18 votes

UPDATE: Richard Gilbert deals (another) devastating blow to delegate case!

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.

--------------COURT MINUTES--------------------

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!

====================END UPDATE===========================

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!


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Love it!

Your imagery is in the above comment is fantastic!

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So, did he refile today?

I know curiosity killed the delegates, but I'd like to know what happened.

Gilbert stuck to his guns.

I have read Gilbert's response and there is clearly a "claim" made on the second amended complaint. The Judge should rule on the merits, but no ruling on the merits means the delegates are unbound and the Judge just doesn't want to intervene and crush the RNC. Unless the Judge rules that the RNC can bind the delegates, they are unbound.

That is just not true

No ruling means no ruling - all issues including the issue of binding are not settled one way or the other by the no ruling because no claim was sufficiently proven to require the court rule one way or the other - you don't know the law.

Particularity, one more time

The judge ripped the original complaint to shreds, but tried very hard to be helpful. Among other things, he pointed out to RG that a plaintiff "must plead the circumstances  constituting  [the  alleged]  fraud, with  particularity,  including  the who,  what,  when,  where  and  how of  the  alleged  misconduct." And he made it clear that without this, the complaint would be dismissed with prejudice.

As you say G "stuck to his guns" in the sense that rather than doing what the judge said was necessary in order to avoid having the lawsuit dismissed, he filed an amended complaint that did not plead any who, what, where, when or how of any alleged misconduct on the part of any defendant. ZERO particularity. None. Dozens and dozens of defendants, and in spite of the judge's clear warning *not one* factual allegation of misconduct for a single one of them.

Now, apparently, what you think the judge should do is deny the motion to dismiss (in spite of GIlbert ignoring very explicit instructions), and rule on the merits of Gilbert's response simply because it's in the form of a "claim." Even though making a "claim" isn't what the judge said was necessary in order to avoid dismissal with prejudice.

You further argue that if the delegates are unbound if the judge dismisses the suit, or if the judge rules in favor of Gilbert, and the only way they're not unbound is if the judge rules in favor of the RNC. In other words, your defense of Gilberts here argues that he brought a lawsuit that *at best* affirms something that you believe is already settled in our favor, and for this it risks a decision that would turn something that is (you believe) in our favor into certain loss.

Not surprisingly, Gilberts says that it's not true that the delegates are unbound at present, which doesn't make his amended complaint consistent with what the judge said would be necessary for the lawsuit to go forward, but at least doesn't make it look as dumb as it would be to sue to unbind the delegates if the delegates are already unbound.

First of all, they are arguing on the Second Amended Complaint.

The Claim put forth by Gilbert is that the RNC is coercing the Delegates to be bound when they are not. He is asking the court to stop the coersion. The problem is that nothing in the RNC rules say they are bound so the Judge has a dilema on how to rule on something that is not there. Gilbert may not have proved his case for coersion since he has not put forth specifics on how the RNC is forcing the delegates to be bound. This issue is far from over, though. Even if the Judge dismisses the case, the issue of coercion can still be brought after the convention by either party after the delegates vote their conscience and either party disagrees on the outcome, legally.

The judge seems to disagree

You may think the judge has a dilemma in front of him, but he doesn't seem to see it that way. He called the first complaint "unintelligible," said that the second complaint "removed all factual pleadings" (the exact opposite of what the judge had said would need to be done to avoid dismissal with prejudice), and said that rendering an advisory opinion on the VRA was not something permissible for the court in these circumstances.

The judge went out of his way to explain what needed to be added in the way of factual pleadings for the amended complaint. Instead of following those instructions Gilbert submitted something unrelated that he'd written two months earlier, and he justified this with his belief that he was playing "three dimensional chess." In a tweet today he said that the reason he's losing might be that the judge is playing *four* dimensional chess. You can't make this stuff up. It would be hilarious if it weren't doing so much damage.

As bad as that is, it's right in line with what you'd expect after seeing all the stuff that zsh and the others dug up and unsuccessfully tried to warn people about. Too bad people shouted them down and worked so hard to get delegates to join the lawsuit without being fully informed, isn't it?

The problem is that nothing in the RNC rules say they are bound

Actually there's quite a bit in the RNC rules about binding delegates. Gilbert cited Rule 15 when he disagreed with the claim that the delegates were presently unbound.

No Apfel, if a case is dismissed with prejudice

Then those plaintiffs involved with this case, cannot, I repeat, cannot bring a lawsuit against the defendants named in the lawsuit w/r/t/ “binding”.
For the love of God, please do yourself a favor, if you are not going to research things on your own, then at least read all of the comments on this page.
Whatever you do, don't just keep talking out of that hole in the front of your head, with nothing other than that fantabulous imagination of yours, to back it up …


da, da vinci

There would be a different set of circumstances. So the claim could be brought.

Furthermore, Gilbert sought protection for the delegates from the Federal Court so they can vote their conscience without coersion from the RNC. But, even if the Judge doesn't rule on the merits, the level of scrutiny on the RNC is tremendous to keep their hands off the delegates.

You have a really funny thought process

Gilbert sought protection for the plaintiffs (via snack-serving US Marshals), but the Judge nixed that idea.
Next, the Judge will be dismissing the case (like Herr Dr. Gilbert himself, presumes), so no, the Judge will not be ruling on the case's merits, since a dismissal w/ prejudice means the Judge doesn't see any merits. And no, that would not be a different set of circumstances, should the plaintiffs decide to commit legal suicide by attempting to file a post-convention case against the RNC, regarding the party's binding rules.


Sometimes lack of curiosity is what kills the cat

I know curiosity killed the delegates, but I'd like to know what happened.

Actually you could say that in this case a lack of curiosity is what killed the dele-cats. There was plenty of evidence out there, easily found by anyone who cared to look. Red flags galore. Enough to make anyone who was even slightly inquisitive have some very serious misgivings about supporting the lawsuit, much less signing on as a plaintiff.

Some people who are just now waking up to how bad this thing is (some of them frantically trying to blame the judge for it) are the *same* people who were on the front lines of trying to squash any curiosity, the same ones who were encouraging delegates to sign on with the lawsuit without looking closely at any of the evidence that the way it was being done was very, very bad. This effort was greatly assisted by some strategic banning and deletion, of course.

But as to your question about refiling, I don't think there was any inclination to refile on the part of the L4RP but it's also my understanding that there was no option to refile. The judge allowed for exactly one amended complaint and that opportunity was used to file something *worse* than the first. Everything since then has been procedural formality on the way toward dismissal with prejudice, and dealing with the appeal-that-was-not-an-appeal.

The next big question is whether the plaintiffs will be forced to pay legal costs for the defendants, on the grounds that a lawsuit with zero facts alleging any specific wrongdoing by any defendant is by definition a frivolous lawsuit.

See comment


someone's playing with fire...

Was that a reply to me?

I'm not catching your point there, sorry.

In a nutshell

Yes, he filed a response. The response was basically him quoting what he thought was the pertinent parts of his Second Amended complaint. Nothing new of any substance was included in his response.

According to reports of tweets accredited to him, he himself expects the case to be dismissed on Friday.

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The Delegates are not bound

but it wont matter, the Jelly Doughnuts are stacked against us. Just take cover and dont get none on you...

"If ever time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin."
Samuel Adams

Unless I see a court order of

Unless I see a court order of unbinding the delegates, I won't believe they will be unbound. Let's face it, the opposition has been breaking rules left and right. I see little reason why they won't break this one.

If they were bound they wouldn't be having a vote.

Get out of their Matrix. The Delegates will vote their conscience, then let the RNC try to undue it.

No, I'm just being realistic

No, I'm just being realistic here. They will never allow it.

Still, it could be very advantageous to us if the delegates vote their conscience anyways. I mean, even the RNC can't throw 500+ delegates in jail without serious repercussions, right? And there's the possibility that Palins supporters may join in as well. Not sure how large their group is, though.

I only hope that if above gambit happens, where people are thrown in jail by the hordes, the MSM won't be able to spin the delegates as terrorists so easily.

Then they better get a court order,

because the Delegates are voting their conscience.

One thing I'm pretty sure

One thing I'm pretty sure they will do, is try to count the votes in a backroom. Or put in a rule, where the vote has to be given to the chairmen first, who will then automatically apply the bound rule and disregard votes for RP. This is don e to prevent the unbound rule from being applied. Heck, they may even lie about the vote in cases where delegates are not bound to vote for Romney.

If either of the above are done, they probably have preparations to squash dissent and throw people in jail if necessary. They will then use the MSM to paint the Paul delegates as kooks and crazies.

I think I've seen enhough of their actions that this will most likely be their gameplan. This is not to demoralize people, but to prepare people in the event they pull this on us, cause I'm almost certain they will.

This is their procedure.

The delegation chair in most of the states can cast votes for the bound delegates. The states set the binding rules, not the RNC.

No matter how many times the Rule 38 and the memo from Sheehan is posted, it will not change this fact.


"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."

I really hate to say I told you so, but....

"Alas! I believe in the virtue of birds. And it only takes a feather for me to die laughing."

Everyone now knows the Delegates are unbound,

the case is moot.

O boy....

...the delegates are not unbound, that is a half-baked theory based on misinterpretation of party rules.

I guess I'll have to say I told you so again after the convention. : /

"Alas! I believe in the virtue of birds. And it only takes a feather for me to die laughing."

The delegates are all unbound at the RNC convention

you just have not been paying close enough attention and didn't get the memo.

Exchange of letters between RNC attorney Jennifer Sheehan and
Nancy Lord Utah Republican Republican National Committeewoman
clarifying that delegates are not bound by State rules at the
RNC convention and free to vote for whoever they want to
This occurred in 2008 and a Romney "bound" delegate was allowed
to vote his conscience at the RNC.


Reality Check: All Republican Delegates Are "Free Agents" and Unbound


November 6th 2012 I voted for Dr.Ron Paul
"We must remember, elections are short-term efforts. Revolutions are long-term projects." ~ Ron Paul

What about this?


Having the delegates *believe* they are unbound, even if they legally are not, could make for some interesting fireworks. That could be fun to watch.

That article just says

the quote is attributable to a different RNC member. Who cares. Get out of their Matrix the Delegates are unbound.

Rule 38 states all Delegate can vote their conscience. The only issue is on the first vote is if they will be counted toward your total, that depends on Rule 40(b) five states. In either case it is NOT a vote for Romney. After the first round none of this matters, it is straight up voting your conscience and getting 1144.


I think in terms of the case for unbinding it does matter whether the key sentence was the legal opinion of an RNC lawyer in response to a direct question about delegate binding, or just someone else tacking on a personal opinion.

But I also hope that every Ron Paul delegate goes into the convention believing unshakably that they are unbound and determined to vote for Ron Paul. I don't think it will accomplish anything other than creating some fireworks, but those fireworks will accomplish more for the liberty movement than getting some empty words into the platform and getting Rand a prime-time speaking slot with a Romney-approved speech.


could waste time trying to dissect it but the fact is that a "bound" delegate was allowed to vote for someone else in 2008 at the RNC. That is in probably most if not all the delegates minds at this time. They cannot undo that.

November 6th 2012 I voted for Dr.Ron Paul
"We must remember, elections are short-term efforts. Revolutions are long-term projects." ~ Ron Paul