Skip to comments.Recent filing updates in HOLLISTER v SOETORO - Exposing sloppiness by Perkins Coie lawyers
Posted on 01/06/2010 9:53:00 AM PST by rxsid
"THE LACK OF ADVERSITY ARGUMENT IS NOT WELL TAKENAND NOT SUPPORTED BY THE AUTHORITY CITED
The first COUNTERSTATEMENT OF ISSUES PRESENTED in the Opposition is
1. Whether dismissal of Hollister's complaint was properunder Fed. R. Civ. P. 12(b)(6) because he failed to state a plausible interpleader claim with adverse claimants and a tangible stake.
We point out that the appellees filed no cross appeal so that they havepresented no such issue.
In his opinion of March 5, 2009, Judge Robertson found that he had jurisdiction because of the interpleader statute (App. 210). Since the statute requires diversity of rival claimants addressed in the filing of the interpleader this means that he found such adversity of claimants to exist.
In examining adversity of claims as an element of standing we would ask the Court to exercise great care and to be wary of authority cited by the appellees that does not truly apply. The case law authority cited by the appellees on this point is particularly in appropros. Their lead case is Indianapolis Colts v. Mayor & City Council of Balt., 733 F.2d 484, 488 (7 th Cir.1984) The facts of that case, however,are completely distinct from the facts of this case. Principally, there was no interpleader jurisdiction in that case because the City of Baltimore was trying to take over the Colts football team, which had left Baltimore for Indianapolis, by the use of eminent domain.
Even less apropos is the attempt by the appellees to compare the facts of this case to those of Bierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957). They cite this last case for the proposition that "Actually, what has been done in this suit has been to misuse interpleader, based on mere pretense of adverse claims to a fund, to obtain jurisdiction of controversies other than entitlement to that fund.." The actual facts of the Bierman case show that this is a highly misleading misrepresentation.
Nor is the argument of the appellees supported by the Supreme Court decision in Treinies v. Sunshine Mining Co., 308 U.S. 66, 72 (1939). (Opp. p. 14)That case involved an alleged conflict between two state court decisions in two different states, Washington and Idaho, as to the ownership in question. It was held that there was no conflict between the decisions because the Idaho decision had established ares judicataby considering the Washington decision and finding that it had been rendered without jurisdiction over the subject matter. This eliminated the possible conflicting claims that were alleged in the interpleader complaint.
Moreover, the appellees seek to do so by ignoring the rule attendant upon dismissal motions that the words of the complaint must be construed with inferences in favor of the plaintiff. That this is the standard the appellees themselves state and concede (Opp. p. 7) citing Barr v. Clinton, 370 F.3d 1196,1199 (D.C.Cir.2004) Yet they seek to have the court make inferences in disfavor of the plaintiff.
Read in its entirety, the complaint clearly sets out the facts that if as alleged the defendant Soetoro a/k/a Obama is not capable of giving a lawful order because his occupation of the office of the presidency is only de facto then the plaintiff, Colonel Hollister, must look to the defendant Biden as the one who is de jure the Commander-in-Chief from whom he must accept orders. This occurs by operation of the very Constitution whose violation by the defendant Soetoro a/k/a Obama is at issue.
THE SAME IS TRUE OF THE ARGUMENT THATTHERE IS NO COGNIZABLE STAKE.
Just as we have shown that the argument of the appellees that there is no adversity is not supported by the cases that the appellees have cited and is not well taken, we now show that the same is true of the argument that they advance that there is no cognizable stake under the federal interpleader statute that was alleged or shown here. As with the first argument that we have addressed, the defendants/appellees did not counter-appeal the finding of jurisdiction by the lower court that was necessarily implicit in the lower courts finding that it had jurisdiction because of the statute and thus this issue has not been presented to this Court.
In seeking to lead the Court into paying no attention to the clear meaning of the interpleader act in its use of the word obligation, the appellees rely heavily upon Murphy v. Trav. Ins. Co., 534 F.2d 1155, 1159 (5 th Cir.1976). In using the quote that they chose from the Murphy case (Opp. p. 11), the appellees select a quote which only deals with the language of the statute that they want the court to consider exclusively,without taking account of the use of the word obligation or of the duties that constitute that obligation here.
ARTICLE III STANDING APART FROM INTERPLEADER
Without explaining why it would be relevant, the appellees make an argument about standing under statutes other than interpleader. (Opp. p.20) They seem to be assuming that they can argue Article III lack of standing regardless of the prescription of the Interpleader Act.
This entire argument of the appellees about Article III standing requirements not being met by the plaintiff here is made without reference to the fact that in this instance Congress has expressly conferred standing by passage of the Interpleader Act.
THE FAILURE TO CONSIDER THE AMENDED COMPLAINT IS GROUNDS FOR REVERSAL
In an argument beginning on p. 17 the appellees first set out the accurate observation that the amended complaint filed by the plaintiff added a new and different cause of action. Then, having acknowledged that fact, they argue that the amended complaint was properly ignored and the case dismissed because the amended complaint added nothing to the original complaint. How an amended complaint, amended once as a matter of right before any responsive pleading is filed. can add a whole new cause of action and not add anything new they do not explain.
RULE 11 SANCTIONS AND BIAS
The Opposition assumes that the opinions below were all correct and that,therefore, the only issue with regard to sanctions is the type of sanction. This over looks the possibility of any error below. Since we have shown that there was error below, it is axiomatic that an award of sanctions of any sort was improper. In any case, the court below did not particularize its charges of violations of Rule 11as we pointed out in our brief is required. Nor did the court below conduct any inquiry into what the pre-filing inquiry was with regard to any of the three prongs of Rule 11 as required. Based on its looking into vetting, blogging and twittering on the Internet, the court below found that the complaint and the filings of the undersigned were frivolous. Thus there was no proper analysis to justify the selection of any sanction under Rule 11.
The thrust of the Opposition, with its misrepresentations, approval of bias and pejorative mischaracterization, is to make the Court feel that if it dares to take its oath to the Constitution as seriously as Colonel Hollister does, and apply the law, it will be doing something unthinkable. It is not an appeal to the Rule of Law.
John D. Hemenway "
You either have not read the brief or you do not understand Rule 12(b)(6). Rule 12(b)(6) is different from Rule 12(b)(1) in that it does go to the merits, as the Supreme Court has pointed out, and says that on the merits a claim is not sufficiently made out, oh lurking liberi.
I know that well. But the brief is still wrong in claiming the defendants had to cross-appeal.
Why don’t you actually read the brief. That’s not what it says. It only says that the defendnnts did not present the issue because they failed to cross appeal. It then says, and cites authority to support that all appellate courts may examine standing on their own motion and indeed are obliged to do so. When you misrepresent what the brief says it’s fairly easy to find your own failure to read what it actually says wrong. Of course it is true that the appellate court may consider standing but you have inaccurately described the brief as saying what it does not in fact say. You have then assailed your own mischaracterization of what it says.