Tips to survive a motion to dismiss

Also See Motion To Recuse From 2 RI Governors

http://caught.net/prose/badjudge.htmTo survive a Rule 12(b)(6) motion to dismiss make sure to detail the violation:

US CODE which was violated

Date/Time of the violation

Location of the violation

Person(s) who violated the US Code

Witness(s) if any

Proof

Relief you are asking for

Separate all violations.

In my opinion if you explain the violation(s) in detail you have a much better chance of surviving a motion to dismiss.

I won a 12 (b) 6 motion to dismiss against an attorney in August of 1999. I stated a legal claim upon which relief could be granted and introduced the Official Record as evidence in the case. And here we are 18 years later going on 19 years and it still stands, I made a legal claim upon which relief could be granted.

"Determination of whether a Complaint survives a motion to dismiss requires a two-part analysis. Folwer v. UMPC Shadyside, 578 F.3d 203, 210 (3d. Cir. 2009). First, factual and legal elements of the complaint must be separated. Folwer, 578 F.3d at 210. All well-pleaded facts must be accepted as true, but legal conclusions may be disregarded. Id. at 210-11. Second, the Court must determine whether the plaintiff's complaint articulates "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This context-specific task requires the "reviewing court to draw on its judicial experience and common sense." Id. at 679."

From Hon. Arpert in US DC Trenton NJ.

2013 UPDATE: We are hearing reports from all over the country that judges now are RARELY recusing regardless of the validity of the complaint.

According to Congress, U.S. Supreme Court case law and Rhode Island's canons of judicial ethics, a judge must bow out of hearing any case in which his or her impartiality might reasonably be questioned. The Rhode Island Canons of Judicial Conduct say that judges must avoid all impropriety and appearance of impropriety."

"The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired."

Consider using this wording when moving for recusal. Also consider using specific examples of judicial misconduct that you experienced to back up your assertions citing actual clauses violated in the rules of judicial conduct. Also, requests for recusal should be in the form of a motion.

In many areas if there is a VALID complaint of judicial misconduct filed with, or being processed by, the local judicial disciplinary board, one has a better chance of successful recusal at hearings FOLLOWING the filing of the complaint.

KNOW THIS: The grass might NOT be greener on the other side!

Please read the email received regarding recusal at the end of this motion. It is very informative but, we believe, outdated.

State of Rhode Island

______________ Court

__________________ SC

_________________________

Defendant

vs.

_________________________

Plaintiff

Case Number: _________________

MOTION TO RECUSE

Now comes the above named, ________________________ and moves to recuse Judge _______________________ from the above entitled matter under 28 USCS Sec. 455, and Marshall v Jerrico Inc., 446 US 238, 242, 100 S.Ct. 1610, 64 L. Ed. 2d 182 (1980).

"The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law."

The above is applicable to this court by application of Article VI of the United States Constitution and Stone v Powell, 428 US 465, 483 n. 35, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976).

"State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law."

Also see RI Supreme Court Article VI and Canons 1, 2, and 3.B.6. [Replace with your local citations]

The above mentioned Judge has in the past deliberately violated other litigant's personal liberties and/or has wantonly refused to provide due process and equal protection to all litigants before the court or has behaved in a manner inconsistent with that which is needed for full, fair, impartial hearings.

The United States Constitution guarantees an unbiased Judge who will always provide litigants with full protection of ALL RIGHTS. Therefore, Petitioner respectfully demands said judge recuse themselves in light of the evidence attached as Exhibit 1 detailing prior unethical and/or illegal conduct or conduct which gives Petitioner good reason to believe the above Judge cannot hear the above case in a fair and impartial manner.

[Attach Caught cases or other evidence dealing with this judge as Exhibits.]

Note: In Rhode Island it is customary for a judge to recuse himself if there is a complaint pending with the state's Commission on Judicial Tenure and Discipline. Check your area and jurisdiction. There are 2 factors to consider.

• 1. Once a Judge starts to stink it usually always gets worse.

  2. The grass might NOT be greener on the other side

While you may get a resistant judge to recuse by filing a valid complaint with the Commission on Judicial Tenure and Discipline just prior to your hearing for recusal, the complaint and the recusal must be for valid reasons other than personal dislike for a judge. Judge shopping is strongly frowned upon. Also, be prepared to be shocked to find out how much latitude is given in the area of judicial conduct. Fasten your seatbelt and read this page for examples.

An informative (but we believe outdated) email regarding recusal from avoice@mtangel.net

Yes, we have recused many judges, fourteen at a time many times, and for other peoples cases, too. Four federal judges and three who recused themselves. The state has brought twelve cases against us in the past two years to silence us, but we will not be silenced. Instead you expose them......on the Record, In their courtrooms.

The main thing that backs them down for us is the major heat we have on the system in Oregon that none of them will touch us now the last couple of months. We have been attacked for more than three years, and went through two years of unbelievable sham hearings, trials, jury trials - we've seen it all by now. I have learned every judge /attorney diversionary tactic in their little book by now So, we go in with a list of judges who we will not go in front of. Sometimes they are whores and refuse to get off the bench, and then they conduct blatantly corrupt proceedings that have made our racketeering case for us right on the record. They have called in more than twenty judges on us, usually out of county, plus the seven federal judges who would not touch our federal Complaint. All of this is in the Ninth Circuit and the Oregon Supreme Court. We recused the Oregon Chief Justice two years ago, and he signs off "CJ Carson not participating".

So you asked how to do this - first of all, it has to be in writing. EVERYTHING has to be in a document and then also spoken on the Record in the courtroom. You bring in a crowd, or at least some people - Public Opinion is all that elected officials fear . In Oregon, there is a statute that "allows" you to recuse two judges "for cause", and you can use this. I think other states are similar. You make a written Motion, and you spell out in a paragraph or two the corrupt things the judge has done, name names, events, etc. Don't go on too long - hit on the judicial rights violations he committed against you like not providing discovery, refusing to allow your witnesses, withholding evidence for your defense, refusing to answer questions, whatever. And go file it in your case number at the court.

This is also a good way to get corrupt info on the judge into the Record , because even if he denies your motion, it is on the Record him denying it IF you make sure that you talk to him about it ON THE RECORD OUT LOUD. This is what usually does not happen - the judge will say "I have your motion and it is denied" often without even saying that it is a motion to recuse. You say "My Motion to Recuse??" Now, he is mad already so you start to read your motion out loud, as you have an absolute right to make a public record. If he is backed down by your angry crowd, he will sit back, enraged but silent, red faced, and let you read your corrupt judge facts that are in your motion against him. Usually, though, he will stop you. He will try to smile at the audience and say to you "I can read, Mr. Beresford, and you do not need to read it to me" and we say "No, I am reading it out loud so these people here can know what is going on". NOW the judge is really mad, not even trying to hide it - ordering you to stop reading. You keep reading it....even talking over him sometimes to get it out. Then we say "I have the right to appeal your decision on My Motion, and so I have the right to make an "offer of proof" (magic words) for my appeal".

NOW - he knows that you have this absolute right to the offer of proof, where you can make statements or read a motion or testify in your own behalf for the appellate Record. So In our experience, he may or may not. Our most classic response after this scripted play we go through over and over, a Senior judge William O Lewis stated on the Record as he shook his finger and yelled "I deny you the right to make an offer of proof BECAUSE FACTS ARE NOT AN ISSUE" and he ran out the back of the courtroom. He forgot the Record was still on, so I continued to read my Motion into the Record. Back he came, around and around we went, and finally my husband and I and our crowd left the courtroom which we do when they conduct sham proceedings against us. We all walk out. We say what we need to say and we leave. Sometimes they continue, sometimes not. Then we get the record and we appeal everything they do. We are making a commercial from the videotape of him making this statement, shaking....its' great. They are complete FOOLS when challenged. They are so blatantly corrupt! I have had judges on the witness stand too and that is GREAT FUN making them answer questions! They NEVER answer our questions. They are completely unaccountable. One Attorney General motion to the federal case said "even if a judge is alleged to be corrupt, he is immune from the decisions he makes in his court ! So - you never know what they might do.

Those are some of our experiences - the bottom line is that in a way, if you turn it against them, it doesn't matter if they insist on not recusing themselves. It is a definite conflict of interest to stay on a case having a conflict of interest as you spell out in your Motion. So he is committing Deprivation of Right of Due Process against you as he is doing it, and we just say to them ON THE RECORD "I know you are corrupt, and I can't stop you, you are a tyrant and you have the guns, so just go ahead and do the nastiest thing you intend to do, and I will appeal it, and be sure that the whole world sees what you are doing. Let's proceed with the trial." And they make our racketeering evidence for us, blatantly and criminally depriving our rights and cover for each other to protect their asses as they go. We do this Sui Juris. [See Caught page on invalid legal arguments]

It will not happen with an attorney, but our fellow advocates who have been arrested and persecuted have also successfully recused our list of judges for their involvement in our cases. So it does work, but you have to be tenacious, stay within the law, and realize that you can appeal EVERYTHING they do. I don't care what some rule they wrote for themselves allows them to do, We REFUSE to acknowledge their "imagined immunity" and their process "confusion of case law and conflicting legal theories." It is a facade, they KNOW IT.

It is like firing the attorney - the judge says you "can't", and you say "I JUST DID", and you have a document where you are firing the attorney and that is that. You have to back them down insisting on demanding your rights and again, the crowd insures they are being watched.

Pamela Gaston, Co-director A Voice For Children and President Oregon Judicial Watch

FOOD FOR THOUGHT

Many times the reason or purpose for events in our life initially escapes us,

but I am certain we can find reason and/or purpose in everything that happens!

It takes a short time to learn to exercise power, but a lifetime to learn how to avoid abusing it.

We are no longer a country of laws, we are a country where laws are "creatively interpreted."