Mobley v. Chambers-Smith, 233 N.E.3d 651, 174 Ohio St. 3d 1414 (Ohio 2024)
At first blush, this is a simple mandamus action, with a single-paragraph order. However, the concurring opinion reveals a much more extensive—and interesting—picture.
An inmate at a state correctional facility sought public records from state officials. When the inmate received no response, he sought mandamus to order release of the documents. The state then moved to dismiss the action. The majority denied the motion to dismiss and ordered a briefing schedule.
The concurring judge agreed with the result but wrote “separately to emphasize that the quality of briefing by respondent’s attorney in this case is unacceptable.” Id. at 652. The problem with the motion to dismiss “is that the two arguments [counsel] put forward in that motion have no basis in law.” Id.
The state’s first argument claimed that the inmate’s complaint did not prove he made a public records request. The concurrence states, “This argument represents a fundamental misunderstanding of a motion to dismiss,” which “tests the sufficiency of a complaint.” Id. at 653. Under the procedural rules, the complainant has no duty to produce proof. “To put it bluntly, counsel’s argument bespeaks an inexcusable failure to grasp one of the most basic precepts of civil procedure,” the standard for a motion to dismiss. Id. The concurrence continues, “This is troubling. What is even more troubling is that this court has received numerous other motions to dismiss filed by the state containing groundless arguments in prisoner public records cases in recent months.” Id. (noting four additional cases in footnote).
The state’s second argument—that the state had no duty to provide copies of public records by mail—fared no better. The state cited two cases from the early 1990s but overlooked the fact the statute was amended in 1999 to specifically require sending copies by mail on request. The concurring opinion concludes, “Even the best attorneys sometimes make mistakes. And I would ordinarily be reluctant to write an opinion such as this one. But neither the public nor this court is served by advocacy that regularly misstates the law.” Id.
Counsel for the state will be well served by carefully considering any new motions to dismiss that they file in the Ohio Supreme Court.
AsymaDesign, LLC v. CBL & Assocs. Mgmt., Inc., 103 F.4th 1257 (7th Cir. 2024)
This opinion starts off addressing a simple issue of corporate representation but partway through turns into a discussion of typography.
A visual reality game limited liability corporation (LLC), leasing a space in a shopping mall, had a dispute with the landlord. The lessee stopped paying and was evicted, and the LLC was dissolved. Four years later, the LLC’s sole owner brought suit in his own name, claiming racial discrimination. The first action was dismissed because the owner was not the proper party. When he sued a second time in the name of the LLC, that case was dismissed as untimely. Id. at 1258. The owner then filed a notice of appeal, but as a nonlawyer he could not represent the LLC. The appellee objected, and the LLC did not file a reply.
The U.S. Court of Appeals for the Seventh Circuit ruled the appeal must be dismissed. Although a nonlawyer executing the notice of appeal was not jurisdictional, as the appellee raised the issue, the rule had to be enforced by the court.
At that point, the decision takes a sharp left turn, stating, “We are publishing this opinion not just to make these obvious points but also to urge all lawyers to read and follow” the circuit’s handbook. Id. In particular, the court directed attorneys to the section on “some important advice about typography.” Id. The court then quoted sections on best typefaces, pointing out that the appellant’s counsel (the lessee was represented on the actual appeal) “did not heed this advice.” Id. at 1260. Instead, counsel’s brief used Bernhard Modern, which the court described as “a display face suited to movie posters and used in the title sequence of the Twilight Zone . . . not characteristics that conduce to easy reading of long passages.” Id.
As an example, the opinion then shifts fonts and sets the next two paragraphs in the font counsel used in his brief. The difference is striking and demonstrates “how much harder it is to read a display face than a typeface designed for books or legal briefs,” with the court noting that in 12-point the face “requires a magnifying glass.” Id. at 1261. The court concluded, “We hope that Bernhard Modern has made its last appearance in an appellate brief” (and in this column).
Spence v. U.S. Dep’t of Veterans Affs., 104 F. 4th 531 (D.C. Cir. 2024)
This appeal arose out of a lawsuit brought by a former Department of Veterans Affairs (VA) attorney alleging that her termination was based on discrimination and retaliation.
In the district court, the plaintiff, representing herself, first filed a five-count, 98-page complaint. When the VA moved for summary judgment, the attorney moved to amend her complaint, adding a sixth count and attaching a 234-page proposed complaint. The district court denied her motion to amend and set a 50-page limit for any further amendments.
Undaunted, the plaintiff-attorney next filed a 148-page amendment—the original 98 pages plus 50 additional pages for the new sixth count. The district court denied her motion again, clarifying that it meant 50 pages total. The plaintiff next filed a 50-page complaint—along with three extensive attachments.
While the district court initially granted the latest motion to amend, the VA pointed out that one exhibit (of 57 pages) was a statement of facts that the plaintiff incorporated by reference into her complaint. The district court then ruled that complaint did not comply either. Finally, the plaintiff filed an amended complaint that was only 50 pages.
The VA moved to dismiss or, in the alternative, for summary judgment for failure to state a claim and violation of Federal Rule of Civil Procedure 8. The plaintiff filed an opposition that alleged additional facts. The district court refused to consider these facts and granted the VA’s motion to dismiss with prejudice because the plaintiff “had disregarded the court’s repeated warnings about pleading requirements and was imposing on the ‘finite resources’ of the VA and the courts.” Id.
On appeal, the plaintiff claimed that the district court erred because it failed to consider her pro se complaint in light of all the filings, including the additional facts in her opposition. The issue thus became whether an attorney who “has formal legal training and 36 years of legal work experience” was entitled to the leniency granted pro se plaintiffs generally. Agreeing with the other circuits that had addressed this issue, the court of appeals concluded that “the liberal pleading standard for pro se litigants does not invariably apply when the litigant is a licensed attorney,” and that the district court did not abuse its discretion in refusing to apply the standard here. Id.
In collecting cases for this column, examples often arise where the mistakes are instructive but the appeal was pursued by a pro se. At least in cases where the pro se is also a lawyer, the educational value remains.