Appealing an Order Ignoring a Motion to Dismiss

[Arazu Toth]

My question involves court procedures for Federal Court (9th Circuit)

Can one pursue an interlocutory appeal against a court Order (which was denied reconsideration without explanation) that denies a Motion to Dismiss counterclaims which do not meet any legal standards?

Here's the situation. Person A sues Person B. Person B fabricates a set of counterclaims which don't meet the elemental requirements in any capacity. Person A files a Motion to Dismiss (MTD) these counterclaims. Judge ignores and denies the MTD with no explanation and also denies the motion for reconsideration. Now Person A is subject to invasive and improper discovery related to claims which do not meet the legal standard (i.e. Person A shouldn't be subject to trial for Person B's claims).

My understanding is the courts use Fed.R.Civ.P 54(b) to justify the validity of an Interlocutory Appeal; the question is how does one argue the pursuit of false claims ordered by a judge who doesn't follow the law warrants consideration by the appeal process?

[tex11]

The likelihood of your complaint being granted a hearing on an interlocutory appeal is almost zero.

Unlike a normal appeal, the decision on whether or not to hear your complaint is entirely discretionary.

Given your issues do not fall under "extraordinary", at least to an appeals court, the petition will simply be denied without further ado. As by far most are. Review the stats in your area to get an idea of what percent interlocutory appeals filed are actually heard. Then figure the odds of a pro se being heard on an interlocutory appeal are considerably lower than that.

[Arazu Toth]

I understand the "reality" of what you are saying, but the question still remains; from a legal perspective, how does one put an end to frivolous claims which don't even meet the legal standards or required elements? The idiot/corrupt judge who is mishandling the case has an extensive history of such behavior (TBH not even sure how he's still on the bench). So I'm trying to find a proper legal avenue to stop what he refuses to dismiss. Waiting until end of trial defeats the purpose of putting a halt to improper claims (i.e. the goal is to stop them before discovery, etc). I figured the court of appeals would be the logical answer.

[tex11]

You are asking a question you already know the answer to.

From a legal perspective your only recourse is the federal court of appeals. If they ignore your case, as a practical matter it is over and done with. Fini, kaput

Federal judges are the most omnipotent judges with lifetime tenure, and can only be removed by impeachment and conviction by Congress. And grounds for impeachment do not include bad rulings...

[Arazu Toth]

So it appears the "system" prohibits one from using the court of appeals to put a stop to frivolous or sham-based claims during the litigation process. So here's another question: if a litigant is forced to go through discovery and spend time fighting claims which are simply dropped or "completely fail" at trial, what sort of remedy/justice can the litigant seek after the trial has concluded? (keeping in mind pro se litigants cannot be reimbursed for their time spent on a case)

It's one thing to fight legitimate claims and win in court; it's another to be forced to fight claims which never should have survived dismissal and win against those (because they are sham or frivolous). With the latter, what action can one take after trial has concluded to pursue some sort of compensation-based remedy?

[Mr. Knowitall]

From another perspective, it could be said that the rules prevent litigants from wasting the appellate court's time and resources with appeals that, in the eyes of the appellate court, can be handled along with any other appealable issues at the conclusion of the lower court proceedings.

If you think you meet the standard for having your interlocutory appeal heard, nothing is stopping you from giving it a shot.

[cmre3456]

It is frustrating for sure when a judge ignores valid motions. We've all had it happen.

Are they asking for documents or for testimony? How clever are you at not having documents, or not recalling answers to questions? That's remembering that they can file a motion to compel and then have you held in contempt, so you have to be very careful.

If the counter claims are simply vindictive, and don't claim all of the elements for each cause of action, they'd have a very hard time obtaining discovery from me. They'd get what I couldn't avoid at all under the law, but I wouldn't make it easy.

Remember, when questioned in writing or at a deposition, there's not much they can do about "I don't recall."

Good luck.

[Arazu Toth]

From a legal perspective, it seems to me it's not possible to use the Court of Appeals (Federal) to appeal the order from a bad judge who gives the green light for improper or sham-based claims. This results in costs and resources which the Counterdefendant must now handle and will never be reimbursed for (as pro se litigants cannot seek 'attorney fees'). This seems to be a broken part of the system as there's no real remedy "after the fact" that I'm aware of.

I've found much of litigation is to drain the opponent financially and even emotionally; frivolous counterclaims do exactly that, and if the court of appeals refuses to address failures to dismiss these types of counterclaims, the Plaintiff who was seeking justice is now locked into an additional drain, which is VERY problematic if the Defendants (now counterclaimants) have a ton of cash.

Their goal is to set up a 8-hour deposition and incur the costs of a lawyer, travel, and missing time from work. It'll be thousands of dollars; all to participate in their BS discovery with their BS claims. That's the core problem, and it appears the Court of Appeals won't provide any means of addressing such an issue.