Alphonse Faggiolo Pinned Messages

I saw AF posted a suggestion of yours re: the recent Loper Bright (Chevron’s tombstone) ruling to his Pinned channel. If I might be so bold, take a look at the Jarkesy opinion, where admin agencies have been informed they cannot take property from the people outside a finding from an actual trial by jury setting, per the federal 7th amendment. https://www.supremecourt.gov/opinions/23pdf/22-859new_kjfm.pdf

Death of Chevron https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf

I think you should mention Loper requires the Courts to view if you are in administrative remedy correctly or use the Art 3 courts

In sum, motions to dismiss are simply tools to dismiss lawsuits where the complaint has some kind of legal defect. They are not to be used to determine the truth or merits of allegations or defenses to those allegations, despite that some corrupt judges or lawyers may try to use it for that purpose anyway. If they do and the court dismisses the suit when there are still jury-triable disputed issues of fact that need to be decided, the remedy is reversal on appeal. If a court refuses to rule on a motion within a reasonable amount of time (which is typically determined by local rules and/or common sense), the remedy is a writ of mandamus from an appeals court to force it to rule.

A judge may try to determine the truthfulness of facts and weigh the evidence on a motion to dismiss without holding discovery of facts or trial by jury, by "embracing allegations that one reasonably might classify as factual and therefore potentially jury triable." 159 § 1216 Statement of the Claim—Significance of “Claim for Relief”, 5 Fed. Prac. & Proc. Civ. § 1216 (4th ed.). If a judge does this and dismisses the case by attempting to determine the truth when there are disputed facts, then the remedy is to appeal the decision since the court unlawfully denied trial by jury. For example, denial of jury trial happened throughout COVID as courts dismissed lawsuits against COVID mandates by determining that a pandemic justified COVID measures, when that is a question for a jury to decide if discovery does not conclusively show that the government violated the law. That is the basis of my lawsuit, which is now in the Ninth Circuit Court of Appeals (see Behringer v. California Polytechnic State University; et al. C.A. 9 Case Number 23-4162, originating Case Number 5:23-cv-00934-JFW-SK; also available at https://drive.proton.me/urls/PX85JCDD44#pfXwy2cOtMDA.) As for the amount of time it should take a court to respond to a motion to dismiss (or to any other filing submitted to the court, for that matter), there is no universal standard for the amount of time they should take, but they cannot sit on the motion forever. It is true that a motion to dismiss does extend the time to file an answer to a complaint, because a "[m]otion to dismiss may be filed any time before the responsive pleading is filed." Sun Microsystems Inc. v. Hynix Semiconductor Inc., N.D.Cal.2007, 534 F.Supp.2d 1101. In addition, a "[d]efendant has the right to challenge the legal sufficiency of the complaint's allegations against him without first subjecting himself to discovery procedures." Greene v. Emersons, Ltd., S.D.N.Y.1980, 86 F.R.D. 66. Since discovery procedures to obtain evidence take place after defendants formally answer the complaint, a pending motion to dismiss must be ruled on by a court before defendants can be compelled to file an answer and be subjected to discovery. If a court is taking forever to rule on a motion to dismiss, there are remedies to force it to rule. Courts, both state and federal, generally prescribe local rules regarding time limits on ruling on motions. For example, in the Central District of California, Local Rule 83-9.1 requires that all federal judges take no longer than 120 days to rule on a submitted motion. If they break this rule, the parties are advised to notify the Chief Judge of that court. If the trial court refuses to cooperate for some reason, the next step would be to petition the relevant appellate court for a writ of mandamus to force the lower court to make a ruling or decision. When a writ of mandamus is specifically used to expedite court proceedings, this is also known as a writ of procedendo. "Procedendo is a high-prerogative writ of an extraordinary nature. Generally, it is defined as an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment in a case, without attempting to control the inferior court as to what the judgment should be. A writ of procedendo, or of mandamus, is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment." 62B Am. Jur. 2d Procedendo § 1.

Alphonse 12(b)(6) motions are so popular for government defendants because it allows them to raise legal defenses without having to respond to the facts in the complaint. "A party whose Fed. R. Civ. P. 12(b) motion to dismiss is sustained is spared the trouble of responding to the claim and preparing for a trial on the merits." § 62:417. Fed. R. Civ. P. 12(b) motions to dismiss, generally, 27A Fed. Proc., L. Ed. § 62:417. Courts have a tendency to side with government defendants and keep the status quo going. So, they will tend to grant motions to dismiss complaints when they shouldn't be doing so. That is why it has become an entrenched practice for government defendants to use 12(b)(6) motions to respond to complaints instead of going straight to an answer. Once the government defendant loses the 12(b)(6) motion, then they are required to answer, but the government rarely has anything to lose by filing the 12(b)(6) "failure to state a claim" motion before having to answer, which is why government defendants basically always file one if they are sued. But "Failure to state a claim" 12(b)(6) motions are not inherently bad practice. They are simply a way of telling the court that "we don't need to argue the merits of these facts in the complaint" because of some overarching legal issue that precludes the lawsuit, such as the complaint being impossible to understand because it was written in purple crayon or that the court does not have personal jurisdiction because plaintiff does not have the legal capacity to bring the lawsuit (for example if the plaintiff was 16 years old and cannot bring a lawsuit alone as a minor below the legal adult age of 18). A motion to dismiss is purely for issues of law, such as the jurisdiction of the court. It is not a tool for the court to address determine the merits, or the truthfulness, of any allegations of fact. "A motion to dismiss for the failure to state a claim is intended to test the legal adequacy of the complaint, and not to address the merits of any affirmative defenses, and an affirmative defense may only be considered if it clearly appears on the face of the complaint." 61A Am. Jur. 2d Pleading § 429. "The court's task in ruling on a motion to dismiss for the failure to state a claim upon which relief may be granted is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence that might be offered in support thereof." 20 61A Am. Jur. 2d Pleading § 476. Sometimes lawyers try to use a 12(b)(6) motion to dismiss to make arguments that the allegations in the complaint are not true, and that a judge should dismiss on that basis. But this is an attempt to abuse a motion to dismiss to argue the merits, or the truthfulness of the facts alleged in a complaint. A judge is not allowed to judge the truthfulness of the facts alleged in a complaint when deciding a motion to dismiss, because only juries are allowed to weigh evidence and determine truth. "Even if it is doubtful that the plaintiff would ultimately prevail, if the plaintiff colorably states facts that, if proven, would entitle the plaintiff to relief, a motion to dismiss for the failure to state a claim should not be granted." 5 61A Am. Jur. 2d Pleading § 472. “It may be that plaintiff cannot win [a] lawsuit before a jury. The mere fact that the trial judge conceives this to be true does not endow him with authority to take the place of the jury and decide hotly contested issues of fact.” Cox v. Eng.-Am. Underwriters, 245 F.2d 330, 333 (9th Cir. 1957).

If You Don’t Ask, You Might Not Receive: Requests For Discovery Concerning The Existence Of Personal Jurisdiction - Boston Bar Association https://bostonbar.org/journal/if-you-dont-ask-you-might-not-receive-requests-for-discovery-concerning-the-existence-of-personal-jurisdiction/

THE PATH OUT OF 12b (1-7) ABUSE: The playbook for attorneys unable to answer lawsuits and judges not wanting to make decisions in politically unpopular lawsuits that have major economic ramifications for all the 50 states comprising the United States is to throw a 12b motion against the wall, completely unsupported with any factual basis or records to support their motions. They reach and cite vague DOCTRINES, many of which have completely different interpretations depending on which district and circuit court your lawsuit is filed. The judge, wanting to stay off of the hot seat, for professional and political reasons, usually grants these 12b motions while citing abysmal case law to support his escape hatch out of your lawsuit. The more I read and study JURISDICTIONAL DISCOVERY it appears it's a tactic with real teeth, rarely used by attorneys, and when plead properly, it especially attacks the core of the attorney's rule 12b(1) motion to dismiss. As us that have property tax lawsuits filed have experienced, we're being deprived of due process by the filing of these frivolous 12b(1) motions. The playbook being run across the country is to abuse the 12b process by having the attorney instinctively file a 12b(1) motion, having the effect of suspending the lawsuit for 6 months to a year on average, depriving the plaintiff of a required answer, and depriving the plaintiff of discovery, which is where most all lawsuits GO TO DIE! If the defendants actually file an answer to the plaintiff's lawsuit instead of settling the lawsuit, the diligent plaintiff can use the 5 discovery tools to pummel the defendant and their incompetent attorneys and force the defendants to the settlement table for various reasons, to avoid having to face a jury trial. Jurisdictional Discovery is a formal request made through motion requesting the court to issue an order permitting both parties to conduct discovery regarding discovery one issue is Jurisdiction. It's also a great point for the appellate court to consider should the district court abuse its discretion and deny your motion. As long as the motion isn't frivolous and is supported by law and facts, the district court will have a problem denying your motion, and like I stated, if we can get them to the discovery stage for any part of the suit, we will pummel and expose them! In the most simplistic light, you have attorneys with NO PERSONAL KNOWLEDGE making blatant legal conclusions without anything to support their pleadings, claiming that the court lacks Jurisdiction to hear the plaintiff's lawsuit. Jurisdictional Discovery is saying to the court, OK JUDGE, PUT US BOTH IN THE RING AND LET US FIGHT OUT THIS JURISDICTION ISSUE, AND LET'S SEE WHO IS STILL STANDING WHEN THIS LIMITED DISCOVERY PROCESS IS COMPLETE!

NEW: Here is the second opinion of the day from the Supreme Court. It is a 6-3 decision delivered by Chief Justice Roberts. Justice Kagan filed a dissenting opinion, in which Sotomayor and Jackson joined. The case is called Loper Bright Enterprises v. Raimondo. The Court has overruled the Chevron doctrine. Here is a link to the opinion: https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf

In order to meet the Minimum Contacts Standard for an in-rem action in the forum state: “To comply with the due process clause, all assertions of state court jurisdiction, including in-rem and quasi in-rem actions, must be evaluated according to the minimum contacts standards set forth in decisions regarding in personam actions; the presence in the state of property alone will not support the state’s jurisdiction where the property is unrelated to the cause of action.” Shaffer v. Heitner, 433 US 186, 53 L Ed 2d 683, 97 S Ct 2569. “However, we can find certain guidelines which aid in the factual analysis necessary to make the determination of whether the requisite “minimum contacts” are present in a given case. First, the defendant must have purposefully availed itself of the privileges of acting within the forum state thus invoking the benefits and protections of its laws.” Hanson v. Denckla, supra. “Secondly, the cause of action must arise from defendant's activities within the forum state.” See Southern Mach. Co. v. Mohasco Indus., Inc. 401 F 2d. 374 (6th Cir. 1968); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F. Supp. 550 (D.Conn.1968). “Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable.” International Shoe Co. v. Washington, supra; see Southern Mach. Co. v. Mohasco; In Flight Devices Corp. v. Van Dusen Air, Inc. 466 F.2d 220 (6th Cir.1972); Kourkene v. American BBR Inc., 313 F 2d. 769 (9th Cir. 1963)