Post by bjenkins on Sept 16, 2011 14:59:39 GMT -5
Very very very good stuff and I wait to see who is right you or me
jarta
Wednesday, August 31, 2011 7:13:27 PM
Re: None Post # of 330142
Looked on PACER tonight. Hodges appellate brief was due 8/24 after two prior continuances.
No indication a brief was timely filed. No indication a motion for a 3rd continuance of the filing date was sought.
Don't know how delayed the Ninth Circuit is in getting things posted. But, it sure doesn't look good for Hodges and the plaintiffs. ... eom
tiger760
Friday, September 02, 2011 4:22:18 AM
Re: jarta post# 329865 Post # of 330142
Jarta, The defenfants filied a motion blocking Al from filing his brief until after Sept.23rd from what I understand.
jarta
Friday, September 02, 2011 8:37:09 AM
Re: tiger760 post# 329910 Post # of 330142
tiger, ... "The defenfants filied a motion blocking Al from filing his brief until after Sept.23rd from what I understand."
Your understanding is lacking. Nothing was blocked. A motion is not a court order.
The defendants filed a motion to, if the motion was granted, have the appellate court stay its proceedings. The motion has not been granted (no order from the appellate court shows on PACER). Ergo, nothing has been stayed.
Hodges never filed the brief. He was due to file it on August 24. Ergo, he is in default. (Where there is no stay order, filing the brief when due would violate no order of the court.)
If the plaintiffs had wanted a further extension of time to file their brief (their 3rd), the motion had to be filed at least a week before the brief was due. That would have been August 17. No motion for a 3rd extension shows on PACER.
In asking for the 2nd extension, Hodges stated that he believed the case would be settled by August 24. No motion to declare the case moot because it has been settled shows on PACER.
Hodges hasn't even filed a response to the motion to stay proceedings. Where is it?
The guy (Hodges) is now incompetent. He may have gotten lucky and had some success earlier in his career. But, his faculties and legal ability (to the extent he ever had any) are now diminished. He has no business handling a case in a federal appellate court.
There is a way out. The appellate court reserves to itself the ability to retroactively cure defaults by extending dates. That ability only exists for a short period of time. Hodges had better get a motion for leave to file his brief instanter (with copies submitted with the motion) on file pronto. Now, it's the only way to get the brief filed late. In his motion to file instanter ("right now" in Latin), Hodges would have to fall on his sword and beg the court not to punish his clients for his massive incompetence. I don't think that sort of motion would be granted - but it is Hodges' only shot at getting any brief filed now.
As part of the motion, Hodges would have to attach his affidavit showing that the brief had been timely prepared, was ready to be filed on August 24 and he was just confused and incompetent in not filing it.
Your understanding is lacking. ... eom
Debbie777
Saturday, September 03, 2011 4:20:37 AM
Re: jarta post# 329912 Post # of 330142
jarta,
So, are you saying the DOJ's Motion for Summary Affirmance doesn't fall into the "dismissal" category?
From the Ninth District Court FRAP Rules:
Circuit Rule 27-11.
Motions; Effect on Schedule
(a)Motions requesting the types of relief noted below shall stay the schedule for record preparation and briefing pending the court’s disposition of the motion: (Rev. 1/1/03)
(1)dismissal; (Rev. 1/1/03)
(2)transfer to another tribunal; (Rev. 1/1/03)
(3)full remand;
(4)in forma pauperis status in this court; (Rev. 1/1/03)
(5)production of transcripts at government expense; and (Rev. 1/1/03)
(6)appointment or withdrawal of counsel. (Rev. 1/1/03)
(b)The schedule for record preparation and briefing shall be reset as necessary upon the court’s disposition of the motion. Motions for reconsideration are disfavored and will not stay the schedule unless otherwise ordered by the court. (Rev. 1/1/03)
www.ca9.uscourts.gov/datastore/uploads/rules/rules.htm#1255037
jarta
Saturday, September 03, 2011 8:15:19 AM
Re: Debbie777 post# 329937 Post # of 330142
Debbie, ... "So, are you saying the DOJ's Motion for Summary Affirmance doesn't fall into the "dismissal" category?"
Yes. Dismissals occur because the appellate court finds it has no jurisdiction to hear a case or that the rules have been broken.
The government's pending motion is for a summary affirmance (because the position of the appellants is so meritless that further briefs and argument are not necessary to affirm the trial court), not for a dismissal of the appeal.
There is a difference. In a summary affirmance the appellate court rules that the trial court decided the case correctly. In a dismissal, the appellate court never reaches or passes on the ruling of the trial court. It just terminates the appeal for reasons unrelated to what the trial court did.
Since Hodges did not file his brief on August 24, the case could now be dismissed, not affirmed, for failure to prosecute the appeal under Ninth Circuit Rule 42-1 by the appellate court directing the appellate court clerk to enter the dismissal order - without any separate motion to dismiss being filed by the government.
"Circuit Rule 42-1. Dismissal for Failure to Prosecute
When an appellant fails to file a timely record, pay the docket fee, file a timely brief, or otherwise comply with rules requiring processing the appeal for hearing, an order may be entered by the clerk dismissing the appeal. In all instances of failure to prosecute an appeal to hearing as required, the Court may take such other action as it deems appropriate, including imposition of disciplinary and monetary sanctions on those responsible for prosecution of the appeal."
Single, i mean, Mommy... help... Ugh!