UPDATE: Richard Gilbert deals (another) devastating blow to delegate case!Submitted by Britons4Paul on Tue, 08/21/2012 - 05:21
It's worse than I suspected. The judge upon receiving the response to the ORDER TO SHOW CAUSE, states that the Second Amended Complaint is worse than the First Amended Complaint. It lacks any factual pleas and reads more like a press release than a legal complaint with any standing.
As a result, he has given Gilbert a further 24 hours to again SHOW CAUSE why the complaint should not be dismissed altogether, otherwise it will be dismissed.
Gilbert seems to be asking the court to render an opinion on the Voting Rights Act, which the court has no power to do.
PROCEEDINGS: (IN CHAMBERS): ORDER TO SHOW CAUSE WHY THIS
CASE SHOULD NOT BE DISMISSED FOR FAILURE TO STATE A CLAIM AND
DISCHARGING PRIOR ORDER TO SHOW CAUSE
This Court previously ordered Plaintiffs to show cause why this Court should not construe Plaintiffs’ notice of appeal as a desire to stand upon the First Amended Complaint and treat the August 7, 2012, Order as a final judgment divesting this Court of jurisdiction.
See August 20, 2012, Order (Dkt. 43). As the Court explained, Plaintiffs “cannot pursue an appeal from the Court’s order and simultaneously treat this matter as ongoing by filing [a] second amended complaint.” Id. (quoting Ingram v. Warden, CIV.A. 10-4151 NLH, 2011 WL 318300, *1 (D.N.J. Jan. 24, 2011)).
In their Response, Plaintiffs state that they did not intend to file an appeal and, instead, they wish to continue to litigate with the Second Amended Complaint as the operative pleading.
See Response (Dkt. 44).
Thus, the Court DISCHARGES the August 20, 2012, Order to Show Cause and will treat the Second Amended Complaint as the operative pleading.
Because Plaintiffs maintain that they have not filed an appeal, the Court retains jurisdiction to rule on Plaintiffs’ Second Ex Parte Application (Dkt. 37).
The Court DENIES the Ex Parte Application.
However, in the spirit of Plaintiffs’ Ex Parte Application, this Court will seek to expedite the resolution of this case. “Something labeled a complaint but written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity
as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint.” McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996) (upholding dismissal for “failure to say which wrongs were committed by which defendants”). Here, the Court dismissed Plaintiffs’ First Amended Complaint because the vast majority of the pleadings were unintelligible and Plaintiffs’ sole intelligible allegations failed to state a claim. In Plaintiffs’ Second Amended Complaint, they appear to have removed all
factual pleadings and instead request an impermissible advisory opinion from this Court about the scope of the Voting Rights Act. U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993) (“[A] federal court [lacks] the power to render advisory opinions.”).
Thus, the Court ORDERS Plaintiffs to SHOW CAUSE why this case should not be dismissed with prejudice for failure to comply with Federal Rule of Civil Procedure 8, failure to state a claim under Rule 12(b)(6), or for violation of a court order pursuant to Rule 41(b). See Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (explaining that a complaint that is so confusing that its “true substance, if any, is well disguised” may be dismissed sua sponte for failure to satisfy Rule 8); Omar v. Sea- Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may dismiss a claim sua sponte under Fed.R.Civ.P. 12(b)(6).”); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir.1981) (“A complaint which fails to comply with [Rule 8] may be dismissed with prejudice[.]”).
Plaintiffs shall electronically file a Response on or before August 23, 2012. If Plaintiffs fail to do so, this Court shall dismiss with prejudice. In addition, if Defendants wish to file a Reply to Plaintiffs’ Response, they must do so on or before 1 p.m. on
August 24, 2012.
--------------------------END COURT MINUTES--------------------
Words escape me!
This lawyer really should have brushed up on procedural rules. It appears that he filed both an amended complaint and an appeal to the previous ruling at the same time!
Judges generally are displeased when they see blatant attempts to subvert or bypass the rules (not to mention it's appearance of hypocrisy in this particular case).
As a result Gilbert, et al have been given 24 hours to show cause or the court will rule on the previous complaint WITH PREJUDICE, which means any chance of ever arguing this case before a federal court is nil!