Appellate Law & Practice

This blog is devoted to appellate law and will provide case summaries and links to articles on appellate advocacy. Please send your news and views to Appellate [at] gmail [dot] com. We also welcome new contributors. Email us if you are interested.

Thursday, November 11, 2004

CA1 (10.11.04)

When District Courts Dismiss: What To Do When Someone Attaches A Bunch Of Stuff To A Complaint.


Since I am now covering the First Circuit as well as appeals from the Tax Court, and today we honor veterans, I figure that I will start with yesterday.


Awhile back, some folks on Greedy Clerks were talking about the practice of some courts of appeal issuing very terse orders affirming the District Courts. One District Court clerk was heard to sarcastically remark, “As a district court clerk, I'd like to see the circuit courts go a step further and start grouping together 30 or 40 appeals and issue a single opinion saying "these are all affirmed- nice job district courts. You guys rule." .

Now, although there does not seem to be too much control over the brevity of opinions issued by Courts of Appeal, from time to time Courts of Appeal have lectured District Courts on issuing all-too-brief opinions that are “…terse and uninformative order[s]dismissing … [a] nine-count civil complaint for failure to state a claim upon which relief might be granted.” Rodi v. Southern New England School of Law, No. 03-2502. This case, represented one of those times.

Since most of the readers of this blog are quite happy with the law schools they went to (unless they talk to someone who is or was a student at a higher-ranked law school), the facts of this case are downright alien. The plaintiff, a New Jerseyan, it seems received a letter from the Dean of SNESL, which “ended with a pitch for enrollment.” This letter explained that although SNESL was provisionally accredited by the ABA, the Dean was confident all would work out. The plaintiff alleged that “the dean knew full well that SNESL had identifiable deficiencies that would almost certainly preclude ABA accreditation.” The plaintiff enrolled, and SNESL continued to be unaccredited, yet string everyone along, and doing crazy things like “cashiering” its full-time faculty.

The Plaintiff sued the school pro se, first in D. New Jersey (which was dismissed), and later in D. Mass. The plaintiff relied on Massachusetts’ consumer protection statutes, and the defendant claimed, in essence, that none of its representations about how darn sure that SNESL would be treated like a law school were really representations. The District Court, “...entered a cryptic order, providing in its entirety that the motion to dismiss should be allowed ‘for substantially the reasons outlined in defendants' memorandum of law.’” First the guy goes to a arguably deficient law school, and then he gets kicked out of court on Fed. R. Civ. P. 12(b)(6), because his non-law school submits a lot of paper explaining why they never promised that they would be a real law school. I guess they should have also added, “Look at the plaintiff. Does this guy look like he could be a lawyer?” Of course, at the District Court, nobody seems to have noticed that the defendants submitted a lot of evidence (including catalogues from their non-law school) with their 12(b)(6) motion to dismiss, and the motion was not converted to a MSJ.


The Plaintiff got wise and got a lawyer. Not surprisingly, the lawyer did better at the First Circuit then the pro se plaintiff did at the District Court.

The First Circuit begins with a nice discussion of what can be done found purely on a motion to dismiss, and what requires conversion to a motion for summary judgment. Then, the First Circuit, looking to state law, addressed exactly why all of the defenses that the defendants (the law school and the dean) were not adequate to defeat the defendant’s claims on their face.

They also address the plaintiff’s complaint, and the defendants claim that it “failed to plead with particularity.” The First Circuit appears to acknowledge that since the complaint is grounded in what amounts to a statutory fraud cause of action, “Fed. R. Civ. P. 9(b), requires that fraud be alleged with particularity. This heightened pleading standard is satisfied by an averment ‘of the who, what, where, and when of the allegedly false or fraudulent representation.’" Since the defendant attached the letters containing the misrepresentations to his complaint, the court, after “careful perscrutation” (I didn’t have to look to see what judge wrote this opinion), found that the letters satisfied the particularity requirement of Fed. R. Civ. P. 9(b), even though the complaint itself “attributes a gallimaufry of other substantially similar statements to the defendants.” (You may thank me for providing definitions for these words later.)

Finally, the court rejected the defendant’s statute of limitations claims by noting that under Mass. Gen. Laws ch. 260, § 32, a plaintiff whose suit is dismissed “for any reason” can recommence the same suit and avail himself of the earlier date of filing. Since the plaintiff had originally sued in New Jersey, and that suit was timely, all he had to do was commence the new suit within one year. Which he did.

Peabody and Arnold, who would never hire any SNESL graduates represented SNESL. Fredric Goss represented the plaintiff.

Update: See news coverage of this story here and here.

Alden v. Alden -- More adventures in Summary Judgment

The court also sent back Alden v. Alden, 04-1054 for about the same reason. In this case, the court held, “…Because the district court failed to comply with Fed. R. Civ. P. 56(c), and failed to address at least one significant legal issue, we vacate the judgment and remand for further proceedings.”

In this case, it seems, one party advanced the theory, in an untimely motion for summary judgment, that a contract (for use of trademarks) was repudiated by not making any payments on it. The district denied the motion to allow the late-filed motion for summary judgment, but “invited [the [arty] to submit a "letter" to the court, alerting the judge to anything.. [in the dispositions and ]” she should look at. The court agreed with the theory that the contract was repudiated, but then ruled that the case was time-barred because it was repudiated quite some time ago.


The First Circuit pointed out that, this practice effectively denied a party (that is, the one who did not submit the letter) the right to participate in summary judgment proceedings. In particular, the court held that failing to comply with Fed. R. Civ. P. 56(c) is not harmless, because 56(c) requires more than just an opportunity to submit a “letter” to the court, as “…the party preparing the response must have the motivation of knowing that it is the target of a summary judgment motion.”

The court also held that the District Court did not address a trademark issue relating to whether or not the defendant had actually used the trademarks at issue.

(you can view some of the trademarks at issue here)

Galloza v. Foy (Branti goes to Puerto Rico)

In Galloza v. Foy, 03-2658, the court held that regional administrators of Puerto Rico’s taxing agency court be dismissed based on their political affiliation (and were not entitled to 5th amendment due process). In a 1983 action, the court held that these former bureaucrats did not have their First Amendment rights to free association violated because an exception exists for where the position requires a political affiliation that is an "appropriate requirement for the effective performance of the public office involved." quoting Branti v. Finkel. The court applied Branti and found that the regional directors had “sufficient policymaking implications to avoid the constitutional proscription against politically motivated discharges.”

What I find a little strange is that the court opines that “It is difficult to imagine a more politically sensitive issue than the collection and apportionment of taxes. Taxation is considered an inevitable concomitant of American life.” I disagree. Although I have never practiced in Puerto Rico, for the most part, most people I know at the IRS, at all levels are proudly isolated from the political process. These regional directors were not setting tax rates, apparently they were taxed with “allocating collected revenues to the various municipalities [their region] serves.” They also had the authority to override preliminary appraisals and field audits.

Anyway, Branti counsels a two part test for determining whether the first amendment protects an employee.:

  1. “…A high-level glimpse of the purpose of the employing agency and the role that the particular position occupies within it…. [to determine] whether the agency employing the plaintiff handle[s] matters potentially subject to partisan political differences…”
  2. and to determine “…whether the specific responsibilities of the position sufficiently resemble those of a policymaker or office-holder whose functions are such that party affiliation is an appropriate criterion for tenure.”

The court held that court held that, “…the potential for partisan divergence increases exponentially when an agency has the discretion to affect the assessment of taxes and the distribution of the amounts that are collected.” This basically means, “The more you can bestow political favors on someone, the less chance you have of being protected under Branti.”

In the second prong, I think that the court sugarcoats this analysis by claiming that because each of these directors speaks for the agency, that the position is political. So what? Career IRS and DOJ people “speak” for the agency in court all the time. While there are a number of political appointments, I don’t see how “speaking” for the agency operates to convert someone’s position to something that is inherently political.

Granted, I understand that the alternative view would be to not only bomb the crap out of Puerto Rico but also to tell it how to run its system of taxation. Obviously, I would like a system of taxation to not be based on politics, though I don’t mind seeing rates being set as a political matter. This decision, however, seems to give the go-ahead to place mid-level political appointees in the role of making decisions regarding who owes what, and those decisions may be deference by the courts.

I think that the Puerto Rican legislature agreed with me. But the court disagreed.

The legislature created the Centro de Recaudacion de Ingresos Municipales on the understanding that the agency would be "independent and separate from any other agency or instrumentality of the Government of the Commonwealth of Puerto Rico." P.R. Laws Ann. tit. 21, § 5802. Although this language establishes CRIM as a separate and independent agency, nothing in the statute declares that the agency is to be a political eunuch.


The court dismissed the due process claims by finding that these appointees were not career appointees under Puerto Rican law, but are “confidential” appointees who do not have a property interest in their job.

US v. Fraser, 04-1100: Blakey, guidelines, and state-court continuances.

In US v. Fischer, 04-1100, the court held rejected a claim that under the guidelines, "a continuance without a finding, entered as a result of an admission to facts sufficient to warrant a finding of guilt under [the law of the state of conviction], is counted as a sentence for purposes of calculating criminal history points in sentencing." Citing United States v. Dubovsky, 279 F.3d 5, 8 (1st Cir. 2002). So, this means that all those neat programs that states have to keep people from being felons if defendants keep their noses clean do not mean beans when they face federal sentencing, unless the continuance is from a juvenile proceeding. USSG § 4A1.2(f). It also means that he gets points under the guidelines for being under a “criminal justice sentence” as the continuance has a "custodial or supervisory component."

The defendant also raised a Blakely issue that was not raised below. Since this guy was sentence pre-Blakely, “Blakely precedents are not plainly erroneous.” And therefore, at best, only Apprendi applies. The court held, in the alternative that 1) the continuance in the state court, even under Blakely, was one of those facts that don’t need to be provided to juries beyond a reasonable doubt; or 2) even if those other things were true, there is no basis for concluding that his sentence would be different.


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