[00:00:00] Speaker 00: Case number 22-6273. [00:00:03] Speaker 00: Joe Spence, appellant versus United States Department of Veterans Affairs and Dennis McDonough in his official capacity as Secretary of the United States Department of Veterans Affairs. [00:00:14] Speaker 00: Ms. [00:00:14] Speaker 00: Spence for the appellant, Mr. Silverman for the appellees. [00:00:22] Speaker 03: Good morning. [00:00:23] Speaker 05: Good morning, Honors. [00:00:24] Speaker 05: May it please support? [00:00:27] Speaker 05: I'm Joe Spence, pro se appellant. [00:00:29] Speaker 05: The district court aired when it failed to consider my second amended complaint in light of all filings in this evaluation under federal rule of Civil Procedure 12 v six and EEOC versus St. [00:00:44] Speaker 05: Francis Xavier parochial schools, the DC circuit held when deciding a 12 v six rule 12 v six motion. [00:00:52] Speaker 05: The court may only consider the complaint itself documents attached to the complaint documents [00:01:00] Speaker 05: that are incorporated by reference in the complaint and judicially noticeable materials. [00:01:05] Speaker 05: In Brown versus Whole Foods Market Group Incorporated, the DC Circuit held that for pro se plaintiffs, the court may also consider the facts set forth in the plaintiff's opposition to the motion to dismiss. [00:01:20] Speaker 05: The district court in this incident case aired in this belief that it did not have to consider my opposition to the defendant's motion to dismiss. [00:01:29] Speaker 05: simply because I'm an attorney. [00:01:32] Speaker 05: There's no language in Brown that excludes pro se litigants who are attorneys from consideration. [00:01:37] Speaker 03: Do you have to, do you have to have the pro se, the liberal rules to prevail? [00:01:48] Speaker 03: Can you win without the pro se liberality pleadings, including the Brown versus Whole Foods rule? [00:01:56] Speaker 05: I'm not sure I'm understanding what you're asking. [00:01:59] Speaker 03: Can you win if we don't treat you as a pro se plaintiff? [00:02:01] Speaker 03: Could you win? [00:02:02] Speaker 03: Yes, absolutely. [00:02:04] Speaker 03: So you could win just on the content of your complaint alone? [00:02:08] Speaker 03: Yes. [00:02:08] Speaker 03: Your second amended complaint without reference to the materials in your... Well, no. [00:02:14] Speaker 05: The materials are crucial to my success here in the court, not considering my materials. [00:02:21] Speaker 03: So they have to have a rule that says for 12b6, we can consider [00:02:27] Speaker 03: materials attached to your opposition to the 12 p six motion. [00:02:31] Speaker 03: Yes. [00:02:32] Speaker 03: And as far as you're aware, that type of reading is only allowed for pro se parties. [00:02:39] Speaker 05: Well, that reading should be allowed. [00:02:44] Speaker 05: Yes, to all proceeds. [00:02:46] Speaker 05: I don't know. [00:02:47] Speaker 05: I'm not aware of any again exclusion for any proceeds who are of any particular profession. [00:02:56] Speaker 01: Why would we extend the rule to pro says who are attorneys? [00:03:02] Speaker 01: Well, that rule itself is an X is an exception to normal pleading rules. [00:03:08] Speaker 01: Well, just because rationale is that pro says generally aren't lawyers. [00:03:18] Speaker 01: But you are. [00:03:19] Speaker 05: I am a lawyer, but just because someone carries the [00:03:23] Speaker 05: The title of attorney doesn't necessarily mean they have the requisite experience to to litigate to bother complaints without defects. [00:03:35] Speaker 05: And I have not represented the federal government in any litigation before federal court before even though I'm a former federal government attorney. [00:03:48] Speaker 05: And that role is reserved for the Department of Justice attorneys. [00:03:52] Speaker 05: So I don't believe I should be penalized simply because I carry the title of attorney. [00:03:58] Speaker 04: Ms. [00:03:58] Speaker 04: Spence, even for pro se litigants though, we have a number of cases saying that pro se litigants must follow the rules. [00:04:07] Speaker 04: And here the district court repeatedly suggested to you ways to [00:04:13] Speaker 04: to make your complaint compliant with the rules. [00:04:16] Speaker 04: And so even if we were to give you pro se treatment, I mean, there are a number of cases. [00:04:24] Speaker 04: I mean, pro se litigants still have to follow the federal rules of civil procedure. [00:04:30] Speaker 05: In this case, the district court claims that I repeatedly failed to follow the rules, especially with regard to this page limit, are not supported by the record. [00:04:40] Speaker 05: And the record shows that [00:04:42] Speaker 05: with my first proposed amended complaint where I sought to add count six that was denied by the court without a reason and the court imposed a 50 page limit. [00:04:55] Speaker 05: My second proposed amended complaint was denied for violating the court's page limit but I misinterpreted the court's order [00:05:09] Speaker 05: and included or added 50 pages for count six to my original complaint, which was 98 pages. [00:05:16] Speaker 05: So any violation was totally unintentional. [00:05:20] Speaker 05: A third proposed amended complaint was denied after the court erroneously found that a 57-page statement of facts attached to my amended complaint was incorporated by reference. [00:05:35] Speaker 05: And I have to note that that exhibit was one of three [00:05:39] Speaker 05: Mayor's Assistance Protection Board documents attached to my complaint, and only one was singled out as being incorporated by reference. [00:05:47] Speaker 05: The district court also aired when it found that the exhibits attached to my opposition memo were also incorporated by reference. [00:05:54] Speaker 05: There were no indicators that any of the exhibits were to be incorporated by reference. [00:05:59] Speaker 05: And then with regard to my last attempt [00:06:05] Speaker 05: To avoid any further erroneous claims of incorporation by reference, I submitted a 48-page, fourth amended complaint, and I filed that with no exhibits or no attachments. [00:06:19] Speaker 05: So, as far as I can tell, my complaint was compliant. [00:06:27] Speaker 05: There were concerns that my complaint did not comply with Rule 8A2, [00:06:32] Speaker 05: of the, that was count six of the complaint of the federal rules of civil procedure. [00:06:38] Speaker 05: But the complaint itself was compliant with the court's orders except for the one instance where I misinterpreted the court's order. [00:06:55] Speaker 05: The district court, I'm sorry, the DC circuit was emphatic and brown. [00:07:01] Speaker 05: when it stated that a court airs when it fails to consider a pro se. [00:07:05] Speaker 05: Litigants complain in light of all filings, including filings responsive to a motion to dismiss. [00:07:12] Speaker 05: The district court aired in its findings that I provided no facts but counts one, two, and three of my complaint that could possibly give rise to an inference that any actions taken against me were due to race, sex, or age, or discrimination, or retaliation. [00:07:27] Speaker 05: The district court aired in its failure to consider [00:07:32] Speaker 05: the facts of my opposition filings, which contain the facts necessary to make an inference of causation. [00:07:39] Speaker 05: Further, the court's refusal to take judicial notice of exhibits attached to my opposition memo violated rule 201C of the C2 of the federal rules of evidence, which state that a court must take judicial notice if a party requests it and supplies the necessary information. [00:07:59] Speaker 03: The district court aired and finding notice is matters that are not reasonably in dispute. [00:08:04] Speaker 03: And while your attachments were very much reasonably in dispute, that's not to say who's right or wrong. [00:08:12] Speaker 03: They don't qualify for judicial notice. [00:08:14] Speaker 03: Those are for matters. [00:08:16] Speaker 03: Additionally, public filings by the government are not matters in dispute. [00:08:23] Speaker 03: I'm having trouble understanding how your, um, [00:08:27] Speaker 03: your exhibits would have been qualified for judicial notice. [00:08:31] Speaker 05: Well, I was just following the federal rules of evidence. [00:08:34] Speaker 05: It did not contain qualifier. [00:08:36] Speaker 05: It just says for. [00:08:37] Speaker 05: If a party requests judicial notice. [00:08:42] Speaker 05: And supplies and necessary information in the court must know somebody has more than that. [00:08:47] Speaker 03: There's a definition of what qualifies for judicial notice in the federal evidence. [00:08:53] Speaker 03: Well, thank you for that lesson. [00:08:58] Speaker 05: The district court aired in this finding for count one that the employment actions I complained of had no binding effect on my salary, bonus or other benefits. [00:09:08] Speaker 05: The district court aired in this findings that I did not establish a causal connection between those employment actions and my protected activity and my termination was the only adverse action I suffered. [00:09:20] Speaker 05: My opposition filings which contained sufficient factual matter to plausibly establish the elements of my claims [00:09:28] Speaker 05: stated that I suffered numerous adverse actions. [00:09:31] Speaker 05: One was a fully successful performance rating I received, which was lower, 2017, which was lower than the outstanding rating I received the previous year that resulted in the loss of a monetary award. [00:09:45] Speaker 05: And Weber versus Batista, the DC circuit held a performance evaluation to be materially adverse when it results in the employee not receiving a cash award. [00:09:56] Speaker 05: The district court aired in its failure to consider the facts in my opposition filings. [00:10:03] Speaker 05: The district court aired in its findings that I did not plead a causal connection between my termination and my EEO complaint and that dismissal was warranted because I was terminated nearly a year after I filed my November 6th EEO complaint. [00:10:17] Speaker 05: My amended complaint states that the original EEO complaint was amended numerous times and that the alleged events of discrimination and retaliation [00:10:26] Speaker 05: occurred between November 2017 and September 2018. [00:10:31] Speaker 05: In Singletary versus the District of Columbia, the D.C. [00:10:35] Speaker 05: Circuit noted that a close temporal relationship may alone establish the required causation. [00:10:42] Speaker 03: Thank you. [00:10:43] Speaker 03: Thank you very much. [00:10:44] Speaker 03: We'll give you a couple minutes on rebuttal. [00:10:48] Speaker 03: Thank you. [00:11:00] Speaker 02: Good morning, your honors. [00:11:00] Speaker 02: Bradley Silverman for the government. [00:11:03] Speaker 02: The district court's action in this case was a reasonable and proportionate response to the problem that confronted it. [00:11:12] Speaker 02: The plaintiff was a trained attorney with 36 years of experience who despite the district courts repeated instructions to limit her pleadings to 50 pages, repeatedly filed pleadings in excess of 50 pages. [00:11:29] Speaker 03: She just explained the confusion the first time she thought it was for the new amended claim. [00:11:36] Speaker 03: It was a mistake on her part. [00:11:37] Speaker 03: She admits it, but nothing willful. [00:11:41] Speaker 03: Um, and rules do allow attachments to complaints. [00:11:45] Speaker 03: And so she just says it was matters of confusion. [00:11:48] Speaker 03: Do you dispute? [00:11:48] Speaker 03: Do you think she was engaged and deliberate and willful disobedience of court orders or just was rather confused? [00:11:55] Speaker 02: Yes, your honor. [00:11:56] Speaker 03: I can't speak question. [00:11:57] Speaker 03: Which one is that she was rather confused or she was deliberate and willful and define the district court order. [00:12:03] Speaker 02: I cannot speak to her state of mind, obviously. [00:12:06] Speaker 02: I can't look in her mind. [00:12:07] Speaker 02: But there are two aspects of this case that raise. [00:12:11] Speaker 03: You've dealt with it again. [00:12:13] Speaker 03: You've heard her explanation today. [00:12:15] Speaker 03: Is there any reason not to credit her explanation? [00:12:18] Speaker 02: Yes. [00:12:18] Speaker 02: Two reasons not to credit it, Your Honor. [00:12:20] Speaker 02: First, the district court's directive was unambiguous. [00:12:24] Speaker 02: It is difficult for me to understand how a reasonable person, let alone an attorney, can read the district court's order [00:12:33] Speaker 02: which very clearly said, your amended pleadings, not your new count, your amended pleadings. [00:12:38] Speaker 03: Well, again, she said, she thought that meant the amended pleading was the addition to the amended complaint. [00:12:44] Speaker 03: Mistaken. [00:12:44] Speaker 02: The other reason. [00:12:46] Speaker 03: That doesn't suggest willfulness or deliberateness. [00:12:50] Speaker 02: Well, what does suggest willfulness and deliberateness and sort of cast doubt on that previous explanation is the subsequent actions in this case. [00:12:58] Speaker 02: First, attempting to incorporate 57 additional pages [00:13:02] Speaker 02: into the complaint. [00:13:04] Speaker 02: And second, in her response. [00:13:07] Speaker 03: She was confused about judicial notice rules, and she's confused about rules for attaching the rules about your ability to attach things to your complaint. [00:13:17] Speaker 03: And when she was told, every time she was told no, she did not repeat that step. [00:13:22] Speaker 03: Did the district court find that she was willful and deliberate? [00:13:25] Speaker 02: I need to look at the district court's opinion. [00:13:27] Speaker 02: But the district court did find that she repeatedly violated his orders that this misspense is a trained attorney who reasonably can be expected to read an order and understand it. [00:13:39] Speaker 03: Negligence. [00:13:40] Speaker 03: I didn't read this as finding willfulness and deliberateness and that she was just someone in the face of the district court. [00:13:49] Speaker 02: But you do. [00:13:51] Speaker 02: Your Honor, I can't read it. [00:13:52] Speaker 03: I'm asking you how you interpret [00:13:54] Speaker 03: or the government, whoever the trial counsel was, interpret it. [00:13:58] Speaker 02: I find it difficult to understand how a trained attorney can read the same order over and over again, limit your pleadings to 50 pages, and repeatedly violate that first directly, and then second and third time indirectly by pointing to voluminous external materials in order to supply the necessary facts, the ostensibly necessary facts, [00:14:23] Speaker 03: Government not moved for summary judgment on motion to dismiss or summary judgment on all of her claims? [00:14:29] Speaker 02: Government moved to dismiss all of her claims except for one record review claim or the government summary judgment. [00:14:35] Speaker 03: Right. [00:14:36] Speaker 02: Right. [00:14:36] Speaker 03: I thought it was summary judgment. [00:14:39] Speaker 03: I'm sorry? [00:14:39] Speaker 03: I thought it was motion to dismiss or summary judgment on all claims. [00:14:41] Speaker 03: I get the district court only granted summary judgment on one, but I thought the government's motion was either one in the alternative. [00:14:48] Speaker 02: It it it might have been the primary thrust of the argument. [00:14:51] Speaker 03: Makes sense for her then to attach things to her opposition, but that doesn't summary judgment. [00:14:57] Speaker 03: And to argue about them. [00:14:59] Speaker 02: But even if those materials could be considered in the context of ruling on a summary judgment motion, it can't be considered in the context of ruling on a 12b6 motion. [00:15:10] Speaker 02: So the court could still dismiss under 12b6 without needing to or being permitted to look at. [00:15:18] Speaker 03: It doesn't make error for her to attach those things to her opposition. [00:15:22] Speaker 02: Well, it is error when you are pointing to those to supply the facts missing from her pleading. [00:15:28] Speaker 02: It's important here to look at what she said in her opposition. [00:15:32] Speaker 02: If I'm paraphrasing here a little bit. [00:15:34] Speaker 02: But the government moved to dismiss on the ground that she had not pleaded facts to give her eyes to plausible inferences. [00:15:42] Speaker 02: In her opposition, she says, paraphrasing, well, yes, I did not plead the facts because this court limited my pleadings to 50 pages. [00:15:53] Speaker 02: However, if you look at these exhibits, you will see the necessary facts so that what this shows [00:15:59] Speaker 02: is that she was not simply providing these. [00:16:02] Speaker 03: It only objected to the statement of fact. [00:16:05] Speaker 03: She did not, as she has pointed out, object to the other attachments at any point. [00:16:11] Speaker 02: The government only pointed to the statement of facts. [00:16:14] Speaker 02: There was never a ruling or an argument. [00:16:17] Speaker 02: There was never any consideration as to whether the other materials violated. [00:16:21] Speaker 02: Confusion again, right. [00:16:23] Speaker 02: there. [00:16:23] Speaker 02: There is only the other materials may well have been improper as well, but we had only our faces to the district court dismissed with prejudice. [00:16:33] Speaker 02: Three considerations. [00:16:34] Speaker 02: The three considerations this court identified in Bristol Petroleum. [00:16:39] Speaker 02: In Bristol Petroleum, this court [00:16:42] Speaker 03: I just want you to tell me on this record, what basis did the district court dismiss with prejudice? [00:16:48] Speaker 02: With prejudice. [00:16:49] Speaker 02: First was the fact that Miss Pence had had repeated opportunities to amend her complaint to file a compliance complaint, yet had not done so, had required the government to file three dispositive motions, and had repeatedly violated its orders as a trained attorney. [00:17:11] Speaker 02: In light of these considerations, the same factors identified in Bristol Petroleum, the court determined that dismissal with prejudice was appropriate given the opportunities Ms. [00:17:24] Speaker 02: Spencer had given, the burden that her conduct had imposed on the court and the opposing party, and the need to deter other parties and promote respect for court orders. [00:17:38] Speaker 03: Is it the government's view that, having been enlightened by the district court, she could not plausibly make the allegations to state her claims? [00:17:51] Speaker 03: I'm sorry, Your Honor? [00:17:53] Speaker 03: Is it the government's view that she could not plead any factual allegations to support her claims? [00:17:59] Speaker 03: That you wouldn't agree to them? [00:18:01] Speaker 03: Sure. [00:18:01] Speaker 03: I assume. [00:18:02] Speaker 03: But that she could not? [00:18:05] Speaker 02: In theory, possibly, I don't know what the actual facts are. [00:18:11] Speaker 02: It's possible that the facts as they exist in the world would not support a plausible claim. [00:18:17] Speaker 02: But our argument was not that there was no conceivable set of facts in which she could plead a claim. [00:18:25] Speaker 02: It was that despite being given numerous opportunities to do so, she had not done so. [00:18:29] Speaker 03: I understand that point. [00:18:30] Speaker 03: That's good. [00:18:31] Speaker 03: And then I just have a question about count six. [00:18:33] Speaker 03: This is MSPB one. [00:18:36] Speaker 03: I know it's very long. [00:18:39] Speaker 03: But it seems quite clear to me what she's arguing there, lack of substantial evidence. [00:18:43] Speaker 03: Again and again and again, this lacks substantial evidence, this lacks substantial evidence, this lacks substantial evidence, which is what one argues in the MSPB appeal. [00:18:54] Speaker 03: So if she had just said one line in her complaint, the MSP decision was erroneous because it was unsupported by substantial evidence, would that be sufficient to state a claim? [00:19:06] Speaker 02: I'm not sure that one line, but at least probably not many more lines. [00:19:10] Speaker 03: What would she have to say? [00:19:11] Speaker 02: Just explain what the MSPB did and then briefly say why. [00:19:18] Speaker 03: What she did was she disagreed with lots of things the MSPB did. [00:19:23] Speaker 03: She identified them and identified why, in her view, they lacked substantial evidence. [00:19:30] Speaker 03: And if she had just picked one aspect of the decision and elaborated on it, when she later tried to raise other ones, she would have said, that's not in your complaint. [00:19:41] Speaker 03: If she just said the decision lacked substantial evidence, she would have said, that's too little. [00:19:45] Speaker 03: What she did here, where she went with all her disagreements, [00:19:49] Speaker 03: and didn't just say it lacked substantial evidence, but explained why in her view it lacked substantial evidence. [00:19:54] Speaker 03: I'm sure you disagree on the merits, but she did that. [00:19:57] Speaker 03: So what exactly was wrong? [00:20:00] Speaker 03: Was she only allowed to identify five or six things she disagreed with on substantial evidence? [00:20:05] Speaker 03: I just don't understand what she was supposed to do if in her mind, as she has explained, there were 20 different things that MSPB did that lacked substantial evidence. [00:20:17] Speaker 03: How was she supposed to plead that? [00:20:19] Speaker 02: I don't think it would've been difficult to explain as a general matter what she believes the administrative judge, the MSPB judge did wrong as a general matter without diving into the weeds of every particular detail. [00:20:32] Speaker 03: That gives the government even more notice. [00:20:35] Speaker 03: There's no notice problem here as to what she was arguing. [00:20:38] Speaker 03: I mean, this is, I read it as pretty straightforward. [00:20:40] Speaker 03: It was just, it was essentially a brief. [00:20:43] Speaker 03: every point on which she thought there was a lack of substantial evidence. [00:20:46] Speaker 03: But that's not a notice problem. [00:20:48] Speaker 03: It was. [00:20:48] Speaker 03: The government, one can imagine somebody who hasn't litigated before not wanting to leave something out on the grounds that someone will later say, well, you'd never raised that in your complaint. [00:21:01] Speaker 02: Well, it was a notice problem, Your Honor, because it was very difficult to look at this and know what facts mattered. [00:21:06] Speaker 02: It's true. [00:21:07] Speaker 02: There was an enormous. [00:21:08] Speaker 03: So you read it and she tells it. [00:21:09] Speaker 03: She goes, here's a ruling. [00:21:12] Speaker 03: Lack of substantial evidence, here's why. [00:21:14] Speaker 03: Here's another ruling or finding. [00:21:17] Speaker 03: Lack of substantial evidence, here's why. [00:21:18] Speaker 03: Here's another ruling, lack of substantial evidence, here's why. [00:21:22] Speaker 03: You couldn't read that? [00:21:25] Speaker 03: You didn't see that when you read it? [00:21:27] Speaker 03: Because that's what I saw when I read it. [00:21:28] Speaker 02: I saw it, but it's very difficult to look at this through all the detailed factual allegations, most of which concerns irrelevant or [00:21:40] Speaker 03: Well, that would be your answer is that that was not material to the board's decision, but she to her, it was relevant and important and lack substantial evidence. [00:21:51] Speaker 03: I just wasn't sure why we were. [00:21:52] Speaker 03: Take out a complaint that gives you more notice because you think it fails because rule eight. [00:22:01] Speaker 02: because Rule 8 doesn't require the opposing party to need to dive through an enormous sea of irrelevant information or less relevant information in order to pick out the few pearls of relevant and important information. [00:22:20] Speaker 02: What notice means in this context is not just that it's dumping every conceivable fact in front of the district court, but that it actually makes clear [00:22:28] Speaker 02: the basic thrust of its claim and what matters rather than require both the court. [00:22:33] Speaker 03: The basic thrust of the claim you said wouldn't be sufficient. [00:22:36] Speaker 03: The basic thrust is MSPB's decision lacked substantial evidence and its factual findings were relevant, lacked substantial evidence, but you said just putting that isn't enough. [00:22:47] Speaker 03: You need to lay out a little bit more and then [00:22:50] Speaker 03: I feel like there's a betwixt in between here because if she does the minimal one, that's not going to be enough. [00:22:58] Speaker 03: She did the maximal. [00:22:59] Speaker 03: She gets kicked for that. [00:23:01] Speaker 03: And if she does something in between, she's going to be leaving out allegations to her and her judgment. [00:23:09] Speaker 03: were important mistakes by the MSPB. [00:23:13] Speaker 03: Again, you can disagree on the merits and you can even group them together in a response, but how was she supposed to know which ones to leave out when they were all in her mind important errors by the MSPB? [00:23:31] Speaker 03: What was she supposed to do? [00:23:32] Speaker 02: So there's, I perceive two questions there. [00:23:35] Speaker 02: Let me try to answer them both. [00:23:36] Speaker 02: How was she supposed to know what to plead and what not to plead by exercising? [00:23:41] Speaker 03: No, no, no. [00:23:42] Speaker 03: Which errors? [00:23:44] Speaker 03: Yeah. [00:23:45] Speaker 03: Yeah. [00:23:45] Speaker 03: Not to raise. [00:23:47] Speaker 03: When to her, they were all important steps in the contribution to an erroneous judgment. [00:23:53] Speaker 02: So let me answer. [00:23:54] Speaker 02: You asked, well, if she pleads too little, then she's out of luck. [00:23:58] Speaker 02: If she pleads too much, she's out of luck. [00:24:00] Speaker 02: There are two separate rules here, two separate independent requirements, says the McHenry case, recognized that this court relied on or cited with approval in Sorowski. [00:24:09] Speaker 02: Rule 8a imposes one requirement, and rule 12b6 imposes another requirement. [00:24:15] Speaker 02: And in order to plead a valid claim, you need to satisfy them both. [00:24:19] Speaker 02: So maybe the one line [00:24:22] Speaker 02: claim would not have violated rule 8A. [00:24:25] Speaker 02: It would have been kosher under that rule, but it would have been a problem under rule 12B6. [00:24:32] Speaker 02: They're both required. [00:24:33] Speaker 02: Now, as far as feeling that every single fact is important, this is one of these areas where a lawyer is expected [00:24:42] Speaker 02: to exercise some judgment in culling all of the facts that seem relevant in one's mind and putting down those that actually are the importance, the operative ones, not just everything that one thinks will matter in the case. [00:25:00] Speaker 01: Suppose I agree with you that on dismissal with prejudice of count six, which flows from this extended back and forth on a pleading that violates the too much principle, the 8A problem. [00:25:25] Speaker 01: How does that support dismissal with prejudice on counts one to four, which are the opposite, the Twombly Ick Ball, too little problem? [00:25:38] Speaker 01: It just seems like those were kind of in suspended animation while there was all this back and forth about count six having too much detail. [00:25:48] Speaker 02: Well, the district court did not dismiss the first five counts because of the problem with count six. [00:25:56] Speaker 02: The district court dismissed the first five counts because of Mrs. Spence's, dismissed with prejudice, excuse me, the first five counts because of Mrs. Spence's behavior over the course of the case. [00:26:09] Speaker 02: So you're correct that it would not be [00:26:12] Speaker 02: it would not be proper to dismiss the other counts because of the issues of count six, but that isn't what the district court did. [00:26:18] Speaker 02: Ms. [00:26:18] Speaker 02: Spence had been given numerous opportunities to plead counts one through five, which were the counts raised in the original 98 page pleading. [00:26:27] Speaker 02: She'd been given repeated opportunities to plead these counts in a way that complied with federal rules. [00:26:34] Speaker 02: And with the district court's order that she limit her pleadings to a [00:26:39] Speaker 02: a fairly healthy, robust 50 pages. [00:26:42] Speaker 02: After five opportunities to do so and failures to do so, it was within the district court's discretion to say that Ms. [00:26:50] Speaker 02: Spence would not be permitted to continue to burden its docket, the other parties, to deprive attention from other litigants before the court who the court was able to devote less time to because it kept having to come back to Ms. [00:27:06] Speaker 02: Spence. [00:27:10] Speaker 03: All right. [00:27:11] Speaker 03: Thank you very much. [00:27:11] Speaker 03: Thank you. [00:27:14] Speaker 03: I'll give you two minutes. [00:27:23] Speaker 05: Council's claims that I repeatedly violated the court's orders and I had some behavioral issues just are not supported by the record. [00:27:35] Speaker 05: And although I was given numerous opportunities to [00:27:39] Speaker 05: present to the court a compliant complaint. [00:27:44] Speaker 05: Some of those opportunities were missed when government counsel claimed and the court agreed that I incorporated documents into my complaint by reference when I did not. [00:28:02] Speaker 05: And opposing counsel standing before you today was not able to explain how it was that [00:28:09] Speaker 05: only the statement of facts attached to my amended complaint was put in the category of being incorporated by reference when there were two other exhibits, all of which were MSCB documents already in the record. [00:28:25] Speaker 05: Already they were all identified as exhibits that were attached to the amended complaint. [00:28:34] Speaker 05: So yes, while I had opportunities, some of them [00:28:38] Speaker 05: uh, were unnecessary that I had to go back to the drawing board, even to the point where, as I stated earlier, I felt compelled to submit my fourth proposed amended complaint with no attachments for concern out of a concern that I would get another warning from the court about [00:29:03] Speaker 05: those documents being incorporated by reference, even though, again, there were no indicators that they were incorporated by reference. [00:29:19] Speaker 03: Were you intentionally breaking the court's rules? [00:29:21] Speaker 05: Pardon me? [00:29:22] Speaker 05: Were you intentionally violating the court's rules? [00:29:23] Speaker 05: Absolutely not. [00:29:24] Speaker 05: I would never do that. [00:29:27] Speaker 03: Any questions? [00:29:28] Speaker 03: On the count... One more sentence and then you're over your time. [00:29:32] Speaker 05: On account six, I will just say that count six was compliant with rule eight of the federal rules of civil procedure. [00:29:41] Speaker 05: And thank you for recognizing that I did make out claims there so that the government could understand. [00:29:50] Speaker 05: And it was not the disorganized and convoluted claim that the district court and the government would have this court believe. [00:30:02] Speaker 05: Thank you. [00:30:03] Speaker 03: Thank you very much.