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Wednesday, February 15, 2017

U.S. Judge R. David Proctor's cheat job in "The House Case" starts early and ends late -- with lots of cheating throughout the middle passages, for good measure


Judge R. David Proctor and
his wife, Teresa
(From Facebook)
The cheat job that U.S. District Judge R. David Proctor has administered in our "House Case" is like a horribly written three-act play -- Proctor cheats in the beginning and the end, with lots of cheating in between.

Let's start by reviewing "Act 1." Proctor reveals himself to be a con man right off the bat, and he continues in that vein throughout. For now, we will focus on two major issues as the curtain rises on our "diabolical play."

A corrupt judge cannot get even the basics right
Reciting the standard of review on a Motion to Dismiss is the first order of business, and Proctor gets it wrong -- and continues to get it wrong on almost every page of his 45-page memorandum opinion. (Proctor's opinion and our Motion to Alter are embedded at the end of this post.)

Proctor cites the two U.S. Supreme Court (SCOTUS) cases -- Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal (known, jointly, as "Twombly and Iqbal") -- that have caused mass confusion in federal courts. At their core, Twombly and Iqbal require a complaint to "state a claim to relief that is plausible on its face." Plaintiffs now must “nudge their claims across the line from conceivable to plausible,”

That's fine and dandy, but no one seems to know what it means, least of all Judge R. David Proctor. How does something go from conceivable to plausible? Most people of average to high intelligence would shrug their shoulders. Many judges, like Proctor, just wing it. If they are conservative and favor defendants (such as corporations, institutions, moneyed interests), they are likely to use Twombly/Iqbal as an excuse to kick out complaints that likely have merit. If they are liberals, they probably ignore Twombly/Iqbal.

Either way, the public probably is left with the impression that judges don't have a clue what they are doing. And the public would be right. If you skim the 45 pages of Proctor's opinion, you will find repeated use of words such as "conclusory" and "formulaic." That is the language of Twombly/Iqbal -- many people have no idea what those words mean either -- and the law does not make it clear.

It is clear that many observers -- from law-review authors and editors to lawmakers, even judges -- want to get out of this mess. Several measures have been introduced in Congress to overturn Twombly/Iqbal. But with conservatives in the majority, and their corporate backers pushing for easy dismissal of valid lawsuits, nothing has gained traction yet.

In a rare show of forward thinking, courts are moving away from Twombly/Iqbal on their own. The Eleventh Circuit Court of Appeals -- which covers Alabama, Georgia, and Florida, and governs our case -- has interpreted Iqbal to mean that a "heightened pleading standard" no longer exists. From a case styled Randall v. Scott, 610 F. 3d 701 (11th Cir., 2010):

We conclude that the district court erred in applying a heightened pleading standard to Randall's complaint. After Iqbal it is clear that there is no "heightened pleading standard" as it relates to cases governed by Rule 8(a)(2), including civil rights complaints.

First, ours is a civil-rights case. Second, Rule 8 of the Federal Rules of Civil Procedure (FRCP) has determined the bar that plaintiffs must clear to survive a Motion to Dismiss -- and it has applied since the federal rules were adopted in 1938. Rule 8 holds that a plaintiff must provide:

"a short and plain statement of the claim showing that the pleader is entitled to relief."

Our complaint easily meets the Rule 8 standard, and Proctor acknowledges, on page 7 of his opinion, that Rule 8 governs the case. He also acknowledges the 11th Circuit's finding in Randall. If anything, our complaint provides too many factual allegations and details.

Even SCOTUS is moving away from Twombly/Iqbal, and it did so in a Deep South case, originating in Mississippi. From a case styled Johnson v. City of Shelby, 135 S. Ct. 346 (2014):

We summarily reverse. Federal pleading rules call for a short and plain statement of the claim showing that the pleader is entitled to relief, Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted. . . . [The rules] "are designed to discourage battles over mere form of statement. . . . Rule 8(a)(2) indicates that a basic objective of the rules is to avoid civil cases turning on "technicalities."

SCOTUS gets even more emphatic in Johnson:

Petitioners stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off dismissal for want of an adequate statement of their claim.

No one who reads our complaint can seriously claim we did not inform defendants of the factual basis for our lawsuit, and in the words of the nation's highest court, we "were required to do no more to stave off dismissal."

Johnson did not specifically overturn Twombly/Iqbal, but it clearly rejected the pleading standard set out in those two cases. And we are talking about a U.S. Supreme Court ruling here.

Bottom line: Proctor got the pleading standard wrong, both at the Eleventh Circuit level and at the national level, via SCOTUS. You can't get much more wrong than that.

Proctor ignores a simple standard that he took an oath to uphold
A simple rule in reviewing a Motion to Dismiss -- the equivalent of "three strikes and you're out" in baseball -- is this:

Pursuant to Federal Rule of Civil Procedure 12(b)(6), all factual allegations are viewed in the light most favorable to Plaintiff, the nonmoving party.

We are the nonmoving party here. The Motions to Dismiss were filed by defendants. Proctor must, by law, view factual allegations in a light most favorable to us. He fails to follow this straightforward and longstanding principle over and over.

We will point out examples in upcoming posts. But for now, we've established that Proctor acts corruptly in the early stages of his opinion. And things don't get any better as they move along.


(To be continued)







24 comments:

Anonymous said...

Why publish a pic of the judge's wife? Do you want to harass her?

Anonymous said...

Clearly they have done violence against you and your wife.

How do you respond?

Anonymous said...

Roger these people hate you. They want to beat you. Roger defend yourself!!!!

legalschnauzer said...

7:19 --

Why not?

a. She was in the picture, and I saw no reason to crop her out.

b. She and Proctor published it on a public Web site, so they apparently don't have a problem with it?

c. She's an adult and should be a big enough girl to have her photo published.

d. How is it harassment to publish a photo of someone? GOP thugs have caused both my wife and me to have our mugshots taken. Is that harassment? Are you concerned about that?

e. Are you saying that's not his wife?

Anonymous said...

Hah! It's hard to win with these clowns isn't it? They don't like it when you publish a photo of a child, they don't like it when you publish a photo of an adult. What's with them?

legalschnauzer said...

Good question, @8:49. What they really don't like is my unmasking of conservatives as corrupt -- whether it's Dave Proctor, Luv Guv Bentley, Luther Strange, Jessica Garrison, Rebekah Mason, Jeff Sessions, Bill Pryor, and the list goes on. They can't attack my reporting in any substantive way, so they whine about pictures. Sad.

Anonymous said...

7:19 is clueless about photography. Proctor is standing behind his wife, so cropping her out would make the photo look ridiculous, like he has some sort of contorted body.

legalschnauzer said...

Good point, @8:55. The photo is uncroppable. Even it wasn't, I wouldn't crop it. Mrs. Proctor married a public official, and they feed at the taxpayer trough, so she shouldn't have a problem with her photo being published. If she does, she should tell hubby to resign from the federal bench. He's a crappy judge, and we'd all be better off with someone of integrity on the bench.

Anonymous said...

LS, in fairness you were arrested and that's why your mugshot was taken. You can argue that you shouldnt have been arrested but since you were that's normal procedure

Anonymous said...

Sounds like the loons can't lay a glove on your legal or factual arguments. I guess that's why they have to whine about the pictures.

legalschnauzer said...

@9:10 --

In fairness, I wasn't lawfully arrested, and neither was Carol. In my case, my mughsot not only was taken, but it has been spread all over the Internet.

My question to the original commenter, in essence, was: Do you care only about Mrs. Proctor's feelings or do you care about the feelings who truly have been victims of abusive use of photography? What about you? How do you answer that question. Do you care about legal and police corruption that causes people to be beaten and maced inside their own homes and then have their mugshots spread all over the Web?

Anonymous said...

I read the Randall decision and was surprised to find the 11th Circuit has, indeed, pretty much said that Iqbal and Twombly don't apply in the circuit. Sounds like they essentially have chosen to ignore the U.S. Supreme Court. Is that how you see it?

legalschnauzer said...

That's a good question, @10:32. And yes, it seemed to me, at first, that they were ignoring SCOTUS, and I wondered, "How can they do that?" Upon closer reading, I think the 11th Cir. essentially is saying, "Twombly established a heightened pleading standard, but Iqbal came later, and it's our interpretation, that Iqbal found Rule 8 governs and there is no heightened pleading standard."

When SCOTUS issues muddled opinions -- and that's what Twombly and Iqbal are, to put it politely -- the circuit courts, I guess, are left to interpret what those rulings mean. It's unusual for anyone to call the 11th Cir. progressive, but their Randall finding seems to be progressive. Perhaps Obama appointees have had some influence on federal courts.

This issue obviously is ripe for a return to SCOTUS, and I suspect Twombly and Iqbal will be overturned someday. You really can't defend law that hinges on the meaning of two words -- "conceivable" and "plausible" -- and there is very little difference between those words.

For now, the 11th Cir. has found Twombly doesn't apply. Proctor acknowledges the Randall finding, but chooses to ignore it. There is no other explanation for that but corruption.

Anonymous said...

Are the loons still whining about some claim on Facebook?

legalschnauzer said...

I have no idea, @10:54. I asked one of the foul-mouthed babies yesterday to give me a name as to who made this claim -- and I got no response (surprise, surprise). Bunch of children making noise in the wilderness. If there is no name attached to said claim -- whatever it is -- it is meaningless. These people have zero credibility, and they seem to know it, because they won't attach their names to anything. They probably are Trumpistas who are staining their shorts because of the Flynn scandal, which is likely to bring their hero down.

Anonymous said...

Re: 10:58 AM

What a dishonest man you've turned out to be.

Care to comment on what you are being accused of on Twitter?

Didn't think so.

legalschnauzer said...

Who is accusing me of something on Twitter? Let's hear a name. Are you honest enough to provide a name?

Didn't think so.

Anonymous said...

Roger I have seen some tweets about you last couple of days. The accusation is that you faked comments on your blog. There is a link to a screenshot on Imgur but its pretty easy to fake so I think you can just chalk it up to disinformation from Trumpists. I'd nip it in the bud.

legalschnauzer said...

There is nothing to nip. Give me a name of who made the accusation? Otherwise, it's a "story" without an author, which is no story at all.

Anonymous said...


I have to say your filing was pretty bad though Schnauzer. Whilst you may believe a wide ranging conspiracy occurred, why not stick to the narrow facts of your foreclosure if you believe it to be erroneous in its basic prosecution. You can see a federal judge sitting there scratching their head "so wait, they allege that the State Attorney General was somehow in contact with a foreclosure company in a conspiracy to remove your house and the foreclosure company was somehow acting for reasons other than collecting debt that you owed on the house due to lapsed payments?". Its just not going to come across as credible, hence the judgement that it failed on the levels of plausibility.

legalschnauzer said...

You see it that way, @5:44, because you are predisposed to see it that way. You and commenters like you are apologists for authorities, no matter how corrupt they might be. You, or someone like you constantly is defending the cops who broke my wife's arm, and the landlord who made it happen. A few additional points:

1. The conspiracy component is only a tiny portion of the claim.

2. It's not hard to believe the AG's involvement when you know, as the complaint states, his girlfriend had filed a lawsuit against me, and he could not possibly hold up under discovery that would ruin his career.

3. The defamation claim is in black and white, Liberty Duke's theft of our FC funds is in black and white, Rob Riley and Liberty Duke's role in my unlawful arrest and how it hurt our chances to fight the foreclosure is in black and white.

Finally, there is no level of plausibility in the 11th Circuit. That's the surest sign that Proctor is corrupt. And it's the surest sign that you are a con artist, apologizing again for corrupt public officials.

You aren't alone. Proctor is predisposed because of his ties to Jeff Sessions, which he can't deny.

legalschnauzer said...

Other signs that you are full of it or not very smart:

1. The allegations, by law, must be taken as true. Any judge who is making a dismissal on credibility is violating the law.

2. All allegations must be seen in a light most favorable to the nonmoving party, which is us. You are viewing in a light most favorable to Luther Strange. A judge who does that is violating the law.

You should have known this before writing your comment. If you didn't, you probably would be well advised not to comment on matters of which you are ignorant.

Anonymous said...


I'm just giving you an honest opinion (which you can disagree with of course), I think you'd have better chances of success in your cases if you didn't have the conspiracy angle and more narrowly focussed on technical issues with the foreclosure and disbursement of funds, where you seem to have more factual arguments to work with.

FYI: I don't think your wife assaulted a police officer. That doesn't pass my plausibility monitor either. I do though think you should take the threat of her prosecution seriously and mind what you report on your blog about those events without taking legal advice on the posts.

legalschnauzer said...

@7:36 --

I didn't say your opinion wasn't honest, at least in your mind. You are predisposed to view things in favor of the other side, and that's what your comment shows. Your comment might be honest, but it is not well informed. Your opinion isn't worth much if it doesn't reflect the standard a court must use to review motions to dismiss.

Just as your claim that I'm not taking her prosecution seriously is also not well informed. I've written, accurately, that the charges are preposterous and not based on fact or law. That's true. But it doesn't mean we aren't taking them seriously. We've been fighting court corruption for 16 years. If there is anyone who takes court corruption seriously, it's me.