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I have coffee and a moment, so I guess it's time to start reading Trump's appellate brief to the Third Circuit today. https://beta.documentcloud.org/documents/20415984-trumpbriefpaca3apl112320
First thought:
This is a very narrow appeal. The grounds for the appeal are essentially "We weren't given the option to file a Second Amended Complaint to spray crazy all over the Court, and we should have been. The only reason the Court gave was undue delay!"
This is a very narrow appeal. The grounds for the appeal are essentially "We weren't given the option to file a Second Amended Complaint to spray crazy all over the Court, and we should have been. The only reason the Court gave was undue delay!"
So the only realistic remedy here would be a reversal of the denial of the Motion for Leave to Amend and an instruction that the lower court either reconsider the matter or a direction that the Second Amended Complaint be allowed.
Let's break that into "non-lawyer" for a moment:
Let's break that into "non-lawyer" for a moment:
It OCCASIONALLY happens that a lawyer may, you know, fuck up. Or discover facts after filing a complaint. Or file a complaint that the court looks at and is like "Heh, no. No no no."
In those cases, generally, a party has a very liberal right to file an Amended Complaint.
In those cases, generally, a party has a very liberal right to file an Amended Complaint.
But this isn't an unfettered right to amend whatever weird shit you've stuck together. Instead, it's limited by Federal Rule of Civil Procedure 15, which you can find here:
https://www.law.cornell.edu/rules/frcp/rule_15
https://www.law.cornell.edu/rules/frcp/rule_15
Under FRCP 15, a party has a right to amend as a matter of course for a limited time - specifically 21 days after the filing of the pleading. "Matter of course" is simply legalese for "You don't need permission to do this."
However, the Trump campaign DID that, and you only get one bite at that apple. Afterwards, you have to request Leave to Amend, which means you either have to have the consent of the opposing parties (Yeah right) or the permission of the Court.
GENERALLY the Court is directed to grant leave to amend liberally "when justice so requires," but that's a matter of discretion for the Court under the particular circumstances of the case.
In the Third Circuit, as in a lot of Circuits, what this means is "The Court will generally grant leave to amend UNLESS [x] is present." The way the Court determines what X is and if it is present is determined by something called the Foman Factors.
The Foman Factors come from a SCOTUS case called Foman v. Davis, 371 U.S. 178 (1962), and is the basis by which the Third Circuit will generally review a Motion for Leave to Amend, as set forth recently in Mullin v. Balicki (Precedential), found here:
http://www2.ca3.uscourts.gov/opinarch/162896p.pdf
http://www2.ca3.uscourts.gov/opinarch/162896p.pdf
In that case, the Third Circuit stated: "Denial of leave to amend can be based on undue delay, bad faith or dilatory motive on the part of the movant; repeated failure to cure deficiencies by amendments previously allowed; prejudice to the opposing party; and futility."
The court can also consider additional equities (considerations) at the same time. And, remember, the standard is "abuse of discretion" which, in many circumstances, means the judge below is given a LOT of leeway - in essence "prove he was completely wrong in denying this."
However, unlike MOST "abuse of discretion" standard reviews, the review in a FRCP 15 denial appeal is a BIT more stringent because, as here, the result can be a litigant being put out of court completely and the courts prefer to err on the side of "let them fix it if they can."
So, now that we understand the standard to be applied (don't lie, you totally don't understand it, it's cool, neither do a lot of lawyers until they deal with it), let's turn to the brief at issue.
First, let's all appreciate the fact they immediately throw Linda Kerns under the bus, basically saying "Well, you see, she fucked up."
The rest is basically what is expected: Judge should have delayed arguments, Judge didn't have a reason to deny the Motion for Leave to Amend because there was no prejudice nor was there any undue delay because of safe harbor time for choosing of electors.
I do find this footnote interesting:
