Professional Documents
Culture Documents
Document: 006111595016
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Van R. Irion LAW OFFICES OF VAN R. IRION 9040 Executive Park Drive, Ste. 200 Knoxville, TN 37923 (423) 208-9953 van@irionlaw.com Counsel for Appellants
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ------------------------
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NATIONAL DEMOCRATIC PARTY OF THE USA INC.; DEMOCRATIC NATIONAL COMMITTEE; DEBBIE WASSERMAN SCHULTZ; and CHIP FORRESTER Defendants/Appellees ------------------------
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LIBERTY LEGAL FOUNDATION; JOHN DUMMETT; LEONARD VOLODARSKY; and CREG MARONEY Plaintiffs/Appellants,
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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS Sixth Circuit Case Number: 12-6634
Pursuant to 6th Circuit Rule 26.1, Liberty Legal Foundation makes the following disclosures:
1. Is said party a subsidiary or affiliate of publicly owned corporation? No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No. _s/Van R. Irion________ Van R. Irion
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It is hereby certified that on the 8th of Adar, Year of our Lord 2013 (a.k.a. February 19, 2013), a copy of the foregoing was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
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CERTIFICATE OF SERVICE
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_s/Van R. Irion_________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiffs (423) 208-9953
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Case Name: Liberty Legal Foundation v. National Democratic Party of the USA Inc.
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TABLE OF CONTENTS
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Table of Authorities Statement Regarding Oral Argument Statement of Issues Presented for Review Statement of Subject Matter Jurisdiction A. Jurisdiction in the District Court
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A. Background
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E. Standing for One Plaintiff Allows All Plaintiffs to Proceed 25 F. Abuse of Discretion by Refusing to Allow Amendment G. Abuse of Discretion by Clear Misconstruction of Its Own Local Rule 26 27
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5-7 8 9 10 10 10 11 12 13 16 16 18 20 22
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TABLE OF CONTENTS (cont.) H. District Court Denied Attorney Irion Adequate Due Process 30 I. Advocating A Case of First Impression Is Sanctionable Only When Utterly Unsupportable Conclusion Certificate of Compliance Certificate of Service Designation of Relevant Court Documents 31
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34 36 37 38
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TABLE OF AUTHORITIES Cases ACLU v. Natl Sec. Agency, 493 F.3d 644 (6th Cir. 2007) Brown v. Matauszak, 415 Fed.Appx. 608 (6th Cir. 2011) Cook v. American S.S. Co., 134 F.3d 771 (6th Cir. 1998) Drake v. Obama, 664 F.3d 774 (9th Cir. 2011) Page 23
17, 26, 27
Fulani v. Hogsett, 917 F.2d 1028 (7th Cir. 1990) Geier v. Sundquist, 372 F.3d 784 (6th Cir. 2004)
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Eastway Construction Corp. v. City of New York, 762 F.2d 243 (2nd Cir. 1985)
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Hall v. Liberty Life Assur. Co. of Boston, 595 F.3d 270 (6th Cir. 2010) Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008)
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Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Massachusetts v. EPA, 549 U.S. 497 (2007)
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30 Passim 14, 19, 33 24 19, 20, 27, 29 16, 19, 20, 22 14, 16, 22 21 25, 26 14, 15, 19, 31-34
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TABLE OF AUTHORITIES (cont.) Cases Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008) Owen v. Mulligan, 640 F.2d 1130 (9th Cir. 1981) Ozee v. Amer. Council on Gift Annuities, Inc., 143 F.3d 937 (5th Cir. 1998) Page 23
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Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370 (6th Cir. 1987) Tex. Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) United States v. U.T. Alexander, 981 F.2d 250 (5th Cir. 1993) U.S. v. Ross, 535 F.2d 346 (6th Cir. 1976)
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White v. United States, 601 F.3d 545 (6th Cir. 2010) Statutes 28 U.S.C. 1291
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28 U.S.C. 1927
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Red Carpet Studios Div. of Source Advantage, Ltd. V. Sater, 465 F.3d 642 (6th Cir. 2006)
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15, 31, 34 19 14, 16, 22, 23 15, 31 14, 16, 22 15, 32 18, 32 21 10 Passim 24
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TABLE OF AUTHORITIES (cont.) Rules Fed. R. Civ. P. 11 Fed. R. App. P. 32 6th Cir. R. 32 District Court for the Western District of Tennessee Local Rule 7.3 Dictionaries Blacks Law Dictionary Bryan Garner ed., 7th ed., West (1999) Page 30 36
36 28
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Secondary Sources Federal Practice and Procedure Charles Wright, Arthur Miller & Mary Kay Kane 3rd ed., West (2010)
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Plaintiff-Appellants believe that oral argument is necessary in order for all facts and issues to be adequately presented to this Court.
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Because failure to correct the District Courts error in this case would
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STATEMENT OF ISSUES PRESENTED FOR REVIEW A. Whether the District Court abused its discretion by grounding its sanctions order upon clearly erroneous findings of fact.
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C.
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E.
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Whether the District Court failed to provide Plaintiffs attorney with adequate procedural due process prior to sanctioning said attorney.
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Whether the District Court abused its discretion by misconstruing its own local rule in a manner that clearly runs contrary to the plain language of said rule.
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Whether the District Court abused its discretion by dismissing Plaintiffs complaint without leave to amend despite the Courts own acknowledgement that facts could have been pled that would have supported standing.
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Whether the District Court abused its discretion by sanctioning Plaintiffs attorney pursuant to section 1927 for said attorneys advocacy for a reasonable extension of precedent in a case of first impression regarding enforcement of the U.S. Constitution.
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have required enforcement of the U.S. Constitution, said issues were pendant to the
objected, pointing out that alternative claims were grounded in state-law, and the State of Tennessees interests in the enforcement of its own State Election Code. Memo. Mot. Remand, R.13, Page ID#122-217. The District Court denied Plaintiffs motion to remand. Or. Denying Remand, R.18, Page ID#147-158. B. JURISDICTION IN THE COURT OF APPEALS This appeal is from a judgment entered by the District Court on December 4,
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2012, granting Defendants petition for attorneys fees pursuant to Defendants motion for sanctions. Judgment, R.54, Page ID#710; Or. Granting Fees, R.53, Page
ID#693-709; Or. Granting Sanctions, R.32, Page ID#489-510). This Court has jurisdiction by virtue of 28 U.S.C. 1291. The Plaintiffs-Appellants filed a timely notice of appeal on December 27, 2012. Notice of Appeal, R.55, Page ID#711.
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the Defendants removed the instant litigation to Federal Court. The Plaintiffs
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primary claims, and asserted only well-established U.S. Supreme Court precedent.
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While the Plaintiffs complaint did raise additional causes of action that would
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This action was filed in Tennessee State Court, alleging common law
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Plaintiffs attorney should have known that Plaintiffs lacked standing to pursue
challenge the qualifications of a rival candidate running for the same elective
The District Court distinguished the instant case from precedent supporting competitive-candidate standing by concluding that write-in candidates do not qualify for competitive-candidate standing. Or. Granting Sanctions, R.32, Page
instant case and precedent created a ruling of first impression: Plaintiffs have
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cited, and the Court is aware of, no legal authority standing for the proposition that a write-in candidate who was not a political partys nominee for office could have competitive standing to challenge a rivals qualifications. Id. at 13, second full sentence.
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ID#489-510 at 498. The Courts order established that its distinction between the
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office. Or. Dismissing Compl., R.31, Page ID#496-488 at 481; Plf.s Opp. Mot.
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Plaintiffs attorney pursuant to 28 U.S.C. 1927. The District Court found that
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The District Courts order dismissing Plaintiffs complaint noted several facts that could have been pled, and would have been supportive of Plaintiffs
The District Court denied Plaintiffs motion to reconsider. Or. Denying Mtn.
The District Court never issued an order to show cause prior to granting
Defendants motion for sanctions. Plf.s Opp. Mot. Sanct., R.29, Page ID#391-413 at 391; Or. Granting Sanctions, R.32, Page ID#489-510. STATEMENT OF FACTS
Plaintiff John Dummett was a candidate for President during the November 2012 election. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 at
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31,32,49.1 Plaintiff Dummett met all requirements and documentation to qualify as a write-in candidate pursuant to Tennessee State Election Code. Plf.s Suppl.
Resp., R.24-1, Page ID#295-303 at 303; Dummett Write-In Cert, R.24-2, Page ID#304; Plf.s Opp. Mot. Sanct., R.29, Page ID#391-413 at 392-393; also
The Complaint upon which the District Courts sanctions are founded was never filed by plaintiffs in Federal Court. The only place this complaint appears in the record is as an exhibit to the Defendants notice of removal.
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sanctions. The Court also denied Plaintiffs written request for a hearing regarding
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assertion of standing. Or. Dismissing Compl., R.31, Page ID#496-488 at 482. Yet
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acknowledged by the District court at Or. Denying Mtn. to Recons., R.51, Page ID#682-690, FN12. Plaintiff Dummett registered with the Tennessee Secretary of State as a write in candidate pursuant to Tennessee State Election Code. Id. Said registration was completed several months prior to the deadline established by
in Tennessee. Plf.s Mtn. Stay, R.34, Page ID#510-519 at 515, FN1. Registered
Tennessee. Id. Plaintiff Dummett alleged that the Defendants actions would harm Plaintiff Dummett by resulting in an unfair advantage during the election. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 at 33,49. Plaintiff Liberty Legal Foundation is a non-profit Tennessee Corporation
State Ct., R.1-2, Page ID#29-47 at 26. Plaintiff Dummett is a member of Liberty
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For all the reasons set forth below, the District Courts order sanctioning
attorney Irion is a gross abuse of discretion. Upholding the order at issue would stifle the enthusiasm or chill the creativity that is the very lifeblood of the law.
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with more than 30,000 members across all 50 states. 1st Amd. Compl. as filed in
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voters in Tennessee intended to cast votes for Plaintiff Dummett in the State of
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in State Ct., R.1-2, Page ID#29-47 at 31,32. Plaintiff Dummett was campaigning
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Tennessee State Election Code. Id. Plaintiff Dummett was also registered with the
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Mone v. C.I.R., 774 F.2d 570, 574 (2nd Cir. 1985); quoting Eastway Construction
Constitution enforced. Failure to reverse the District Courts order would signal to
personal sanctions against attorneys. Such a result would have a devastating effect
The District Court found that Plaintiffs attorney was more than negligen[t]
standing. Or. Granting Sanctions, R.32, Page ID#489-510 at 496. However, attorney Irions assertion of standing was founded upon well-established doctrine. Drake v. Obama, 664 F.3d 774, 782-3 (9th Cir. 2011); citing Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H. 2008); Tex. Democratic Party v. Benkiser, 459 F.3d
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extension of existing precedent. The District Courts own order sanctioning attorney Irion establishes that the
Courts denial of standing in the instant case is a ruling of first impression. Or. Granting Sanctions, R.32, Page ID#489-510 at 496. Precedent from this and other
Circuits all agree that sanctions should not be imposed under the circumstances
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582, 586-87 & n.4 (5th Cir.2006); and Schulz v. Williams, 44 F.3d 48, 53 (2nd Cir.
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or incompeten[t] and that he should have known that the Plaintiffs lacked
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attorneys that legitimate attempts to enforce the Constitution will now result in
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effect, the challenged order sanctions an attorney for his attempt to have the U.S.
Corp. v. City of New York, 762 F.2d 243, 254 (2nd Cir.1985). Multiplying this
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presented in the instant case. Smith v. Detroit Federation of Teachers Local 231,
States v. U.T. Alexander, 981 F.2d 250, 253 (5th Cir. 1993).
sanctions, the Courts finding of lack of standing in the underlying lawsuit was
error, the Courts further step in sanctioning attorney Irion represents an abuse of
dismissal for lack of standing was arguably an error, then the Courts sanctioning of attorney Irion is an abuse of discretion of a higher order. The District Courts order granting sanctions mistakenly found that facts which were actually pled, were not pled. The order misconstrued the type of harm
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precedent on exactly the type of standing asserted. The Court refused to allow Plaintiffs to amend their complaint, despite the Courts knowledge that facts existed that would have satisfied the Courts conception of standing in the instant case. For all of these reasons the District Courts order sanctioning Plaintiffs attorney is an abuse of discretion, and therefore must be reversed.
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being pled. This misunderstanding of the harm led the Court to find that standing
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also an abuse of discretion. Because the finding of lack of standing was itself an
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Amer. Council on Gift Annuities, Inc., 143 F.3d 937, 941 (5th Cir. 1998); United
829 F.2d 1370 (6th Cir. 1987); Mone v. C.I.R., 774 F.2d 570 (2nd Cir.1985);Ozee v.
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ARGUMENT A. Background
28 U.S.C. 1927, finding that he should have known that Plaintiffs lacked
at 496. The Court concluded that attorney Irions actions were more than
established doctrine of competitive-candidate standing in which a candidate may challenge the qualifications a rival candidate running for the same elective office. Or. Dismissing Compl., R.31, Page ID#496-488 at 481; Plf.s Opp. Mot. Sanct., R.29, Page ID#391-413 at 409. This notion of competitive standing has been
2011); citing Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H. 2008); Tex.
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Democratic Party v. Benkiser, 459 F.3d 582, 586-87 & n.4 (5th Cir.2006); and Schulz v. Williams, 44 F.3d 48, 53 (2nd Cir. 1994). The District Courts order distinguished the instant case from Drake by
finding that Plaintiff Dummett had failed to plead that President Obamas presence on the ballot would in any way injure his campaign. Or. Granting
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recognized by several circuits. Drake v. Obama, 664 F.3d 774, 782-3 (9th Cir.
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negligence or incompetence. Id.; citing Hall v. Liberty Life Assur. Co. of Boston,
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standing to pursue their claims. Or. Granting Sanctions, R.32, Page ID#489-510
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Sanctions, R.32, Page ID#489-510 at FN21; citing Or. Dismissing Compl., R.31, Page ID#496-488. However, this factual finding is an obvious error. Plaintiff Dummett actually did allege that the appearance of Obamas name on Tennessee
Additionally, the District Courts order stated that Plaintiff Dummett failed
Tennessee intended to cast a vote for him. Or. Granting Sanctions, R.32, Page
Plaintiff Dummett was campaigning in Tennessee and did have registered voters in Tennessee that intended to vote for him. Plf.s Mtn. Stay, R.34, Page ID#510-519 at 515, FN1.
Most importantly, after identifying facts that could have been truthfully pled
precedent and dismissed the complaint without leave to amend. See Or. Dismissing
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Compl., R.31, Page ID#496-488 at 481; Brown v. Matauszak, 415 Fed.Appx. 608 (6th Cir. 2011).
The District Court also concluded that the instant case was distinguishable
from existing competitive-candidate precedent based on the fact that Plaintiff Dummett was a write-in candidate. Or. Granting Sanctions, R.32, Page ID#489-
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in support of standing in the instant case, the District Court ignored this Circuits
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ID#489-510 at FN21; citing Or. Dismissing Compl., R.31, Page ID#496-488. Yet,
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to plead that he was campaigning in Tennessee, [or] that any registered voter in
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election. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 at 33,49.
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510 at 498. The Court stated that it was unaware of any precedent supporting
Having thus established that the instant case was a case of first impression,
circumstances, and found that attorney Irions advocacy amounted to more than
No order to show cause was ever issued to attorney Irion from the District
for sanctions was denied. See Plf.s Opp. Mot. Sanct., R.29, Page ID#391-413 at 391; Or. Granting Sanctions, R.32, Page ID#489-510. Finally, Plaintiffs motion to reconsider was denied without discussion of at least one of the substantive errors raised, due to the District Courts clear misconstruction of its own local rule. Or.
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B. Standard of Review
This Court has explained that Because 1927 is penal in nature, we believe
that it should be strictly construed. U.S. v. Ross, 535 F.2d 346 (6th Cir. 1976). The Second Circuit further explained, We recognize this power carries with it the potential for abuse, and therefore the statute should be should be construed narrowly and with great caution, so as not to stifle the enthusiasm or chill the
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Court. Attorney Irions written request for a hearing regarding Defendants motion
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the District Court then ignored precedent prohibiting attorney-sanctions under such
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candidate. Id.
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creativity that is the very lifeblood of the law. Mone v. C.I.R., 774 F.2d 570, 574
Advantage, Ltd. V. Sater, 465 F.3d 642, 646 (6th Cir. 2006).
abuse of discretion. Hall v. Liberty Life Ins. Co. of Boston, 595 F.3d 270, 275 (6th
legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact. Id.; citing Geier v. Sundquist, 372 F.3d 784, 789-90 (6th Cir. 2004).
In the instant case the District Court ignored applicable legal standards,
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misapplied the legal standards it asserted, and founded its decision on findings of
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Cir. 2010). Abuse of discretion occurs when the district court applies the wrong
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(2nd Cir. 1985); quoting Eastway Construction Corp. v. City of New York, 762 F.2d
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injure his campaign. Or. Granting Sanctions, R.32, Page ID#489-510 at FN21;
complaint alleged: Therefore, said actions would harm Plaintiff Dummetts ability
as filed in State Ct., R.1-2, Page ID#29-47 at 48; see also 33. The Courts
the ballot would in any way injure his campaign is simply a clear misstatement of the record. As such it represents a clearly erroneous finding of fact by the Court supporting a finding of abuse of discretion upon appeal. Hall v. Liberty Life Ins. Co. of Boston, 595 F.3d 270, 275 (6th Cir. 2010); Geier v. Sundquist, 372 F.3d 784,
reversed.
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While the instant appeal requests review only of the District Courts imposition of sanctions, the Courts errors in dismissing Plaintiffs complaint are relevant to the instant appeal because if the District Court erred in dismissing Plaintiffs complaint for lack of standing, then its finding that attorney Irion was more than negligent in his assertion of standing would necessarily be incorrect. In other words it is arguable that the Court should not have dismissed the Plaintiffs complaint at all. If the Courts dismissal was arguably an error, then its sanctions order is founded upon an error.
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789-90 (6th Cir.2004). For this reason alone the District Courts order should be
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to win the election to the office of President of the United States. 1st Amd. Compl.
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quoting Or. Dismissing Compl., R.31, Page ID#496-488 at 482. Yet, Plaintiffs
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failed to pleadthat President Obamas presence on the ballot would in any way
The District Courts first error was its factual finding that Dummett had
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The District Courts Order also states that Plaintiffs allegations were not specific enough, or were merely legal conclusions. Or. Dismissing Compl., R.31,
555, 560, (1992). While naked assertions devoid of further factual assertions will
Plaintiffs motion, are specific facts that the Drake Court found sufficient to
The fact pled in the instant case, that an ineligible candidate on the ballot will harm the competitive chances of the Plaintiff, includes no legal conclusions or assertions whatsoever. It is clearly not an assertion of law, but is an assertion of fact.
assertions. Additional facts pled supported the assertion, including the fact that
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Plaintiff Dummett was a candidate for the office of President, and that Dummett was registered with the Federal Election Commission as a Presidential candidate. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 at 31,32. Even if the facts found in Plaintiffs complaint were not specific enough to
support standing in the instant case, such failure should not have been
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This fact was also not a naked assertion devoid of further factual
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support standing. Id.; See also Drake v. Obama, 664 F.3d 774 (9th Cir. 2011).
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not support standing, the facts asserted in Plaintiffs complaint, and cited in
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601 F.3d 545, 552 (6th Cir. 2010); citing Lujan v. Defenders of Wildlife, 504 U.S.
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mischaracterized by the District Court as a complete failure to plead facts that were actually plead. At most the Court should have stated that the facts plead were not sufficiently specific to support standing.
It is ironic that the Court found attorney Irion more than negligent for
D. Competitive-Candidate Standing is Well-Established The District Courts order stated that attorney Irion should have known that Plaintiffs lacked standing to pursue their claims. Or. Granting Sanctions, R.32, Page ID#489-510 at 496. The Court concluded that attorney Irions actions were more than negligence or incompetence. Or. Granting Sanctions, R.32, Page ID#489-510 at 496; citing Hall v. Liberty Life Assur. Co. of Boston, 595 F.3d 270, 275 (6th Cir. 2010).
However, Attorney Irions assertion of standing was grounded upon wellestablished precedent: This notion of competitive standing has been recognized
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by several circuits. Drake v. Obama, 664 F.3d 774, 782-3 (9th Cir. 2011); citing Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H. 2008); Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586-87 & n.4 (5th Cir.2006); and Schulz v. Williams, 44 F.3d 48, 53 (2nd Cir. 1994). Allegations in the Plaintiffs complaint were
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and ACLU v. Natl Sec. Agency, 493 F.3d 644, 65657 (6th Cir. 2007). However,
To the contrary, the Ninth Circuit clearly held the opposite result: We reject the Postal Services argument that the potential loss of an election due to an unfair advantage for the opponent was an injury that was too remote, speculative and unredressable to confer standing. Drake v. Obama, 664 F.3d 774, 783 (9th Cir. 2011); quoting Owen v. Mulligan, 640 F.2d 1130, 1132 (9th Cir. 1981).
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least one Federal Circuit. Compare Or. Granting Sanctions, R.32, Page ID#489510 with Owen v. Mulligan, 640 F.2d at 1132.
As in the instant case, one of the Drake plaintiffs was a write-in candidate. See 664 F.3d at 782. While the Drake Court discussed the doctrine of competitivecandidate standing at length, that Court held that these plaintiffs claims were moot when the complaint had been filed. Id. at 784.
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In the instant case, the District Courts ruling that the Plaintiffs allegation of
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ACLU did not involve a candidate-plaintiff, and the Nader Court concluded that
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R.32, Page ID#489-510, citing Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008)
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The District Court also noted in its order of dismissal that the Plaintiffs
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The Drake Court also noted that the injury alleged was not the potential loss of an election, but rather was having a competing candidate that enjoys an
Schulz v. Williams, 44 F.3d 48, 53 (2nd Cir. 1994). Alternatively, the injury is the
F.2d 1028, 1030 (7th Cir. 1990). Such losses are far from speculative. Any
clear and immediate advantage over all other competitors, regardless of the
Finally, the District Courts insistence that Plaintiff Dummett is not a competitive-candidate, insults the Tennessee Legislature and Tennessee Election Code. The Tennessee Legislature has full authority to determine how candidates for President will be vetted for election in the State of Tennessee. U.S. Const.
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After this case was removed from Tennessee State Court, the District Court
refused to remand, despite the State of Tennessees interests in enforcing its State Election Code. Or. Denying Remand, R.18, Page ID#147-158. Then the District Court proceeded to determine that a candidate, as defined by Tennessee State law is not a good enough candidate to satisfy the Federal Court. Or. Granting
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candidate that is not held to the same laws and standards as other candidates has a
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loss of votes caused by increased competition. Id.; citing Fulani v. Hogsett, 917
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advantage by avoiding compliance with election laws. 664 F.3d at 783; quoting
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Sanctions, R.32, Page ID#489-510 at FN21. Then, the Federal Court proceeded to sanction attorney Irion for alleging that a candidate pursuant to Tennessee State
from another Circuit, proceeding to find that attorney Irion was more than
E. Standing for One Plaintiff Allows All Plaintiffs to Proceed The District Courts order granting sanctions focused first upon the standing of Plaintiffs other than Plaintiff Dummett. It concluded the Court finds that the allegations of standing made on behalf of Plaintiff Maroney are particularly frivolous and without merit. R. 32 at 8. Yet the Court disregarded the wellestablished fact that if only one plaintiff properly alleges standing, all plaintiffs may proceed with the lawsuit. Massachusetts v. EPA, 549 U.S. 497, 518 (2007).
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This precedent was pointed out to the District Court. R.19, Opp. Mot.
Dismiss at 8. Yet the Courts decision to sanction attorney Irion appears to be strongly rooted in the Courts apparent ire raised by standing allegations related to
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incompetent because he relied upon State Election law and precedent from a sister
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While the District Court certainly has authority to disagree with precedent
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plaintiffs other than Mr. Dummett.4 See Or. Granting Sanctions, R.32, Page ID#489-510 at 496-497.
alleged standing, then the District Courts dismissal of plaintiffs entire lawsuit
Irion would be an abuse of discretion founded upon an abuse of discretion. F. Abuse of Discretion by Refusing to Allow Amendment
The District Court also abused its discretion by refusing to allow Plaintiffs to file an amended complaint. If it is at all possible that the party against whom the dismissal is directed can correct the defect in the pleading or state a claim for relief, the court should dismiss with leave to amend. Brown v. Matauszak, 415 Fed.Appx. 608 (6th Cir. 2011); citing Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE 1483 (3d ed. 2010).
In the instant case the District Courts own orders dismissing Plaintiffs
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complaint and sanctioning attorney Irion established facts that the District Court Plaintiff Dummett is a member of Liberty Legal Foundation. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 30. Therefore, if Dummett has standing, then Liberty Legal Foundation also has direct standing. Massachusetts v. EPA, 549 U.S. 497, 518 (2007). However, even if Liberty Legal Foundation didnt have direct standing, the lawsuit may proceed with all of its plaintiffs, as long as one plaintiff properly alleges standing. Id.
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would be an abuse of discretion, and the District Courts sanctions against attorney
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would have considered supportive of standing. Or. Dismissing Compl., R.31, Page ID#496-488 at 482; Or. Granting Sanctions, R.32, Page ID#489-510 at FN21. Yet rather than allowing Plaintiffs an opportunity to amend, the District Court dismissed the case. Then the Court compounded its abuse of discretion by
lacked standing to pursue their claims. Or. Granting Sanctions, R.32, Page
What attorney Irion knew was that Plaintiff Dummett was campaigning in
Plaintiff Dummett in the State of Tennessee. Plf.s Mtn. Stay, R.34, Page ID#510519 at 515, FN1.
The District Courts failure to allow Plaintiffs to amend their complaint represents an abuse of discretion in dismissing Plaintiffs complaint without leave
order dismissing Plaintiffs complaint for lack of standing was arguably an error,
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then the Courts order sanctioning attorney Irion is an error founded upon an error. G. Abuse of Discretion by Clear Misconstruction of Its Own Local Rule
After the District Courts initial order granting sanctions was entered, the
Plaintiffs filed a motion to reconsider. Plf.s Mot. Reconsider Sanct., R.33, Page
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to amend. Brown, 415 Fed.Appx. 608; Geier, 372 F.3d at 789-90. If the Courts
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Tennessee and that registered voters in Tennessee intended to cast votes for
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ID#489-510 at 496.
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sanctioning attorney Irion, concluding that he should have known that Plaintiffs
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ID#502-509. Plaintiffs motion to reconsider raised, among other issues, the District Courts mistake of fact, as set forth in the instant appeal. Id. The District Courts denial of Plaintiffs motion regarding this issue was grounded upon the
Courts misconstruction of its own Local Rule. Or. Denying Mtn. to Recons., R.51,
The Courts order states: Local Rule 7.3(b) enumerates the only grounds
failure by the Court to consider material facts or dispositive legal arguments that
added).
The Courts order then concludes Plaintiffs cite the same decisional law previously briefed for the Court at the pleadings stage. This is precisely the type of motion for revision, one based on arguments already considered and rejected,
The Local Rule actually prohibits presentation of facts and argument that
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were not already presented to the Court, unless the new material is based upon a
change of law or the presenting party could not have known about the material. In other words, the Rule prohibits presenting new material to the Court, except under limited circumstances. If a party is arguing that the Court manifestly fail[ed] to consider facts or law, then the material must have already been presented. See
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were presented to the Court before such interlocutory order. Id. (emphasis
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Local Rule 7.3(b). Yet the Court denied Plaintiffs motion by applying an opposite standard than that set forth in its own rule. Or. Denying Mtn. to Recons., R.51, Page ID#682-690 at 688.
Based upon this clearly erroneous reading of its own rule, the District Court
The Court then noted Plaintiffs argument that the Court should have
The Court fails to see how this issue relates to the order on sanctions. Id. In other words, the District Court failed to understand that if it was an abuse of discretion to dismiss the Plaintiffs complaint in the first place, then taking the next step and sanctioning Plaintiffs attorney was necessarily an abuse of discretion of a higher
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abuse of discretion. Geier v. Sundquist, 372 F.3d 784, 789-90 (6th Cir. 2004). That error led the Court to ignore Plaintiffs attempts to point out the Courts previous errors.
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refused to substantively address the Plaintiffs assertion that the District Court
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H. District Court Denied Attorney Irion Adequate Due Process This Circuit recognizes that Due process, however, is a flexible concept and the particular procedural safeguards required will vary depending upon all the circumstances. Cook v. American S.S. Co., 134 F.3d 771 (6th Cir. 1998).
In the instant case the sanctions imposed upon attorney Irion were pursuant to a motion filed by the Defendants. Or. Granting Sanctions, R.32, Page ID#489510 at 496. Defendants motion asserted both violations of Rule 11 and 1927. R.25, Def.s Mot. Sanct. at 1. The District Court denied all Rule 11 allegations because the Defendants failed to meet Rule 11s safe-harbor provisions. Or. Granting Sanctions, R.32, Page ID#489-510 at 500. Plaintiffs requested, in writing, a hearing prior to the Court ruling on Defendants motion. Plf.s Opp. Mot. Sanct., R.29, Page ID#391-413 at 391. Yet the Court issued no show cause order, nor did it hold any hearing on the matter prior to finding attorney Irion more than negligen[t] or incompeten[t]. Or. Granting Sanctions, R.32, Page
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ID#489-510 at 501.
upon all the circumstances, the Plaintiffs assert that procedural safeguards were inadequate in the instant case. Attorney Irion filed a response to a motion for sanctions that failed to meet minimum procedural rules under Rule 11, and which cited 1927 only as an alternative authority. Several months later, and without any
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further notice, and without granting the requested hearing, the Court publically
errors, and refusal to allow attorney Irion to defend himself at a hearing, the
The District Courts order clearly establishes that its ruling on standing in
is aware of, no legal authority standing for the proposition that a write-in candidate
to challenge a rivals qualifications. Or. Granting Sanctions, R.32, Page ID#489510 at 498. This is the definition of a case of first impression. See Blacks Law
While this Circuit does not have an absolute rule prohibiting sanctions when
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an attorney advocates a case of first impression, it is clear that sanctions under 1927 are only appropriate when the claim is utterly unsupportable, worthless on their face, patently frivolous, or containing not a cintilla of legal merit. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370 (6th Cir. 1987); Mone v. C.I.R., 774 F.2d 570 (2nd Cir.1985);Ozee v. Amer. Council on Gift Annuities,
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who was not a political partys nominee for office could have competitive standing
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the instant case is a ruling of first impression: Plaintiffs have cited, and the Court
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procedural safeguards in this case did not meet minimal due process requirements.
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found that attorney Irion is more than incompetent. Considering the Courts errors
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Inc., 143 F.3d 937, 941 (5th Cir. 1998); United States v. U.T. Alexander, 981 F.2d
the enthusiasm or chill the creativity that is the very lifeblood of the law. Mone,
This is why only one of the cases cited by the Defendants in the Court below
impression. In that one case the 5th Circuit sanctioned the attorney because no
The instant case contains facts at the opposite end of the spectrum from those supportive of sanctions under such a standard. In the instant case the District Court sanctioned Plaintiffs attorney pursuant to 1927 for his advocacy of a reasonable extension of well-established precedent. 5 The facts plead were
774 (9th Cir. 2011). The Drake Court found these facts sufficient to support
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competitive candidate standing. Id. at 782-3. In the instant case the District Court distinguished Drake by citing factors
that neither the Drake Court, nor any other court, had actually based a ruling upon This error is even more egregious because attorney Irions advocacy was performed in support of enforcement of the U.S. Constitution, an area of law that for policy reasons, has the highest tolerance for creative advocacy.
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intentionally drafted to mirror the allegations found in Drake v. Obama. 664 F.3d
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litigant would dream of bringing it with a straight face. Ozee, 143 F.3d at 941.
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774 F.2d 570; U.S. v. Ross, 535 F.2d 346 (6th Cir. 1976).
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should be strictly construed, narrowly and with great caution, so as not to stifle
250, 253 (5th Cir. 1993). This precedent accurately reflects that 28 U.S.C. 1927
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in relation to the standing issue. Or. Granting Sanctions, R.32, Page ID#489-510 at 498. Making these factors even less supportive of sanctions, the Drake Court did discuss competitive-candidate standing in relation to a write-in candidate, and that
Court would have found standing had the case not been moot. 664 F.3d at 782-3.
favorably, but no Court had ever explicitly ruled upon. This hardly rises to the
standing to challenge a competitors qualifications, and that there is precedent favorably discussing such an assertion, means that Plaintiffs attorney would be granted qualified immunity if he was a government employee being sued for violating someones constitutional rights. The District Courts grant of sanctions
constitutional cases worse off than government employees that actually violated
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citizens constitutionally protected rights. This cannot possibly be what this Circuit intended when it said that 1927 should be narrowly construed. As the Second Circuit warned, such abuse of 1927 will stifle the enthusiasm or chill the creativity that is the very lifeblood of the law. Mone v. C.I.R., 774 F.2d 570, 574 (2nd Cir. 1985); quoting Eastway Construction Corp. v. City of New York, 762 F.2d
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243, 254 (2d Cir.1985). In fact, if the District Courts order is not reversed, soon
in the Sixth Circuit reflects an attorney ever being sanctioned for advocating a
attempting to extend precedent in an area that is supposed to be a haven for vigorous advocacy. See U.S. v. Ross, 535 F.2d 346; Mone v. C.I.R., 774 F.2d 570. CONCLUSION
For all the reasons discussed above, the Plaintiff-Appellants request that this Court reverse the District Courts grant of Defendant-Appellees motion for
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sanctions. Alternatively, the Plaintiff-Appellants request that this Court remand this case and order the District Court to hold an evidentiary hearing on Plaintiffs motion to reconsider, and issue an order addressing the substantive errors asserted in said motion. Dated: 8th of Adar, Year of our Lord 2013 (a.k.a. February 19, 2013)
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construed and applied with great caution, in order to sanction an attorney for
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no litigant would dream of bringing any case asserting enforcement of the U.S.
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__s/Van R. Irion______ Van R. Irion Law Office of Van R. Irion, PLLC 9040 Executive Park Drive, Ste. 223 Knoxville, TN 37923 Attorney for Plaintiff/Appellants (865) 809-1505
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Certificate of Compliance Pursuant to FRAP 32(a)(7)(C) the undersigned certifies that this brief complies with the type limitations of these Rules.
2. The brief has been prepared in 14-point Times New Roman typeface using Microsoft Word for Windows.
3. If the Court so requests, the undersigned will provide a copy of the word or line printout.
4. The undersigned understands a material misrepresentation in completing this certificate of the FRAP 32(a)(7)(B)(C) and Sixth Circuit Rule 32(a), may result in the Courts striking the brief and
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the brief contains no more than 14,000 words in its entirety. Exclusive
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CERTIFICATE OF SERVICE It is hereby certified that on the 8th of Adar, Year of our Lord 2013 (a.k.a. February 19, 2013), a copy of the foregoing Appellants Brief was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. _s/Van R. Irion_________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiffs (423) 208-9953
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DESIGNATION OF RELEVANT COURT DOCUMENTS Record Entry R. 1-2 R.12 R.13 R.18 R.24 R.24-1 R.24-2 R.29 R.31 R.32 R.33 R.34 R.51 R.53 R.54 Description of Item 1 Amd. Complaint filed in State Court
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Mot. to Remand Memo in Support of Mot. to Remand Or. Denying Remand Mot. for Leave to File Supp. Resp.
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Or. Denying Mot. to Reconsider Sanctions Or. Granting Fees Judgment Notice of Appeal
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R.55
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304 710 711
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122-127 147-158 293-294 295-303 391-413 469-488 489-501 502-509 510-519 682-690 693-709