That said though I do agree trying to bring back the 12b(6) is a stretch and just getting the case tossed for non prosecution would be easier.
For what it's worth, I did enjoy your theory.
The issue is not the RULE its that it was thr 10th circuit and not thr 11th circuit who interpreted it. Specifically, their interpretation of what constitutes priper interpretation of a Pro Se filing with a 12(b)(6) opposition. The 11th circuit may have a wildly different idea what "reading it in terms most favorable" means.
To any extent the 10th's interpretation is binding on the case under "law of the case" doctrine, the 11th Circuit should use two of the three exceptions it carved out for itself, and disregard that interpretation. "In particular, we have carved out three principal exceptions to the law of the case doctrine: "when (1) a subsequent trial produces substantially different evidence (2) controlling authority has since made a contrary decision of law applicable to that issue or (3) the law-of-the-case is clearly erroneous and will work manifest injustice if not if not reconsidered."" (
Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283 (11th Cir. 2009) (again thank you to
@Tathagata ). This case isn't a perfect fit, but if "law of the case" doctrine applies, this is good enough. It is clear that we meet, at least, exception three. It's entirely possible that in the last 4 months, one of the 11th Circuit courts has made a contrary copyright decision to the 10th's, which would also give us exception two (helpful if unneeded).
Now, for the interesting question. Does that doctrine really apply? Florida's Supreme Court thinks so. In 1992 it complained that there were no other appellate decisions in Florida that would help "shedding light" on this issue. 32 years later, I can confirm that this is still the case. It found a 3rd Circuit case (holding that upon a venue change, law of the case doctrine holds) persuasive (among a small number of other similar cases), and effectively adopted it. Now, here's the kicker, for our good boy, Russ. Hey, Supreme Court of Florida! Can Russ go back to Utah? "These decisions make clear that the interests of justice require a rule designed to inhibit trial courts from engaging in a "ping-pong game" by transferring a case back and forth, thereby jeopardizing the rights of the parties and undermining public confidence in the judicial function.
Accordingly, we conclude that absent extraordinary circumstances, a trial judge's order granting a change of venue may not be reviewed by a successor trial judge in the new venue. Once such an order has been issued, it must be honored in the new venue unless and until a proper appellate court rules otherwise." -
State v. Gary, 609 So. 2d 1291 (Fla. 1992)
Oh, boy. Well, I guess you're here for the long haul then, Russ!
