Is being retarded a good reason.
Didn’t work for Melinda, though I suppose she didn’t exactly put it as her reason.
Each Court is allowed leeway to interpret the rules within the confines of their own district.
Is that really the case? While it’s true that a District court is free to interpret
local rules, they are not free to interpret
federal rules.
Compare these 11th Circuit cases. In
West v. City of Albany, No. 19-11418 (11th Cir. Oct. 2, 2020), the Court held that they “defer to a district court's interpretation
of its own rules, reviewing that interpretation only for abuse of discretion”. The title of that section makes it clear the talk is about local rules.
However, “to the extent that the issue involves the
interpretation of the Federal Rules of Civil Procedure, we review
de novo”. See
Pickett v. Iowa Beef Processors, 209 F.3d 1276 (11th Cir. 2000). 7 years later they affirmed it in
Long v. Raymond, 245 F. App'x 912 (11th Cir. 2007), and held that “
A district court's interpretation of federal procedural rules, such as the Federal Rules of Evidence,
is subject to de novo review”
The only two ways I could see Mr. Hardin succeeding on 12 (b) (6) is to either do what
@Tathagata suggests, that is to conceded that the 10th’s interpretation is binding on the case, but suggest that the 11th use the power it recognised for itself to disregard their opinion as “clearly erroneous”, or to try and go via the route of
Walker v. Martin, 562 U.S. 307, 131 S. Ct. 1120, 179 L. Ed. 2d 62 (2011), and start trying to get the court to start tossing rules here and there. After all, “
Sound procedure often requires discretion to exact or
excuse compliance with strict rules, and we have no cause to discourage standards allowing courts to exercise such discretion.” Sure, the context is entirely different, and I’m 90% that’s not what they meant, but that’s an option too.
I leave it to Hardin to analyze that and decide whether a renewed 12(b)(6) motion in the new court is the proper cause of action or whether, in my shooting from the hip opinion, it would be better to pursue the procedural defaults such that any dismissal is on different grounds than the original.
Rule 41 (b) dismissal seems a lot less complicated, and therefore more likely (to succeed) than a renewed Rule 12(b)(6).
