Appellate Law

CA1: unless discretion is exercised, the court can't review the discretion

By S. COTUS

Beetz v. Ambrosi, No. 07-2449 (unpublished).  This is ugly.  The court told the plaintiff to amend his complaint to comply with FRCP 8 and 9(b).  After the initial attorney withdrew, he asked for ?at least? 30 days.  An electronic order was entered that said ?granted.?  He seems to have complied with that. However, ?but due to some apparent docketing irregularities, the amended complaint was not entered on the electronic docket until some months later.?  Obviously one side says ?granted? means ?30 days? and the other side says it means ?zero days.? 

The defendants also argue that the new complaint had the same defects.  But the First isn't going there because it concludes that ?We cannot affirm on the basis of a discretion that the district court did not exercise.?  This is an important thing to file away.

So, it is back to the District Court.

Full post as published by Appellate Law and Practice on July 28, 2008 (boomark / email).