Tuesday, November 29, 2011

Attached by Law and Ignored by Will

(If your judge starts acting up, then you tell your friends)

Under Fed. R. Civ. P. 10 ( c ), exhibits attached to complaint are part of complaint for all purposes, so say decisional case law.  Isn't it amazing how some things just fall in place. Yesterday we saw a U.S. District Judge state that he was not given enough to make a ruling and that large NY financial institutions should not be allowed to settle cases without admitting or denying liability.  So this judge said  that the case would proceed to trial. (See How Real Judges Do in archives to left.)

That was an Honorable Judge within the 2nd Circuit Court of Appeals jurisdiction, here in the 3rd Circuit Court of Appeals jurisdiction, where I am litigating my case it's a whole different ball game.  My original and third amended complaints contained exhibits attached to and referenced within the complaint, as you can verify by clicking the "Source Links" and then clicking on the "3rd Amended Complaint." 

The above accurate copy of the complaint reveals averments #1 through 112 and a search of this document would reveal that the word "Exhibit" appears 17 times.  Mind you this is just averments #1 through 112, as I am saving the individual counts for later and I sought not to over-whelm you with the entire document.  For those that completed their homework, they found my statement to be true that there is no reference to a single exhibit of mine in Judge Hillman's Sept. 27, 2010 opinion.

Those that have read the opinion should find that this opinion is not in line with decisional case law, Washington v. Grace, 2009 U.S. App. LEXIS 25906, holding: "District Court's order dismissing plaintiffs amended 42 U.S.C.S. §1983 complaint for failure to comply with Fed. R. Civ. P. 8 and 10 was vacated because amended complaint provided defendants with "fair notice" of plaintiff's claims as it set forth constitutional violations at issue, matched violations with specific defendants, and described facts supporting claims and dates on which alleged violations occurred."  Have I done the same in the part of the complaint that I present to you?

Most will agree that I have, and for those not sure, those doubts will fade as we paddle up this creek.  Luckily I'll be supplying you with sure-paddles because we all know by now that we are attempting to navigate up (J.S.H.I.T.) CREEK.  However, I must be related to "old man river" cause I'm going to keep rolling right along.

You see I have the tide of law on my side.  I attached exhibits "A through Z" to the complaint and the averments of the complaint directed the trier of the fact's attention to each exhibit. Any opinion devoid of the word exhibit can only have one inference and that would be that the exhibits were willfully ignored.  Oh yes, my more attentive reader's and those partaking of the homework assignments have noted that Hillman refers to photos but the word exhibit does not appear in his document. Go ahead check.  Do you actual think that I would risk losing you by making a false statement or being up this creek without a paddle so to speak. NOT!

  Wait, hold on, I feel another tide of law about to come.  Yes, all my lawyer followers out there check the "Interpretive Notes" for FRCVP 10, at note 19. Exhibits, you'll find United States ex rel. Riley v.  St. Lukes Episcopal Hosp.  355 F.3d 370 (2004, CA5 Tex) holding: "Under Fed. R. Civ. P. 10 ( c ), exhibits attached to complaint are part of complaint for all purposes; therefor, it is not error to consider exhibits to be part of complaint for purposes of Fed. R. Civ. P 12 (b) (6) motion."

If the above decisional case law says that it is not error to consider exhibits attached to a complaint, then what happens if one does not consider exhibits attached to a complaint, is that an error, a strike or a foul ball?   -wait for it-  It's (J.S.H.I.T. #4) I tell ya.  Confused, wrote a song bout it, here's how it go: "everybody go hotel, motel, holla-day inn, I said if your judge starts acting up, then you tell you friends."

Ok friends, till next time Happy and Knowledgeable Gaming! You know who it is, TheCasinoGamingOracle

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