The Complaint as a whole alleges all claims and both causes of action against all parties, drawn substantially from another person’s complaint; such a pleading is a sham, vague and ambiguous particularly as to individually named Defendants, Matthew Johnson, Steve Soboroff, Charlie Beck, Mitchell Englander, Marqueece Harris-Dawson.
That the other complaint they’re talking about was Hunt’s can be seen in the request for judicial notice that the City filed along with its motion, which includes a copy of Hunt’s complaint. Of course, the City famously paid Hunt $215,000 over that complaint, so one supposes there’s good reason for choosing it to copy.
But perhaps the most interesting aspect of this motion to dismiss is that Charles F. Eick, the magistrate judge in the case, responded to the motion on the very the same day it was filed, first stating that he was going to decide on it without a hearing, and next stating that he was going to treat it as a motion for summary judgment rather than as a motion to dismiss. Furthermore, he had a series of exceedingly stern warnings for Wayne Spindler, making it seem as if the case is going to get tossed out summarily quite soon. This reading of matters is also borne out by the fact that Eick gave Spindler a mere 30 days to respond, which in federal court time is essentially yesterday. Here is the document filed by Eick, and after the break you can find excerpts.
The Court is in receipt of “Defendants’ Motion to Dismiss the Complaint, etc.,” filed March 9, 2017 (“the motion”). The previously noticed May 19, 2017 hearing date is vacated. The motion may present matters outside the pleadings. Therefore, the Court may treat the motion as a motion for summary judgment. See Fed. R. Civ. P. 12 and 56. A copy of Rule 56 is attached to this Order. Plaintiff is advised to read and become familiar with this rule. A motion for summary judgment, if granted by the Court, ends the case without a trial. In other words, if the Court grants Defendants’ motion for summary judgment, Plaintiff will lose and the case will be over. Plaintiff must serve on Defendants and file with the Court Plaintiff’s opposition to the motion on or before April 10, 2017. At that time, the Court will take the motion under submission without oral argument, unless otherwise ordered. Plaintiff’s failure to file timely opposition may result in the granting of Defendants’ motion for judgment, and/or the dismissal of the entire case, with or without prejudice, for failure to prosecute.
Rule 56(e) sets forth the requirements for opposing the motion, and provides that, if the opposing party fails to so respond “summary judgment, if appropriate, shall be entered against [the opposing] party.” As set forth in Rule 56(e), Plaintiff may not rely on the mere allegations or denials of Plaintiff’s pleadings. Unless Defendants’ motion for summary judgment fails as a matter of law, Plaintiff’s opposition must include evidence admissible within the meaning of Rule 56(e) demonstrating that a genuine dispute exists concerning a fact material to the case. Plaintiff’s opposition may include sworn affidavits (or declarations under penalty of perjury) setting forth specific facts material to the case. All affidavits and declarations must be signed by persons having “personal knowledge” of the facts stated in the affidavits or declarations. See Fed. R. Civ. P. 56(e). Plaintiff’s opposition also may include documentary evidence admissible within the meaning of Rule 56(e).
Plaintiff is warned that, if Plaintiff fails to submit such evidence contradicting Defendants’ version of the facts, the Court may accept Defendants’ version of the facts as the truth. If the Court accepts Defendants’ version of the facts as the truth, the Court may grant Defendants’ motion for summary judgment and enter final judgment against Plaintiff without any trial.
Image of Judge Stater is in the public domain cause of federal stuff, and I got it via Wikimedia.
