[00:00:00] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:02] Speaker 03:
My name is Kyle Zimnick, and I represent Appellant Ileana Fisher.

[00:00:06] Speaker 03:
This Court found in Henderson that dismissal is a harsh penalty and is to be imposed only in extreme circumstances.

[00:00:13] Speaker 03:
Those circumstances are limited.

[00:00:15] Speaker 03:
Either a party deserves to lose on the merits, or a party deserves the extreme punishment of dismissal.

[00:00:21] Speaker 03:
But neither of those things was true of Ms.

[00:00:23] Speaker 03:
Fisher.

[00:00:24] Speaker 03:
Yet the Court below dismissed her case with prejudice.

[00:00:27] Speaker 03:
So this Court should reverse that order.

[00:00:29] Speaker 03:
To this end, we offer three arguments.

[00:00:31] Speaker 03:
First, that the lower court's granting of a Rule 12 dispositive motion based solely on the failure to file a response violates the federal rules of civil procedure and this court's precedent.

[00:00:42] Speaker 03:
Secondly, that under this court's five-factor test for dismissal, the lower court's order was an abuse of discretion.

[00:00:48] Speaker 03:
And finally, as to the merits, that Ms.

[00:00:51] Speaker 03:
Fisher's complaint stated a claim of plausible copyright infringement.

[00:00:56] Speaker 03:
To the first argument, the lower court's application of its local rule.

[00:00:59] Speaker 03:
The lower court didn't just dismiss Ms.

[00:01:01] Speaker 03:
Fisher's complaint.

[00:01:02] Speaker 03:
It granted a substantive motion for judgment on the pleadings filed by Ms.

[00:01:06] Speaker 03:
White.

[00:01:07] Speaker 03:
This court has laid out exactly what the standard is for a 12C motion like that.

[00:01:12] Speaker 03:
In Greg versus Hawaii Department of Public Safety, this court found that if taking all the allegations in the pleading as true, the moving party is entitled to judgment as a matter of law.

[00:01:22] Speaker 00:
Let me ask you one question I have about this line of argument

[00:01:29] Speaker 00:
It seems that there are actually textual differences between Rule 56 and Rule 12 that are also reflected in the advisory committee notes.

[00:01:39] Speaker 00:
And so how are we to account for that difference?

[00:01:43] Speaker 03:
Yes, Judge Koh.

[00:01:44] Speaker 03:
I would look to this court's interpretation of Rule 12C and the text of Rule 56.

[00:01:48] Speaker 03:
I believe that's the other rule you're referring to here.

[00:01:50] Speaker 03:
And they're extremely similar.

[00:01:52] Speaker 03:
Rule 56 ends the test for summary judgment ends by noting that the movement must be entitled to judgment as a matter of law.

[00:01:59] Speaker 03:
And the same is true under Greg for Rule 12C.

[00:02:02] Speaker 00:
And because that standard is the same, this court can determine whether- No, that standard is not in the text of Rule 12.

[00:02:10] Speaker 00:
And the advisory committee notes for when Rule 56 was amended,

[00:02:17] Speaker 00:
You know, so prior to 2010, Rule 56 said that if the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

[00:02:29] Speaker 00:
And that language was specifically changed to that the court may grant summary judgment if the motion and supporting materials, including the facts considered undisputed, show that the movement is entitled to it.

[00:02:42] Speaker 00:
And then the note says specifically summary judgment cannot be granted by default, even if there's a complete failure to respond to the motion.

[00:02:50] Speaker 00:
So those changes made in 2010, both to the text of the rule and the notes, none of that is in Rule 12.

[00:02:58] Speaker 03:
That's true, Your Honor.

[00:02:59] Speaker 00:
Yeah, so how are we supposed to account for those textual differences and the differences in the notes?

[00:03:04] Speaker 03:
Well, Your Honor, first of all, those advisory committee notes and the text of Rule 56 are not the only reasons why all circuits have held that Rule 56 motions can't be granted simply for a failure to file.

[00:03:17] Speaker 03:
It's because of the posture and because of the substantive standard that is set forward in Rule 56.

[00:03:21] Speaker 01:
But then doesn't 12D put the posture of B6 and C on the same footing different from Rule 56?

[00:03:33] Speaker 03:
Your Honor, that's right.

[00:03:34] Speaker 03:
It is on a different footing.

[00:03:35] Speaker 03:
And we're not arguing that Rule 12C and Rule 56 are identical.

[00:03:38] Speaker 03:
Obviously, they do have different standards.

[00:03:40] Speaker 01:
But it seems like 12D is best read as distinguishing both 12B6, which is controlled by Ghazali.

[00:03:48] Speaker 01:
I think you'll have to concede that.

[00:03:50] Speaker 01:
And 12C are

[00:03:53] Speaker 01:
are separate for purposes of we don't need anything more.

[00:03:56] Speaker 01:
The court can do this in this posture, distinguishing it from Rule 56, because if 12b6 and 12c do present something that resembles summary judgment, only then, and that I don't understand is an argument you're making, only then is it converted to a 56th where Ghazali would not apply and Henry comes in, right?

[00:04:20] Speaker 03:
Your Honor, we can test that Ghazali controls Rule 12b6 motions.

[00:04:24] Speaker 03:
That case never affirmatively held that failure to file a response to a Rule 12b6 motion did not constitute a violation of the federal rules or of this circuit's precedent.

[00:04:34] Speaker 03:
In the explicit circuit split over whether 12b6 motions are considered to be granted, be able to be granted just solely on a failure to file a response, courts have stepped in explicitly to say whether or not

[00:04:47] Speaker 03:
that the rule is violated.

[00:04:48] Speaker 03:
And, Ghazali, that didn't happen.

[00:04:49] Speaker 01:
Well, what are we supposed to do with that, then, because it clearly is the holding that 12b6 can be dismissed in this posture, regardless of whether, I mean, the fact that the parties didn't raise or the court didn't address rule 83, does that allow us to get around our Miller v. Gammie rule for following our precedent?

[00:05:07] Speaker 03:
Yes, Your Honor, because in Ghazali, the holding was that discretion needed to be exercised when dismissing a case for failure to follow local rules.

[00:05:15] Speaker 03:
The holding wasn't that cases could be dismissed solely for failure to file a response.

[00:05:19] Speaker 03:
And I'd point, we cited a student note in our brief on page 18, a 2022 student note from the Fordham Law Review, and that note didn't take Ghazali into account as the Ninth Circuit's entry into this eight-to-one circuit split.

[00:05:32] Speaker 03:
I'd also point to the Seventh Circuit's decision in Markur v. Lin,

[00:05:35] Speaker 03:
which also surveyed the circuit split on this issue and did not note Ghazali as the Ninth Circuit's entry into this issue.

[00:05:41] Speaker 01:
And I'm as appreciative of the student scholarship as the next judge, but can I ask you a question on the Ghazali piece itself?

[00:05:46] Speaker 01:
I mean, in this case, the plaintiff, both parties were warned of dismissal under Local Rule 712.

[00:05:52] Speaker 01:
Why isn't that enough in this case to, if we get to the abuse of discretion, to authorize the judge's exercise of discretion?

[00:06:04] Speaker 03:
That's because, Your Honor, the test under both Ghazali and Henderson and the five-factor test that this Court has established is not whether both parties are on notice that the case could be dismissed, it's whether or not the District Court abused its discretion under those five factors.

[00:06:18] Speaker 03:
And the factors that are at play are whether or not there was an unreasonable delay, a summary of those first two factors from Henderson, and whether there was a risk of prejudice to the defendant.

[00:06:26] Speaker 03:
So the question isn't whether the parties were on notice, but whether under those particular metrics that the order was an abuse of discretion.

[00:06:32] Speaker 03:
And in this case, it was.

[00:06:34] Speaker 03:
If there was any delay in this case, it was at most 13 days, and it was unavoidable for Ms.

[00:06:38] Speaker 03:
Fisher because Ms.

[00:06:39] Speaker 03:
White had not followed the procedural rules, had pushed back her second motion for judgment on the pleadings until passed when Ms.

[00:06:46] Speaker 03:
Fisher's deadline to file was.

[00:06:47] Speaker 03:
So.

[00:06:48] Speaker 00:
Can we, can we, let's look at the facts here.

[00:06:50] Speaker 00:
So Ms.

[00:06:51] Speaker 00:
Fisher's initial extension request on April 5th requested a 45 to 60 day extension.

[00:06:56] Speaker 00:
That extension would have expired on June 4th, which was a day before

[00:07:02] Speaker 00:
her opposition to the motion for judgment on the pleadings was due.

[00:07:06] Speaker 00:
And so we don't have anything in the record saying she still needed that extension beyond the time that she requested.

[00:07:13] Speaker 00:
And then on May 30th, Ms.

[00:07:15] Speaker 00:
Fisher files a proof of financial hardship and a request to go to trial and proof of service.

[00:07:20] Speaker 00:
So clearly she was able to prepare her legal documents and file them in that window.

[00:07:26] Speaker 00:
She could have easily filed another extension request if she needed one, right?

[00:07:29] Speaker 03:
Your Honor, it's true that it was technically possible for Ms.

[00:07:32] Speaker 03:
Fisher to file a response, but there's a difference between a substantive response to a legal brief and those more technical documents that Ms.

[00:07:38] Speaker 03:
Fisher filed.

[00:07:39] Speaker 00:
But she could have filed an extension request.

[00:07:41] Speaker 00:
She knew how to do that because she already did one on April 5th, right?

[00:07:44] Speaker 03:
Yes, Your Honor, she could have.

[00:07:46] Speaker 03:
But under the tests that asked whether or not unreasonable delay was caused or the defendant was prejudiced, neither of those things occurred.

[00:07:52] Speaker 03:
Thank you, Your Honors.

[00:07:53] Speaker 00:
You know, I had one more question for you.

[00:07:55] Speaker 03:
Yes, your honor.

[00:07:56] Speaker 00:
Your whole point is that, hey, when people don't respond, you should not deem that as a concession.

[00:08:03] Speaker 00:
But in your reply brief, you seem to do that in a number of points where you say, again, Miss White has no response to any of these points and should be deemed to concede them.

[00:08:12] Speaker 00:
Page 10, page 8, Ms.

[00:08:13] Speaker 00:
White offers no response to any of these points explained in our opening brief and should be deemed to concede them.

[00:08:19] Speaker 00:
Aren't you sort of doing what you're asking us to find was not proper below?

[00:08:24] Speaker 03:
Your Honor, we're not because the standards are different.

[00:08:26] Speaker 03:
The result of failure to file being deemed consent to the granting of a dispositive motion in the context of a Rule 12 motion is that the case is over and that the plaintiff has no further

[00:08:37] Speaker 03:
no further recourse.

[00:08:38] Speaker 03:
In the context of a brief dropped argument, when two parties are going back and forth over legal arguments, that's not the consequence dismissal, and dismissal is treated differently in this court.

[00:08:47] Speaker 03:
Thank you, Your Honors.

[00:08:48] Speaker 00:
Thank you.

[00:08:49] Speaker 00:
And we'll give Mr. Fitzpatrick three minutes.

[00:09:05] Speaker 02:
Morning, Your Honors.

[00:09:06] Speaker 02:
I'm Chris Chapin.

[00:09:07] Speaker 02:
I represent Angela White.

[00:09:12] Speaker 02:
And I'm just about ready to submit on the briefs.

[00:09:17] Speaker 00:
I don't think you should, but go ahead.

[00:09:22] Speaker 02:
Well, the district court did what the only thing he could do when Ms.

[00:09:25] Speaker 02:
Fisher failed to respond to our motion for summary judgment.

[00:09:31] Speaker 02:
Under the local rules,

[00:09:36] Speaker 02:
Prose litigants are required to follow the rules, and she did not?

[00:09:41] Speaker 01:
Well, I guess the district court doing what it had to do is one of my questions in this case.

[00:09:50] Speaker 01:
You've characterized this as an exercise of discretion.

[00:09:52] Speaker 01:
Was there any discretion at all in the court's order?

[00:09:55] Speaker 01:
The local rule appears to just require it, so it seems odd that we should even review it for an abuse of discretion.

[00:10:02] Speaker 02:
The judge had to apply his discretion to dismiss the case.

[00:10:08] Speaker 01:
Well, that's not what the local rule says.

[00:10:10] Speaker 01:
The local rule says it's consent, and once there's consent, I mean what's... It may be deemed consent, and that's up to the judge to decide.

[00:10:18] Speaker 01:
And do we have any other guidance as to how the judge exercised that discretion than the order itself from the district court?

[00:10:28] Speaker 02:
Not that I'm aware of.

[00:10:31] Speaker 01:
So when we're looking at the

[00:10:35] Speaker 01:
the different prejudice factors.

[00:10:38] Speaker 01:
The first couple go to expeditious resolution and the district court's management of its own docket.

[00:10:47] Speaker 01:
I'm not sure which way that cuts, given how much slack the district court cut the defendant in this case.

[00:10:55] Speaker 01:
In other words, if we're to read the district court as

[00:11:01] Speaker 01:
dismissing because we got to move things along here, doesn't seem like the district court took that same approach with your client.

[00:11:08] Speaker 01:
And so we may not credit that with much weight.

[00:11:11] Speaker 02:
Well, I don't know what the district court thought.

[00:11:14] Speaker 02:
I just know he dismissed with prejudice.

[00:11:19] Speaker 02:
And I'm sure he looked at the merits of the case.

[00:11:23] Speaker 02:
He didn't say that he did, but he must have.

[00:11:26] Speaker 01:
Well, that would be troubling for purposes of our appellate review, because if the merits are in, that then becomes a different standard of review.

[00:11:37] Speaker 01:
So as I understand it, we're just looking at whether the judge exercised their discretion, and even under your argument, they have to meet the five elements there.

[00:11:44] Speaker 01:
So I guess what I'm saying is that given that the defendant had

[00:11:51] Speaker 01:
I've done some things that extended the litigation.

[00:11:58] Speaker 01:
Why should the plaintiff's delays count in your favor?

[00:12:04] Speaker 02:
What did we do to delay the litigation?

[00:12:05] Speaker 01:
Well, not filing proper orders.

[00:12:07] Speaker 01:
The defendant violated lots of local rules.

[00:12:09] Speaker 02:
That was a technical failure which was remedied the next day.

[00:12:13] Speaker 01:
Why is the failure to file an extension when the plaintiff has already shown a

[00:12:18] Speaker 01:
failure to file has already filed an extension.

[00:12:21] Speaker 01:
Why is that not also just a technical error?

[00:12:24] Speaker 01:
You're not suggesting that there's anything that the plaintiff actually substantively consented.

[00:12:27] Speaker 01:
The plaintiff just didn't respond.

[00:12:30] Speaker 02:
Well, I don't know that she didn't.

[00:12:31] Speaker 02:
I mean, as you pointed out, she filed a statement of financial hardship and a request to go to trial.

[00:12:42] Speaker 02:
She was perfectly capable of

[00:12:45] Speaker 02:
filing another request for extension.

[00:12:47] Speaker 02:
She knew her time had expired.

[00:12:51] Speaker 02:
And I don't see that there was anything else for the judge to do.

[00:12:53] Speaker 02:
It's not she didn't miss a deadline.

[00:12:56] Speaker 02:
She didn't file late.

[00:12:58] Speaker 02:
She didn't file at all.

[00:13:01] Speaker 01:
But there was no order to show cause.

[00:13:03] Speaker 01:
A defendant has the possibility to raise a failure to prosecute motion.

[00:13:10] Speaker 01:
You didn't do anything, right?

[00:13:12] Speaker 01:
It's fair to say that you didn't.

[00:13:14] Speaker 01:
necessarily, you didn't ask for this ruling.

[00:13:17] Speaker 01:
There's no motion to set this up.

[00:13:20] Speaker 01:
It was just by operation of the rule, right?

[00:13:23] Speaker 02:
Of course we asked for the ruling.

[00:13:25] Speaker 02:
We brought a motion for judgment on the pleadings.

[00:13:27] Speaker 01:
Well, you didn't ask the plaintiff for her consent and you didn't tee this up in front of the court.

[00:13:35] Speaker 02:
We had a meet and confer where we explained to her what our position was and she explained to hers.

[00:13:41] Speaker 01:
Right, but in terms of the technical

[00:13:44] Speaker 01:
basically what this rule considers a waiver, not even just a forfeiture, but actual consent to this.

[00:13:53] Speaker 01:
There were no discussions between either you and the plaintiff or between you and the court to tee up this basically default ruling under the rule.

[00:14:05] Speaker 02:
There were no discussions, no.

[00:14:06] Speaker 01:
Right.

[00:14:07] Speaker 01:
And of course you could have if you thought that if you had the same concerns that you're now attributing to the district court, could you not have brought a failure to prosecute or other motion to bring to the court's attention your view that the Ghazali factors were met, that the case was taking too long, that we should move things along?

[00:14:28] Speaker 02:
Well, we had the rules.

[00:14:30] Speaker 02:
We had the local rules.

[00:14:32] Speaker 02:
And when we brought the motion and she didn't respond, the court granted our motion.

[00:14:37] Speaker 02:
There wasn't anything else for us to do.

[00:14:39] Speaker 01:
Is there any, I tried to look at this a little bit, and most of these cases are unpublished.

[00:14:43] Speaker 01:
I'm not sure there's any, is there any case published since Ghazali dealing with the Rule 12 motion?

[00:14:49] Speaker 01:
Correct me if I'm wrong, but are you aware of any case published or unpublished where we've dismissed for a delay of at most between two weeks and three months?

[00:14:59] Speaker 02:
Well, the two cases we cited, excuse me a moment,

[00:15:10] Speaker 02:
Herani versus Blinken in the Southern District of California, where a motion was granted for a failure to file an opposition.

[00:15:28] Speaker 02:
And then in the Northern District in California, Barrera versus Department of Homeland Security.

[00:15:38] Speaker 01:
And how long were the delays, as far as we can tell, in those cases?

[00:15:44] Speaker 02:
It wasn't a delay.

[00:15:46] Speaker 02:
I have a problem with you calling it a delay.

[00:15:48] Speaker 02:
It's not that she did it something late.

[00:15:51] Speaker 02:
She didn't do it at all.

[00:15:52] Speaker 01:
Right.

[00:15:53] Speaker 01:
But are we not required to examine the district court's exercise of discretion under the Ghazali factors, which go to both prejudice on the one hand and expeditious resolution on the other?

[00:16:04] Speaker 02:
Yes.

[00:16:05] Speaker 01:
Why would it be wrong?

[00:16:08] Speaker 01:
It seems in those cases that we have looked at the delay.

[00:16:12] Speaker 01:
So where it basically, I mean, Ghazali incorporates our failure to prosecute standard, doesn't it?

[00:16:19] Speaker 01:
And usually delay plays into that.

[00:16:22] Speaker 01:
So I guess that's what I'm troubled.

[00:16:23] Speaker 01:
I guess if it were a day late and it were dismissed, do you think it would be a different case?

[00:16:28] Speaker 02:
Well, that would be different, because then she would have actually filed something.

[00:16:32] Speaker 02:
If it were late, that's a different

[00:16:35] Speaker 01:
The district court, there was no order to show cause or anything, so it could have been, what if she had it on her desk, was just about to hit send on PACER, ready to file it, and the order comes in.

[00:16:50] Speaker 02:
Then she could ask for reconsideration.

[00:16:53] Speaker 01:
Okay, I see.

[00:16:55] Speaker 00:
Yes, you didn't address the fourth and fifth gazali factors the public policy favoring disposition on the merits and the availability of less drastic sanctions So are you conceding those?

[00:17:09] Speaker 02:
Which ones?

[00:17:10] Speaker 02:
I'm sorry.

[00:17:11] Speaker 00:
The public policy favoring decision on the merits.

[00:17:15] Speaker 02:
Yeah.

[00:17:15] Speaker 00:
And then less drastic sanctions.

[00:17:17] Speaker 00:
You didn't address those.

[00:17:18] Speaker 00:
So you're conceding those, right?

[00:17:20] Speaker 00:
Okay.

[00:17:21] Speaker 00:
All right.

[00:17:21] Speaker 00:
So those very strongly weigh

[00:17:25] Speaker 00:
against dismissal.

[00:17:28] Speaker 00:
And as Judge Johnstone's pointing out, the delay here at most, maybe 17 days at the most, seems minimal.

[00:17:39] Speaker 00:
And if we look at the other factors

[00:17:44] Speaker 00:
They seem to be neutral or maybe slightly weighing in favor of dismissal.

[00:17:51] Speaker 00:
So why shouldn't we reverse here?

[00:17:54] Speaker 00:
I mean, there are no consideration of less drastic sanctions, right?

[00:17:58] Speaker 02:
At all.

[00:18:00] Speaker 02:
Well, I don't know what a less drastic sanction would be.

[00:18:03] Speaker 00:
Dismissal without prejudice.

[00:18:05] Speaker 02:
And how could she amend?

[00:18:10] Speaker 02:
She's got one thing that she says is a copyright infringement.

[00:18:14] Speaker 00:
Well, there's been no ruling on the merits here.

[00:18:16] Speaker 02:
I know.

[00:18:19] Speaker 00:
So I guess I don't see why she wouldn't have any difficulty just refiling even the same complaint.

[00:18:26] Speaker 00:
There's been no decision on the merits.

[00:18:29] Speaker 00:
So we don't know whether that's a valid claim of copyright infringement or not, right?

[00:18:32] Speaker 02:
I'm sorry.

[00:18:32] Speaker 02:
Excuse me.

[00:18:33] Speaker 00:
We don't know whether that's a valid, whether the district court thought it was a valid claim of copyright infringement or not.

[00:18:40] Speaker 00:
It seems like if you're conceding number four and number five, and the delay seems minimal at most, 17 days, then- But the delay, I'm sorry, the delay for what?

[00:18:54] Speaker 02:
What was the delay?

[00:18:55] Speaker 00:
Well, actually, let me ask you that question, because you just say, oh, she caused, Ms.

[00:18:59] Speaker 00:
Fisher caused unreasonable delay.

[00:19:01] Speaker 00:
How did she cause- We didn't say that.

[00:19:03] Speaker 00:
Unreasonable delay.

[00:19:04] Speaker 00:
Okay, so you don't believe she's caused unreasonable delay.

[00:19:07] Speaker 00:
So then does the first gazali factor, the public interest in expeditious resolution of the litigation also weigh against dismissal then?

[00:19:16] Speaker 00:
Must be, right?

[00:19:18] Speaker 02:
I guess so.

[00:19:19] Speaker 00:
Okay.

[00:19:20] Speaker 00:
So then do you also concede that the second gazali factor, the court's management of its docket also weighs against dismissal?

[00:19:28] Speaker 02:
No, I say that weighs for dismissal.

[00:19:31] Speaker 00:
Okay.

[00:19:31] Speaker 00:
So that's the only one of the factors that you think.

[00:19:36] Speaker 00:
ways in favor of dismissal.

[00:19:37] Speaker 00:
So four factors weigh against dismissal and one in favor.

[00:19:42] Speaker 00:
So I don't see how that's not an abuse of discretion.

[00:19:48] Speaker 02:
I don't have anything else to say.

[00:19:49] Speaker 00:
OK.

[00:19:54] Speaker 00:
Do you have any further questions?

[00:19:55] Speaker 01:
No.

[00:19:55] Speaker 01:
Thank you for your time.

[00:19:56] Speaker 00:
Thank you very much.

[00:19:57] Speaker 00:
Thank you.

[00:20:16] Speaker 00:
Go ahead, please.

[00:20:17] Speaker 04:
May it please the court, Connor Fitzpatrick for Ms.

[00:20:19] Speaker 04:
Fisher.

[00:20:20] Speaker 04:
It seems that the court has a good handle on the abuse of discretion standard here, and it appears that Ms.

[00:20:24] Speaker 04:
White has conceded that point.

[00:20:26] Speaker 04:
So I'd like to spend the balance of our time talking about Ghazali and whether Ghazali controls.

[00:20:31] Speaker 04:
Now, we've read Ghazali many times, and we've tried to rationalize.

[00:20:34] Speaker 00:
Can I just tell you what is sort of bothering me on this line of argument?

[00:20:39] Speaker 00:
Is that rule 83 requires that local rules be consistent with federal statutes and rules.

[00:20:45] Speaker 00:
And that doesn't seem to include judicial interpretation of the rules.

[00:20:51] Speaker 00:
And so unlike Rule 56, where the burden of proof is in the statutory text, even the Seventh Circuit and Lynn conceded that, right?

[00:21:01] Speaker 00:
Even the Seventh Circuit and Lynn said, yeah, well, 56, they talk about the allocation of burden of proof.

[00:21:06] Speaker 00:
But Rule 12 doesn't.

[00:21:08] Speaker 00:
So you're asking us then to read in judicial interpretation

[00:21:13] Speaker 00:
into the phrase federal statutes and rules.

[00:21:17] Speaker 00:
And that's where I'm still having some difficulty following your argument.

[00:21:22] Speaker 04:
Yes, Your Honor.

[00:21:23] Speaker 04:
And we think that it is a rule under Rule 12 that you have to apply the Twombly and Iqbal standard and the Gregg standard.

[00:21:32] Speaker 00:
That's still case law, right?

[00:21:34] Speaker 00:
That's not looking at the statutory text.

[00:21:37] Speaker 04:
Yes, that's correct.

[00:21:37] Speaker 04:
But we still think that that's a binding rule.

[00:21:40] Speaker 04:
Um, and the operative text that you're looking at is statutes and rules.

[00:21:43] Speaker 04:
I don't think it would be appropriate for a district court to say we know that we have, but hang on, let's look at that language.

[00:21:49] Speaker 00:
That language is statutes and rules.

[00:21:52] Speaker 00:
And then it says, um, adopted under 28 USC sections, 2072 and 2075.

[00:22:00] Speaker 00:
And so if you look at those,

[00:22:02] Speaker 00:
it's very clear that they're not talking about Twombly and Iqbal in case law.

[00:22:06] Speaker 00:
Those are specifically talking about, you know, the Supreme Court having the power to prescribe these general rules and then transmitting them to Congress by May 1st.

[00:22:17] Speaker 00:
And if Congress doesn't act, then they become effective December 1.

[00:22:21] Speaker 00:
So that's not referring to Twombly and Iqbal, right?

[00:22:24] Speaker 00:
If you look at the rest of the language in Rule 83,

[00:22:30] Speaker 04:
Well, I think Rule 83 would have a problem if a district court came out and said, we know we have this case law on what is required for us to do under Rule 12, but we think it would be more expeditious if instead we went back to notice pleading.

[00:22:43] Speaker 04:
We think that would be in the interest of justice.

[00:22:45] Speaker 04:
I mean, that would be clearly against this court's case law and Supreme Court case law.

[00:22:48] Speaker 01:
Well, I guess maybe it's just a quibble, but Twombly and Iqbal, I read our interpretations of Rule 8, not Rule 12.

[00:22:56] Speaker 04:
Yeah, I think that's right, but we've looked at our Rule 12 standards under some of those precedents.

[00:23:04] Speaker 04:
And maybe it would be Greg and Chavez from this circuit that we would be looking at a little more.

[00:23:09] Speaker 04:
And those are very explicit that the district courts have to weigh what the actual substantive standards are.

[00:23:17] Speaker 01:
But I guess, again, I'd come back to Rule 12D.

[00:23:22] Speaker 01:
It seems like the rules contemplate an instance where summary judgment type weighing is necessary.

[00:23:30] Speaker 01:
The very nature of judgment on the pleadings and this implied default through consent rule is that the judge has all they need to know with the complaint and answer.

[00:23:42] Speaker 01:
And if there's no answer, you deem the complaint as you look at the complaint and say, does this state a claim?

[00:23:49] Speaker 01:
If you have an answer, then it adds another element.

[00:23:52] Speaker 01:
So what else does a district court have to do other than that in terms of a rule like the local rule here?

[00:24:03] Speaker 04:
I see that my red light is on, Your Honor.

[00:24:05] Speaker 04:
Do I have to leave to respond?

[00:24:07] Speaker 04:
Please.

[00:24:07] Speaker 04:
I think that underscores our point that in the Rule 12 context, it's a motion at law.

[00:24:14] Speaker 04:
There's no question of fact here.

[00:24:16] Speaker 04:
With Ms.

[00:24:17] Speaker 04:
Fisher's complaint, the court has all it needs to adequately assess the case, assess the merits, and then make a ruling on that basis.

[00:24:26] Speaker 04:
And then a response, as the majority of circuits has held, is not required for the district court to make that answer.

[00:24:31] Speaker 04:
Thank you, and we urge this court to reverse.

[00:24:34] Speaker 00:
All right.

[00:24:35] Speaker 00:
Thank you to all counsel for your helpful arguments.

[00:24:37] Speaker 00:
That case is now submitted.