This Complaint Makes Perfect Sense to Me!

Bismark/Jung Complaint

Maybe it was the two cafecitos this morning, or perhaps the three Dewar's last night, but this pro se complaint pending before Judge Zloch seems reasonable and actually explains quite a lot.

Take note, young writers -- here's the gripping first paragraph, which should definitely be made into a graphic novel or big-screen blockbuster:

The Petitioner is being subjected to an ongoing conspiracy of discrimination due to his mother being a descendant of King Bismarck of Germany.  The marriage between the Petitioner's German mother of Erica Jung and American father of Richard Delaney was arranged by President Dwight Eisenhower when the Petitioner's father was stationed in Germany in the American military.  Upon returning to America, Director Allan Dulles of the CIA arranged for Richard Delaney to become employed by Chevron Oil Company owned by the Rockefellers in a game of the Mother, the Child, and the Dragon in the Book of Revelations, but only because he knew that Nelson Rockefeller controlled British intelligence at the time.  This led to David Rockefeller instructing Richard Delaney to name his three German children Michael John Delaney, Larry Paul Delaney, and Valerie Jean Delaney.  David Rockefeller further instructed to give all three German children the Nazi SS nicknames of Squirt, Stinky and Spike, all beginning with an S.

If you keep reading, the causation argument becomes quite interesting.

Any guesses on how it will do under the new Iqbal/Twombly pleading standard?

Microsoft Billionaire Foiled By Iqbal!

Boy this lame-duck Congress is actually getting a few things done -- (a few) new federal judges even!

So what's the status of efforts to roll back Twombly or Iqbal?

Senator Spector's bill is D.O.A., as is the House version.

That's good news for some, except Microsoft billionaire Paul Allen:

A judge has dismissed Microsoft co-founder Paul Allen’s lawsuit against Google, Apple, Facebook and others for patent infringement.
Back in August, Allen originally claimed that 11 different companies, including YouTube (), Netflix and AOL, had violated four different patents associated with web search and e-commerce. These patents are tied to both software and business methods.

Now, however, a court has sided with Google et al. in a motion to dismiss the case, saying Allen’s claims were too vague and lacked “adequate factual detail to satisfy the dictates of Twombly and Iqbal” — two cases that are precedents for requiring adequate evidentiary support.

Sheesh, you'd think Allen's lawyers would know how to plead around this standard, but apparently not.

From the Court order:

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. Plaintiff only indicates that Defendants have websites, hardware, and software that infringe on the patents or that they are encouraging third parties to use products that infringe on the patents. This fails to indicate to Defendants which of their myriad products or devices may be at issue. These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n.10). They are also too generic to satisfy Form 18. Plaintiff urges the Court and Defendants to have patience and simply await delivery of the infringement contentions as required by Local Rule. This ignores that Local Rules do not trump the Federal Rules of Civil Procedure or the Supreme Court's mandate in Twombly and Iqbal. Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953. Plaintiff's complaint is little more than labels and conclusions, which are inadequate under Twombly, Iqbal, and even Form 18. The Court GRANTS the motions to dismiss.

I don't do patent litigation, but I'm not sure a heightened pleading standard made the difference here.

You can read the complaint and judge for yourself.

11th Circuit Applies Iqbal "Judgment" and "Experience" to Tempur-Pedic Antitrust Complaint; Complaint Now Sleeps With the Fishes

Courtesy of the Chef, I see that the 11th Circuit yesterday applied Iqbal to an interesting antitrust complaint alleged against those crappy, overpriced flexible beds, and found the complaint lacking in terms of alleging a submarket specifically for crappy, overpriced flexible beds:

Here, because the district court dismissed his complaint based on its legal insufficiency, Jacobs argues that he did not have the chance to add facts in discovery which would have established visco-elastic foam mattresses as a separate relevant product submarket.

We cannot accept this argument, however, because it would absolve Jacobs of the responsibility under Twombly to plead facts “plausibly suggesting” the relevant submarket’s composition. Jacobs’s skimpy allegations of the relevant submarket do not meet this obligation. The complaint alleges, without elaboration, that “[v]isco-elastic foam mattresses comprise a relevant product market, or submarket, separate and distinct from the market for mattresses generally, under the federal antitrust laws.” This conclusional statement merely begs the question of what, exactly, makes foam mattresses comprise this submarket. The complaint provides no factual allegations of the cross-elasticity of demand or other indications of price sensitivity that would indicate whether consumers treat viscoelastic foam mattresses differently than they do mattresses in general. Consumer preferences for visco-elastic foam mattresses versus traditional innerspring mattresses, and the costs associated with their sale, may vary widely, may vary little, or may not vary at all. Jacobs’s complaint, however, gives no indication of which of these is the case. The allegations that visco-elastic foam mattresses are more expensive than traditional innerspring mattresses and that visco-elastic foam mattresses have “unique attributes” are similarly of little help. They do not indicate the degree to which consumers prefer visco-elastic foam mattresses to traditional mattresses because of these unique attributes and differences in price.  Would, for example, a consumer whose innerspring mattress was due for replacement be more likely to purchase another innerspring mattress or substitute a visco-elastic foam model for it? Are visco-elastic foam mattresses put to different uses (as luxury goods, such as in fine hotels and within higher income brackets) than are traditional mattresses? These types of questions, which our precedent makes clear are crucial to understanding whether a separate market exists, go unanswered in the complaint.

Ok, these are fair points raised by the 11th, and since it was the plaintiffs' first shot at a complaint and they never amended and the defendant never answered, I would assume they'll get a chance to fill in this helpful factual detail at the amended complaint stage, which was inexplicably denied by the district court below.

That assumption would be wrong:

Having read Jacobs’s motion, we conclude that it did nothing but ask the district court to reexamine an unfavorable ruling. Reconsidering the merits of a judgment, absent a manifest error of law or fact, is not the purpose of Rule 59. We find nothing in the district court’s order that would constitute a manifest error of law or fact. Jacobs’s remedy, if he thought the district court ruling was wrong, was to appeal, a step he has taken. Since we have concluded that the court did not err in dismissing Jacobs’s complaint, it necessarily follows that it did not abuse its discretion in denying Rule 59(e) relief.

As noted in the LA Times and USA Today just this morning, there is a major judicial crisis, with huge vacancies and overloaded courts struggling to administer justice.

So it's good to see the 11th Circuit doing its part to quickly clear all those clogged federal dockets.

The NYT Throws A TwIqbal Party!

I'm always amused by judges who caution lawyers not to be verbose in filings, and to adhere strictly to the page limits in briefing.  This is usually accompanied by a whine about "all the paper" the Court has to deal with and that brevity is a virtue and you should be able to convey your legal position succinctly and clearly.

Yet many of these judges write long, repetitive, confusing opinions, sometimes twice the page limits of the briefs submitted by the parties themselves.

In a truly fascinating article, no court is more guilty of this than our own Supremes:

Yet the number of words per decision has been climbing. The Roberts court set a record last term, issuing majority opinions with a median length of 4,751 words, according to data collected by two political scientists, James F. Spriggs II of Washington University in St. Louis and Ryan C. Black of Michigan State. The lengths of decisions, including the majority opinion and all separate opinions, also set a record, at 8,265 words.

In the 1950s, the median length of decisions was around 2,000 words.

The opinions in Citizens United v. Federal Election Commission, the January decision that lifted restrictions on corporate and union spending in candidate elections, spanned 183 pages and more than 48,000 words, or about the length of “The Great Gatsby.” The decision — ninth on the list of longest majority opinions — was controversial, but the questions it addressed were not particularly complicated.

Long opinions are perilous, said Edward H. Cooper, a law professor at the University of Michigan. “The more things you say, the more chances you have to be wrong and the more chances you have to mislead the lower court,” he said. 

Not only are recent Supreme Court opinions ponderously long, they are also frustratingly vague and confusing!

Guess which ones gets featured:

In a pair of civil procedure decisions in 2007 and 2009 that have been cited many thousands of times, the court gave trial judges more authority to throw out cases early based on, in the words of the later decision, their “experience and common sense.”

That standard, Arthur R. Miller wrote last month in The Duke Law Journal, is “shadowy at best” and has caused “confusion and disarray among judges and lawyers.” 

You don't say!