary that conduct be excusable to qualify for relief under the "good cause" standard of Rule 55(c). CB-176.

   

  To be treated as culpable, the conduct of a defendant must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of its conduct on those proceedings.

   

  A default judgment deprives the client of his day in court, and should not be used as a vehicle for disciplining attorneys.

   

  Our disposition of the case does not preclude the district court from assessing or determining some appropriate penalty or sanction against the defendant or his counsel for the delay occasioned by the careless and inexcusable conduct of defendant's counsel herein discussed. CB-177.

   

  NOTES:

   

  See the excellent example of what "impertinent or scandalous" matter might be that is cited in Note 3.

   

  Pay particular attention to Note 4. When equitable relief is sought, you have to prove all the necessary elements. Remember the listing at page 85 of the casebook.

2 more annotations...

• Brian Floyd and Rod Pacheco in Homicide of Nye Frank cover up. Audio and sheriff video show very clearly the corruption and in the connection to Probate courts. But that is a group that the Judge in Riverside County told Lee Frank I doubt if you can find a attorney, doubt if you can afford a attorney, and if you pursue this can lose everything including your house. Then the Supervisors, Coroner, APS, Prosecutor, D Victim Advocates, Chief DA Mike Rushton promoted to
  
  made a false statement of fact into court. We were prevented from filing a Lemine by the clerk but was able to get internal affairs misconduct department to serve the County Council directly. Rod Pacheco claimed privacy in a whistle blower case. Elder victims are a easy target when the DA does not give crime case numbers to the crime in a abuse of his position. This is what DA Nefong got removed for not showing all evidence. This case is also one in that FBI rules to close cases and seal them rules violated. Hold officials accountable and the newspapers to report real news. "These are not the masterminds," District Attorney Rod Pacheco said Tuesday in a phone interview. "These are the folks who helped the masterminds."
  http://www.pe.com/localnews/rivcounty/stories/PE_News_Local_S_websj.2219fc8.html - Nye Frank on 2009-12-24