Is a hearing always necessary on a motion to amend?

In its decision in Carpenter v. Kenneth Thompson Builder, Inc., et al., the Mississippi Court of Appeals had some sharp footnotes aimed at MDOT regarding opposition to a motion to amend:

[2]We recognize that MDOT may have had a reason to not agree to the entry of an order allowing an amendment to the complaint. However, based on the clear instruction in Mississippi Rule of Civil Procedure 15 that leave to amend be granted “freely,” a motion for leave to amend pleadings is not the type of motion that should normally be contested. For the denial of a motion to amend to be proper, the opposing party must show some type of prejudice.

[3] Matters set for a hearing should be of significant merit. Mississippi Rule of Professional Conduct 3.1 provides that “[a] lawyer shall not . . . controvert an issue therein, unless there is a basis in law and in fact for doing so . . . .” Rule 3.2 provides that “[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” The Comment states “[d]ilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose.” Typically, orders granting leave to amend should be routinely executed, without the necessity of a hearing, unless one party has a real and clearly stated objection that is included in a responsive pleading.

¶ 7, nn. 2 & 3. Generally, as an attorney, I would prefer not having the MRPC quoted at me by the court in a civil case. Ouch!

Today, the MSSC reversed the COA. What had happened was that Carpenter, having sued MDOT, wanted to amend her complaint to add some folks, but couldn’t get a hearing set before the SOL would run. So she filed a second complaint (i.e., a new lawsuit). This, the MSSC held, was claim-splitting and not allowed.

What’s striking to me is that the MSSC nowhere treats the setting of a hearing, on a motion to amend, as somehow improper. MDOT apparently didn’t file a response opposing the motion, which the COA treats as suggestive that MDOT didn’t have a good basis for opposing it. But the MSSC merely notes that

no special circumstances are present to justify an exception to the procedural bar. The second motion to amend was filed almost a year after Carpenter became aware of the existence of the new defendants; multiple timely court dates were available for the parties to work with; Carpenter’s own attorney had limited availability, and no bad faith is evident from any of the parties regarding the scheduling.

And it seems that, in this case, requiring a hearing on a motion to amend effectively jinxed the suit against the new parties. So contra the COA’s wrist-slapping, “no bad faith is evident” in requiring a hearing to be set on a motion to amend, even if you haven’t filed a response opposing the motion? Not necessarily how TBA would play, but there you have it if you want it.

… Comments? If the movant has the burden, is it ethical to make ‘em show up & convince the court, even if you don’t have specific grounds to oppose it?

You say “hoc,” I say “hac” … let’s call the whole thing off?

The MSSC reverses, 5-4, a criminal conviction because the defendant’s lawyer was improperly practicing without a Mississippi license and the local counsel didn’t participate in the case.

Leaving aside the hotly disputed merits, we just want to know why Justice Chandler spells pro hac vice with a “hoc” throughout the Court’s opinion. (He does use hac once in para. 11, but since the same graf also uses hoc, this seems like a slip.) (ETA: And in a few other spots, adding to the confusion.)

Justice Coleman dissents from the opinion, and spells the term correctly, but doesn’t comment on the Court’s innovative spelling. (TBA doesn’t do Latin, but we gather that hoc vs. hac may have something to do with the gender of the modified word? Latinists care to chime in?)

… Back to our musings on pluralities, today’s op on the difficult issues arising from claim-splitting (the Carpenter case) has a split Court: 4 to 3, with 2 justices not participating. Is it therefore not a precedential opinion?

Bush doused with ice bucket – waterboarded next?

George W. Bush has taken the ice-bucket challenge! Good for him!

It’s insufficiently well known how his CIA was there first:

The ice-water cure. “On a daily basis during the first two weeks I was made to lie on a plastic sheet placed on the floor which would then be lifted at the edges. Cold water was then poured onto my body with buckets. … I would be kept wrapped inside the sheet with the cold water for several minutes. I would then be taken for interrogation,” detainee Walid bin Attash told the Red Cross.

Following an old American tradition from Chicago police interrogations and the abuse of WW1 conscientious objectors.

As you can see, Bush’s ice bucket omitted the plastic sheet. Can’t be revealing our classified methods! This guy also got a fuller treatment:

The report details how one prisoner, Ammar al-Baluchi, was taken from Pakistan in 2003 to a CIA black site called “Salt Pit” near Kabul, where he “endured a regime that included being dunked in a tub filled with ice water. CIA interrogators forcibly kept his head under the water while he struggled to breathe and beat him repeatedly, hitting him with a truncheon-like object and smashing his head against a wall, officials said.”

Maybe the ALS folks need a copy of the Red Cross’s report to help design next year’s fundraiser.

How (not?) to file a response opposing en banc review?

Given that FRAP 35 governs en banc review in the U.S. Courts of Appeals, one might think that a response opposing en banc review under Rule 35 would demonstrate that the petition fails to meet Rule 35’s requirements. One might think:

And there’s a good reason the D.C. Circuit should rehear Halbig en banc, although you wouldn’t know it from reading the brief the law’s challengers filed yesterday.  Funnily enough, these ostensible textualists declined to cite—even once—the text of the rule that actually governs the issue: Federal Appellate Rule 35, which says that rehearing en banc is appropriate when a “proceeding involves a question of exceptional importance.”  The Rule further explains that a proceeding is “of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.”  Sure sounds like the situation here.     

Though to be fair, they did predict a circuit split in the future. That sort of counts, maybe, kind of.

Keep your shilpit claret to yourself, sir!

Michael Gilliland posts an 1823 Burns parody celebrating the partial removal of the whiskey duty in the UK:

Scots wha hae the duties paid;
Scots wham whisky’s aft made glad;
Welcome, for the duty’s fled,
        And it shall be free!

Now’s the time and now’s the hour;        5
See the shades of evening lour;
See the streams of toddy pour—
        Pledge it three-times-three!

Wha wad be a brandy slave?
Wha wad shilpit claret lave?        10
Wha of rum wad ever rave?
        When the whisky’s free!

Wha for Scotia’s ancient drink,
Will fill a bicker to the brink!
Scotsmen wake or Scotsmen wink,        15
        Aquavitae aye for me!

By taxation’s woes and pains!
By the smuggler’s ill-got gains!
We shall raise our wildest strains,
        For it shall be free!        20

Lay the big gin bottle low!
In the fire the port wine throw!
Let the tide of whisky flow!
        Like liberty, aye free!

10 shilpit: “Of liquor: Insipid, weak, thin” (Oxford English Dictionary)
14 bicker: “‘A bowl or dish for containing liquor, properly one made of wood” (Jamieson’s definition, quoted in Oxford English Dictionary)

Enslavement, war, and terrorism: the history of America

TNC quotes a writer who thinks “We know that America is exceptional in one key respect—we came to democracy without much bloodshed” except for the Civil War. TNC comments:

The last sentence here nullifies the first. Some 600,000 Americans—2.5 percent of the American population—died in the Civil War. What came before this was a long bloody war—enslavement—against black families, black communities and black bodies. What came after was a terrorist regime which ruled an entire swath of this country by fire and rope. That regime was not overthrown until an era well within the living memory of many Americans. Taken all together, the body count that led us to our present tenuous democratic moment does not elevate us above the community of nations, but installs us uncomfortably within its ranks. And that is terrifying because it shows us to be neither providential nor exceptional, and only special in the subjective sense that our families are special—because they are ours.

RTWT.

Perry indicted for veto threat

Didn’t see this coming. Perry threatened to veto funding for a program directed by a political opponent. The veto was his right, apparently, but the threat must’ve been illegal; Fox reports there’s some precedent:

However, the left-leaning Texans for Public Justice government watchdog group filed an ethics complaint accusing the governor of coercion since he threatened to use his veto before actually doing so in an attempt to pressure Lehmberg to quit.

The indictment is the first of its kind since 1917, when James “Pa” Ferguson was indicted on charges stemming from his veto of state funding to the University of Texas in effort to unseat faculty and staff members he objected to. Ferguson was eventually impeached, then resigned before being convicted — allowing his wife, Miriam “Ma” Ferguson, to take over the governorship.

Still sounds a bit bogus to me, but if Perry is afforded the usual protections of a criminal defendant in Texas, I’m sure he’ll be fine.