🚨NEW: Trump campaign seeks expedited appeal ONLY on its ability to amend its now dismissed Pennsylva

[soothsayer]

Link to tweet

?s=21


Marc E. Elias
@marceelias
🚨NEW: Trump campaign seeks expedited appeal ONLY on its ability to amend its now dismissed Pennsylvania lawsuit.

Before you ask, I don't know...🤔
https://democracydocket.com/cases/pennsylvania-democratic-counties-challenge/

[SleeplessinSoCal]

1. do-overs til we get what we want?

Over and over...

[Ms. Toad]

5. Pretty much. n/t

[TeamPooka]

2. DU lawyers, please explain this move because I don't get it.

[Ms. Toad]

8. They know what the failures in their original pleading were -

since the court told them exactly where they went wrong when it dismissed the case.

So - now, with that knowlege, they are asking the appellate court to decide that the lower court abused its discretion when it would not let them amend their complaint.

If the appellate court grants the appeal, they get to write a new complaint which might conceivably fix all of the flaws in the one they got taken to the woodshed for.

Not likely to happen. After the first amendment (which they already made), granting additional amendments is in the discretion of trial court. Appellate courts generally don'' rule that a lower court abused its discretion - unless it was really out in left field.

[TeamPooka]

44. Thank you very much Ms Toad. That explaination was very clear.

[Gothmog]

54. Marc Elias has no idea why trump is doing this

Link to tweet

[Ms. Toad]

3. They plan to amend around the failures in the earlier claim -

that way they get a secod bite at the apple (a whole new case based on the amended claim).

Unlikely the court will grant it. After the first amendment, leave to amend is in the court's discretion. Ordinarily, a court has to do something really off the wall for an appellate court to reverse a matter that is within the lower court's discretion. In other words, as long as you can read the denial without scratching your had and proclaiming, "What on earth was this court thinking when it made this decision???" the appellate court will leave the lower court ruling intact.

[Happy Hoosier]

46. How do they amend around lack of standing?

I read what they submitted as the second amended complaint. It was still a freakin’ mess.

[Ms. Toad]

48. I haven't seen a copy of it - but it wouldn't surprise me

if it was just as much a mess as the original.

Assuming they don't satisfactorily address standing in the second amended complaint, that makes it even more likely the appellate court won't find the trial court abused its discretion.

[Happy Hoosier]

49. I'm not a lawyer, but I read Judge Brann's ruling.

And I cannot see him granting a temporary injunction, even if the district court ruled that the district court had to permit the second Amendment. I’ll try to find a link to the second amended complaint for you.... you’ll be... amazed.

[Ms. Toad]

50. Judge Brann seemed to be covering all the bases,

Not just the points actually included in the complaint, but what those might be stretched into.

Since TT actually filed a proposed amended complaint (as is expected, but as of the time of the hearing they had failed to do) it is harder for them to draft the amended complaint to address the problems laid out by the judge.

[Happy Hoosier]

51. Here's the proposed second amended complaint if you car to see it.

Thanks for your opinions here. Very valuable.

https://www.courtlistener.com/recap/gov.uscourts.pamd.127057/gov.uscourts.pamd.127057.172.3_1.pdf

[Ms. Toad]

52. Thanks!

I've been going to secondary sources, so I hadn't gone digging for the second amended complaint.

[Ms. Toad]

55. So far I see pole watching, and depravation of rights . . .

phrases that really shouldn't appear in an election complaint.

[Statistical]

4. It makes no damn sense. The lawsuit has been dismissed.

Narrow or not you can't amend a previously amendment and now dismissed lawsuit. At first glance this looks like more of the keystone cops level incompetence we have seen from the Trump Legal "Dream Team". Alternatively it might be throw everything against the wall and see what sticks. Either way I don't see it going anywhere. In fact I expect a very annoyed judge to stomp on it.

[Ms. Toad]

11. Almost certainy futile, but not incompetent

Before dismissing the case, the lower court denied their move to amend the complaint - and ruled on the complaint before it.

Team Trump is claiming they should have been allowed to amend the complaint - if they had been allowed to amend the compaint the case might not have been dismissed.

If the court agrees with them, they amend their complaint and start again with the amended complaint as if it were the first document filed. The dismissed claim ends up just being a dead-end branch on a tree that is still growing.

[Statistical]

17. Interesting. I think the judge will deny it all but worth a shot.

[Ms. Toad]

18. Since permitting amendments afer the first is within the court's discretion,

an appellate court is not likely to reverse it without extremely good reason.

[Alhena]

20. I think Trump most likely loses this appeal, but he at least has a small chance, unlike with

the merits of complaint that the district court dismissed. But like I said below, winning this appeal would be a very small victory, just postponing inevitable defeat before the district court.

[Ms. Toad]

32. Agreed. n/t

[StarfishSaver]

19. It's both futile and incompetent

Unless they are also appealing the dismissal for lack of standing or explaining how the amended complaint gives them standing that the FAC didn't - neither of which they've done - they have no chance of prevailing.

[Ms. Toad]

34. I'll go along with at least likely incompetent - since he seemed completely unaware

that he actually need to seek permission to amend a second time - so he likely (a) didn't formally seek permission and (2) didn't file his proposed amendment. I was giving him the benefit of the doubt since I haven't done a dive into the docket to rule out him filing anything that would address the deficiencies in the first amended complaint, after sparring verbally with the court.

[Croney]

6. In my ignorance of the law, this sounds to me like whistling for the garbage truck to back up

so you can throw another bag of stinky trash in the back.

[soothsayer]

7. If they had put 1/8 of this effort into mitigating the pandemic, this country would be wide open and

Link to tweet

?s=21


Dotocon
@Dotocon
If they had put 1/8 of this effort into mitigating the pandemic, this country would be wide open and safely enjoying business as usual.
8:53 PM · Nov 22, 2020

[jmowreader]

9. Let me be the judge in this one...

1. Plaintiff seeks an order directing the District Court to "promptly decide (the case) on the merits."

2. Case has no merits.

3. Denial of leave to amend is upheld.

[ananda]

10. And with double prejudice.

...

[Ms. Toad]

12. Not quite.

They are seeking an order to be permitted to amend - if granted,

Then the district court gets to start over as if the decision was never granted.
The case has no merit
District Court dismisses - again.
Team Trump gets a second chance to appeal.

[Alhena]

22. Correct

[Stallion]

26. Yeah and Usually You Have to Attach the proposed Amended Complaint to the Motion for Leave

I haven't seen any discussion of the new allegations in the proposed amended complaint

this allows the court to judge whether the motion is futile

[Ms. Toad]

30. Since he seemed to be unaware that he needed to seek leave of court

for a second amendment, I wouldn't be surprised if he didn't attach it. (He was going back and forth in the hearing the court asking him if he wanted to move for leave to amend, he kept saying yes I want to amend, but didn't seem to understand the court was asking him to follow the process set forth forth in the rules.)

I haven't gone searching to see if he actually moved for leave to amend (with the proposed amendment) or not.

[The Velveteen Ocelot]

13. But the case was dismissed with prejudice, so how are they going to

amend a complaint where there's no lawsuit? They'd have to start over and file a new one.

[jmowreader]

14. How are they going to pull 70,000 Trump votes out of thin air?

They seem not to realize December 8 is Sit Down And Shut Up Day on the electoral calendar.

[Alhena]

16. Well, if the appeals court reverses the judge's order dismissing the case with prejudice then it's

void.

[StarfishSaver]

21. But they're not appealing the dismissal

That's the problem. They're appealing the judge's decision to not allow them to amend the complaint a second time.

[Alhena]

25. Yes, but if that appeal is granted then it means he should have allowed amendment and thus not

have dismissed the case. The effect of granting this appeal would be to send the case back down to the district court for a ruling on the second amended complaint which would inevitably be denied.

I'm a career law clerk for another federal district judge, so I do know this area of the law.

[StarfishSaver]

27. That's not what they're arguing at this point

They'd have to prove to the appellate court that their second amended complaint would have withstood the smackdown the court gave its first amended complaint.

And since the standard of review is abuse of discretion, they would never get that far.

[Alhena]

29. Depends what's in the Second Amended Complaint. I haven't looked at it.

If it's just more BS then yes, it will be found futile. But not having read the proposed Second Amended complaint I can't say.

[StarfishSaver]

35. The second amended complaint essentially repleads the claims from the original complaint

that were removed in the first amended complaint.

Rudy told the court those claims were taken out by mistake and would be put back in. And that's what they tried to do.

This isn't an instance of something beyo d their control or knowledge at the time of the filing needed to be addressed. They amended their complaint to remove some of the batshish allegations and then Rudy for involved and tried to put them back in. The judge wasn't having it. And I don't think the appellate court will, either.

[yellowcanine]

23. Exactly. Dismissed with prejudice means it can't be amended. Probably why the judge didn't allow

them to amend it, because he knew he was going to dismiss it with prejudice. The judge is basically saying that you sent me a turd. You can polish a turd all you want but it is still a turd.

[Ms. Toad]

37. Prior to dismissing (in the same order), the court denied his request to amend the complaint.

If the amendment was inappropriately denied, the operative complaint would have been the complaint as amended the second time, rendering the dismissal of the first amended complaint moot.

[Alhena]

15. They might actually "win" this appeal, but it's not much of a win if so

It would just kick the case back down to the district court under the new complaint, and that judge has already made clear that he isn't going to side with Trump in this case. Even with a new complaint.

The law says that motions to amend are to be liberally granted, so this appeal has a chance. But winning this appeal would just let them make new arguments that would inevitably be shot down by the district court.

It honestly sounds like they are just delaying, for all their talk of wanting to get to the Supreme Court.

[StarfishSaver]

24. Decisions as to amendments are at the judge's discretion

And the standard of review is abuse of discretion.

It will be very difficult for them to argue and nearly impossible for them to get an appellate court to rule that a court abused its discretion when refusing to allow a plaintiff to amend a complaint for a second time because they took out the wrong stuff when they amended it the first time.

[Alhena]

28. Yes, I think he most likely loses, but the 3rd circuit standard makes it so the issue will most

likely be futility of the proposed Second Amendment Complaint, not the merits of the First Amended Complaint that the district judge ruled on. So they will basically be forcing a ruling on the merits of the proposed Second Amended Complaint.

3rd circuit law in this area:

Mousavi moved to amend her complaint to add her discrimination claim. The District Court properly denied that motion as futile. We review for abuse of discretion. Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).
Parties may amend their pleadings once as of right. After that, they may do so “when justice so requires.” Fed. R. Civ. P. 15(a). But courts need not allow amendments that would be futile. An amendment would be futile if it would not fix the original complaint's problems or would not withstand another motion to dismiss. Jablonski, 863 F.2d at 292.

[StarfishSaver]

33. Exactly - that's my point

It sounds like they're telling the court "Send this back down, let us file our second amended complaint and then we can start the process over" when in reality, they need to tell the court why the district court abused its discretion in not letting them amend their complaint a second time and, if they had, how it would have changed anything.

[Nevilledog]

47. What's the appellate court likely to do with the fact that Rudy signed the appeal alone..

Without being admitted to practice in the 3rd circuit?

[Renew Deal]

31. They are delaying.

That's the game. Prevent states from certifying so the legislatures make the decision.

[StarfishSaver]

38. They can try - but this case isn't going prevent Pennsylvania from certifying

[soothsayer]

41. They actually ask to decertify if it's already been certified

[Alhena]

36. Alright, I looked at the proposed Second Amended Complaint on PACER ...

I just briefly scanned it, but it goes into the whole "our observers were too far away" and "this two-tier system of mail and in person voting is unconstitutional" stuff.

It all looks very weak to me, which makes me think the proposed amendment will be found futile and the appeal denied.

[StarfishSaver]

40. Can you pull down the original complaint?

You'll see that the second amended complaint is just a rehash of the original complaint. They took the allegations about the observers out in the FAC and when Rudy joined the case, he wanted them back in.

During the oral argument, he kept arguing those facts and the judge kept reminding him that they were no longer part of the complaint, so that issue wasn't before him. Giuliani said that they were removed by mistake and would be put back in in a second amended complaint.

[Alhena]

43. The original complaint was 85 pages, the proposed 2nd Amended Complaint is 112 pages, so there's

clearly some new stuff there. I don't have the time or patience to compare the two BS complaints to see what is different, though.

[StarfishSaver]

45. There's not really anything new in it

Just more BS and hyperbole.

[captain queeg]

39. I don't think they ultimately will have any success.

I suppose the courts aren’t supposed to take into account all the failed attempts up to this point, but you know judges are aware.

[StarfishSaver]

42. They can certainly consider that in assessing whether the trial judge abused his discretion

in denying leave to file another amended complaint

[Gothmog]

53. Trump Campaign Seeks Very Limited Emergency Remedy in Third Circuit

No one understand why the trump legal team is doing this https://electionlawblog.org/?p=118980

In a new filing in the Third Circuit (that should appear on the docket tomorrow), the Trump campaign did not ask for the appeals court to issue an immediate order delaying certification, which is what I expected. They do not even ask for an immediate order reversing the trial court’s motion to dismiss and granting some kind of preliminary relief for additional discovery. Instead, the only ask, at least so far, is for an order for the district to consider on the merits the campaign’s proposed Second Amended complaint: “Appellants will request that this Court reverse denial of the Motion to Amend and direct the District Court to promptly decide it on the merits and proceed expeditiously to a hearing to enjoin certifying the results of the Presidential Election (or order decertification if already certified) if the Second Amended Complaint (ECF 172-2) is held to state valid claims.”

This is odd for a number of reasons. First, this is an emergency election case, and it seems crazy to me that if one were litigating over the presidential election one would NOT seek to get appellate review of an adverse ruling as soon as possible. Second, all that this asks for is for the district court to consider the proposed second amended complaint on the merits. Given the scathing ruling on the first amended complaint yesterday, and the similar defects with the second amended complaint (including lack of standing), there’s no reason to expect the district court would reach any different conclusion if it considered the second amended complaint. This is especially true given the deference usually applied to decisions about accepting a second amended complaint. Third, the motion does not even ask the Third Circuit to weigh in on the controlling legal case that was just decided last week by the circuit, something which is potentially the whole ball game on standing in the case.

There are other problems with this filing too, such as the odd claim that “The proposed Second Amended Complaint (ECF 172-2) asserts claims under the Civil Rights Act for violation of the Equal Protection and Due Process clause.” Those clauses are in the U.S. Constitution’s 14th Amendment, not the Civil Rights Act.

Just bizarre and weak.

[struggle4progress]

56. They're trying to get to SCOTUS, where they hope everything will be forgiven