April 17, 2014



New Developments in Third-Party Lawsuit, Judge Again Threatening to Dismiss with Prejudice

August 23, 2012


angiedavidson75

| Angie Davidson was a state delegate to the Iowa GOP Convention and is the owner of the blog, The Unconventional Conservative. She holds a Liberal Arts degree and is currently a Congressional District Coordinator for Liberty Iowa PAC. She is a Constitutional Republican and dedicated to small government and personal liberty.



Opinions from Liberty Crier contributors and members are their own and do not necessarily reflect those of The Liberty Crier.

Post image for New Developments in Third-Party Lawsuit, Judge Again Threatening to Dismiss with Prejudice

“Ignorance of the law is no good excuse, where every man is bound to take notice of the laws to which he is subject.”

Thomas Hobbes

Previously, the Honorable David O. Carter, Federal Judge in the Central District of California, issued an Order to Show Cause, claiming that the attorney for the third-party delegate lawsuit filed an appeal before a final judgement was made in the case. You can read that here:

Order to Show Cause

The attorney for the delegates, Richard Gilbert of Gilbert and Marlowe, Santa Ana, filed a response that said that he did not file an appeal, but that it was an appellate writ. Gilbert posted on Twitter that his intent was to force the judge to rule on this matter. You can read the response here:

Plaintiff’s Response to Order to Show Cause

In order to get an idea of what is going on, we can look at California Appellate Law. Appellate Writs are actually filed in the Court of Appeals; in this case, Gilbert’s was filed in the 9th Circuit. You can read that Appellate Writ here:

Lawyers for Ron Paul Appellate Writ

California Appellate Law allows a party to ask the Court of Appeals to issue an order — called a writ — requiring the trial court to modify one of its orders. This is generally a lengthy, technical process. According to this explanation of California Appellate Law, the Court of Appeals infrequently grants writ petitions, (although if there is an important need to decide the issue quickly, the Court of Appeals will issue a writ.)

Carter accepted Gilbert’s response stating that he didn’t intend to file an appeal. So, at this point, the lawsuit rests on the Second Amended Complaint. You can view that document here:

Second Amended Complaint

The problem here is that Carter doesn’t feel that the Second Amended Complaint has merit because it fails to state a claim. From the second Order to Show Cause issued today:
“…the Court dismissed Plaintiffs’ First Amended Complaint because the vast majority of the pleadings were unintelligible and Plaintiffs’ sole intelligible allegations failed to state a
claim. In Plaintiffs’ Second Amended Complaint, they appear to have removed all
factual pleadings and instead request an impermissible advisory opinion from this Court about the scope of the Voting Rights Act.”

“Thus, the Court ORDERS Plaintiffs to SHOW CAUSE why this case should not
be dismissed with prejudice for failure to comply with Federal Rule of Civil Procedure 8,
failure to state a claim under Rule 12(b)(6), or for violation of a court order pursuant to
Rule 41(b). See Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir.
2008) (explaining that a complaint that is so confusing that its “true substance, if any, is
well disguised” may be dismissed sua sponte for failure to satisfy Rule 8)…”

The Order goes on to explain that if there is not a sufficient claim, the case will be dismissed, with prejudice.

To reiterate, the First Amended Complaint was Dismissed Without Prejudice. Carter allowed Gilbert’s team the opportunity to file again, essentially for the third time. At the time the Second Amended Complaint was filed, Gilbert also filed in Appeals court, which made the judge believe that Gilbert was trying to appeal a decision on the First Amended Complaint and that he was accepting it as a final decision. Confusing, to say the least.

So, now, Gilbert has told the Court that he didn’t intend to file an appeal, but wanted to make sure that the issue was ruled upon quickly, so he filed an Appellate Writ in another court to force the judge’s hand.

Judge Carter accepted that explanation, but still doesn’t believe that the Second Amended Complaint shows a claim of any kind. In fact, he states that it is even more unintelligible than the first one, which he dismissed. (He also denied the Ex Parte Motion to Expedite, but said that he would try to move the case along.)

Today’s Order to Show Cause asks Gilbert to prove to the Court why they should not dismiss the case again, this time with prejudice. The Order also allows time for the Republican National Committee to file a response by Friday.

Richard Gilbert

Gilbert was told that he needed to file his response to the second Order to Show Cause on or before August 23rd. This was his response:

Gilbert’s Response 8.22

In this response, Gilbert explains that his “pleading” is for a question to be answered: for the Judge to determine that the Voting Rights Act allows delegates to be unbound because under an altogether different law, (2 U.S.C. 431, 11 CFR 100.2), the Republican National Convention is a Federal Election.

He cites a case in Utah where a delegate wanted to vote for John McCain instead of Romney. (This is actually not the case; it was the other way around. Romney had dropped out of the race.)

The gist of this response is as follows, from the response itself:

“Plaintiffs urge the Court to consider the Voting Rights Act and its language which offers its own guidance that a claim presented by any U.S. Citizen Voter must be concluded on its merits within 10 days. Here the language and word “claim” suggests that the strict interpretations of pleading a complaint that the Court is apparently considering is too harsh. Rather, if a reasonable person can understand that Plaintiffs are making a “claim” under the Voting Rights Act then the Court should rule on the merits.


In the quiet solemnity of Chambers, Plaintiffs request that the Court consider and reflect upon the intent of the Voting Rights Act which is clearly to treat a “claim” concerning the enumerated Rights therein in an expedited procedure and rule on the merits in time for the Voter to actually vote with the Rights enumerated in time for the Election. Any issue unrelated to the Federal Question set forth in the Second Amended Complaint, respectfully, should be disregarded.”

The lawsuit is riding on this response, at present, to placate Judge Carter in accepting the Second Amended Complaint as an actual claim, or stating that they are just asking the Court to clarify whether delegates can vote per their conscience under the Voting Rights Act. Carter’s Order to Show Cause says that if the latter is the case, it will be dismissed with prejudice. It is not permissible for this court to seek to determine the scope of the Voting Rights Act.

Unless Judge Carter rules on the case by the end of the week, the Republican National Convention will begin with delegates still questioning whether they are bound or unbound. More than likely, Carter will dismiss again, as the question has not changed nor is it within the scope of the Court to answer. It may be that the lawsuit is, in fact, finished for Gilbert and his team.

“Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”

Jonathon Swift




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