Edward Peruta
Regular Member
TO ALL READERS OF THIS MESSAGE BOARD:
As most readers of this message board know, several legal challenges to policies and practices of local and state law enforcement have been made in the Federal and State courts.
The Connecticut Attorney General and his staff attorneys have handled the responses to several of the cases filed and offered information to the courts in defense of their actions.
In several cases, the attorneys for the state have knowingly responded to valid complaints with inaccurate information for reasons that have yet to be explained.
Attorney Rachel Baird has now responded to this policy and practice in the most recent filing in the case of James Goldberg v. John Danaher.
IT'S VERY TIMELY THAT SOMEONE IS NOW ADDRESSING THE PERVERSION OF JUSTICE THAT IS PRACTICED BY STATE GOVERNMENT.
Please take the time to read the information submitted to the Federal Court by Attorney Rachel M. Baird and understand that justice has been, (and is currently), perverted by the Attorney General's office in an attempt to mislead the courts and deny timely justice to the citizens of Connecticut.
FILED BY ATTORNEY RACHEL M. BAIRD:
PLAINTIFF’S SUR-REPLY BRIEF
TO DEFENDANTS’ REPLY BRIEF RE: MOTION TO DISMISS
The Plaintiff James F. Goldberg (“Goldberg”), by and through his undersigned counsel and in accordance with the Chambers Practices of this Court, hereby files a Sur-reply Brief in response to the Defendants’ Brief in Support of Motion to Dismiss.
I. The State’s Reply Brief
In the opening to its Reply Brief, the state accuses Goldberg of misconstruing the law, conflation, and flawed interpretations. As in its Motion to Dismiss the Amended Complaint filed in Kuck, the state uses pejorative terms rather than addressing the three-hundred-and-three (303) paragraphs of specific and non-conclusory allegations which merit further development in this case through discovery.
Similarly, in arguing to dismiss Goldberg in 2008, the state avoided addressing the merits of the Complaint and told this Court that Goldberg’s failure to respond to a motion to dismiss constituted a waiver of opposition. No argument could have been more contrary to the Federal Rules of Civil Procedure and case law or more blatantly in violation of the Office of the Attorney General’s responsibility and obligations to the Court and the individuals it purports to represent than the argument that a plaintiff may not rest on his or her pleadings in the Court’s determination of a motion to dismiss. See Goldberg v. Danaher, 599 F.3d 181, 183 (2d Cir. 2010) (“Local Rule 7(a)(1) provides that failure to submit a memorandum in opposition “may be deemed sufficient cause to grant the motion, except where the pleadings provide sufficient grounds to deny the motion.” D. Conn. L. Civ. R. 7(a)(1) (emphasis added). Thus, by the Local Rule's own terms, automatic dismissal is not appropriate where the pleadings themselves establish a viable claim. A district court relying on Local Rule 7(a)(1) is therefore obliged to consider the pleadings and determine whether they contain sufficient grounds for denying a motion to dismiss.”).
The Court believed the state and adopted the state’s position that Goldberg had waived his opposition to the motion to dismiss. The Court dismissed Goldberg’s Complaint on July 22, 2008, and was reversed by the Second Circuit on March 22, 2010, after the expenditure of time and resources which Goldberg, similar to most plaintiffs, does not possess. The state of course has all the resources taxes afford. The cost of frivolous and dilatory motions is borne by the individuals who pay the taxes.
The extent of the state’s misrepresentation to the Court was clarified for the Court in a Motion for Reconsideration filed by Goldberg following the dismissal and prior to the expense of an appeal. Goldberg asked the Court to “reconsider the standard used in determining the Motion to Dismiss; reconsider the application of a waiver doctrine to the absence of a Sur-Reply Brief; render a decision on Plaintiff’s Motion to Amend; and render decisions on Plaintiff’s Motion for Temporary Restraining Order Seeking Emergency Relief and Plaintiff’s Motion for Preliminary Injunction.” (Pl.’s Mot. for Reconsideration at 2, doc. #41) Goldberg told the Court that the state had misrepresented Rule 7(a)(1) in its reply brief by omitting pertinent text and replacing that pertinent text with ellipses.
In the Defendants’ Reply Brief in Support of Their Motion to Dismiss dated May 21, 2008, (doc. # 35), the Defendants state that “[f]ailure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant a motion … .” (Defs.’ Reply Brief at 2) (doc. # 35.) The ellipses in Defendants’ quote take the place of the portion of the rule which reads: “except where the pleadings provide sufficient grounds to deny the motion.” D. Conn. L. Civ. R. 7(a)(1).
(Pl. Mot. for Reconsideration at 7, doc. #41) The Court denied Goldberg’s Motion for Reconsideration without written decision.
And more than two years later, the Office of the Attorney General tells this Court that it is Goldberg who misconstrues the law, sets forth flawed interpretations, and provides the Court with no relevant discussion. The Office of the Attorney General’s pejorative attack on Goldberg and his Amended Complaint is no less than a perversion of justice where the only goal is to deceive a Court into dismissing valid claims by casting illogical, attenuated, messy arguments into a jumble with an expectation that a crowded court docket and the plaintiff’s lack of resources to appeal will convince the Court that dismissal is prudent.[1]
II. The Amended Complaint
As in Kuck v. Danaher, Docket No. 3:07cv1911(VLB), Goldberg’s “principal claim is a procedural due process challenge alleging that DPS-in tandem with the Board of Firearms Permit Examiners (“the Board”)-has a practice of improperly denying permits, unnecessarily prolonging the appeals that follow, and then quietly resolving disputes at the last minute.” Kuck v. Danaher, 600 F.3d 159, 160 (2d Cir. 2010). Goldberg’s Amended Complaint also alleges claims in four counts of unlawful property seizure, denials of procedural and substantive due process, and retaliation, brought pursuant to 42 U.S.C. § 1983, arising from violations of the First, Second, Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution.
III. Conclusion
For the foregoing reasons and those reasons set forth in Plaintiff’s opposition memorandum, the Plaintiff respectfully asks that the Court deny the Defendants’ Motion to Dismiss in its entirety.
In accordance with Local Civil Rule 7(a)(1), Goldberg asserts that each of the five (5) counts in his three-hundred-and-three (303) paragraph Amended Complaint is sufficiently pleaded for the Court to deny the motion.
The opposition memorandum and sur-reply brief supplement but do not diminish the sufficiency of the Amended Complaint.
PLAINTIFFS
JAMES F. GOLDBERG, individually and on behalf of others similarly situated
BY: /s/ Rachel M. Baird
Rachel M. Baird
(ct12131)
Law Offices of Rachel M. Baird
379 Prospect Street
Torrington CT 06790-5238
Tel: (860) 626-9991
Fax: (860) 626-9992
Email: rbaird@rachelbairdlaw.com
[1] The state attaches the transcript of a Ruling in the matter of Goldberg v. Glastonbury, Docket No. 3:07cv1733(SRU), and describes the case as Goldberg’s “unsuccessful suit against the Glastonbury Police Department … .” (Defs.’ Reply Br. at 4) The state fails to inform the Court that an appeal from the ruling is pending. See Appellant’s Brief at Ex. 1. The Appellees’ Brief is due June 12, 2011.
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