Tuesday, March 9, 2010

Shotgun Tjoflat!



You know how in federal court you always incorporate all your prior counts into your next count, just to be safe?

That way if you miss an allegation on page 47, count XVI, you can always refer the judge to earlier allegation in a different count 34 pages back.

Works like a charm!

(What, you guys don't do that?)

Neither does Judge Tjoflat:
The amended complaint contains 151 paragraphs and ten counts. Seventy-three paragraphs precede Count I.....
Uh oh.
Count I incorporates paragraphs one through seventy-three, and each of the nine succeeding counts incorporates all preceding counts, such that Count X amounts to an amalgamation of all counts of the complaint.
This is not good. I smell a rant coming on....
The amended complaint is a typical shotgun pleading. This court has condemned such pleadings in a series of cases stretching back at least as far as Pelletier v. Zweifel, 921 F.2d 1465, 1517–18 (11th Cir. 1991) (describing such pleadings as “replete with factual allegations that could not possibly be material to any of the causes of action they assert”), and we do so once more here. Shotgun pleadings impede the administration of the district courts’ civil dockets in countless ways. The district court, faced with a crowded docket and “whose time is constrained by the press of other business, is unable to squeeze the case down to its essentials.” Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1333 (11th Cir. 1998). It is therefore left to this court to sort out on appeal the meritorious issues from the unmeritorious ones, resulting in “a massive waste of judicial and private resources; moreover, ‘the litigants suffer, and society loses confidence in the court[s’] ability to administer justice.’” Id. (quoting Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir. 1997)) (alteration in Johnson Enters.).
Hmm, I wonder how the judge is going to rule?

Seriously, since it's been a while since I've seen a complaint in which each count incorporates the last, I wanted to confirm that the amended complaint incorporates all prior paragraphs into each count, and actually it does not.

The complaint is not a work of art by any stretch, but to be fair each count seems to incorporate all the precatory paragraphs 1 through 73 that precede the first count beginning on paragraph 74, but not each successive count.

Thus, count X (which begins on paragraph 150), incorporates paragraphs 1 through 73 but no other paragraphs.

I still agree with the Judge's basic point, which if I'm not mistaken amounts to:
You can't make a record if you ain't got nothin' to say
You can't make a record if you ain't got nothin' to say
You can't play music if you don't know nothin' to play

8 comments:

  1. more federal court procedural bullshit

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  2. 2:46 True Dat. More whining and crying from da feds. Warning to thos that want justice go to state court. Federal Court: Be Afraid. Be very afraid.

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  3. And now we have the Chief Justice going booey hoo hoo wah wah about politics and the Article Three judges. Man up dude.

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  4. Actually, 2:46 and 9:34, Trawick's Florida Practice and Procedure--a state-court treatise--says it's improper to incorporate by reference all allegations of one count into another. Does this excuse "whining and crying"? Not necessarily. But it's not just a federal-court thing.

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  5. fake Glenn GreenwaldMarch 10, 2010 at 12:13 PM

    It's not actually a unique event of oppression or suffering to have to sit and listen to a speech where someone criticizes you and you can't respond that very moment (but are able, as Roberts just proved, to respond freely afterward). Even in the State of the Union Address, it's completely customary for the President to criticize the Congress or the opposition party right to their faces, while members of his party stand and cheer vocally, and -- as the reaction to Joe Wilson's outburst demonstrated -- "decorum" dictates that the targets of the criticism sit silently and not respond until later, once the speech is done. That's how speeches work. Only Supreme Court Justices would depict their being subjected to such a mundane process as an act of grave unfairness (and, of course, Roberts' comrade, Sam Alito, could not even bring himself to abide by that decorum).

    What makes Roberts' petty, self-absorbed grievance all the more striking is that this is what judges do all the time. It's the essence of the judicial branch. Federal judges are basically absolute tyrants who rule over their courtroom and those in it with virtually no restraints. They can and do scold, criticize, berate, mock, humiliate and threaten anyone who appears before their little fiefdoms -- parties, defendants, lawyers, witnesses, audience members -- and not merely "decorum," but the force of law (in the form of contempt citations or other penalties), compels the target to sit silently and not respond. In fact, lawyers can be, and have been, punished just for publicly criticizing a judge.

    As is true for any large group of people, the range of behavior varies greatly, from unfailingly polite judges to pathologically thuggish ones, but the core dynamic of the judicial process is that judges wield absolute power and everyone else is essentially captive to their whims. That is why the overriding attribute of those who interact with them is one of extreme, royalty-like deference, both formally (standing when they enter, addressing them as "Your Honor," having them sit always on an elevated platform, decked in their flowing, magisterial robes) as well as informally (watch any court proceeding and see lawyers petrified of somehow offending the judge). To say that, for many of them, this endless deference affects their expectations and sense of entitlements is to understate the case, as Roberts just proved.

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  6. Trawick don't know Dick

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