the torture continues: Schindlers file amended complaint

[onenote]

http://abstractappeal.com/schiavo/AmendedComplaint.pdf

They've added several new claims not stated in the complaint that Judge Greer, the 11th Circuit,and the Supremes all refused to consider. In particular, they're alleging that Terris being denied her rights under the ADA, her statutory right not to be discriminated against on account of her disability, her rights to protection against "cruel and unusual punishment", and finally, violation of her due process right to have her wishes determined by clear and convincing evidence.

This last claim is the one I had expected the family to make made in the first complaint since it allows them to argue that there has to be a de novo (new) review of the evidence regarding her wishes. (Her earlier due process claims focused on procedures not the substance).

Its gonna be interesting to see how the courts treat this....

onenote

[LuminousX]

1. What I hope happens

A brand new judicial review with new judges!

I humbly apologize to the Schiavo's for wanting to prolong Terri's suffering for political gain, but the fact of the matter is the longer this stays front and center, the more it will cause rifts in the GOP.

[Lindacooks]

2. When do all of these claims become frivolous?

These people are wasting the court's time trying to get the result they want after years and years and years of consistently losing.

Can't the courts issue some kind of contempt of court citation against them?

How strange that the Repukes aren't whining about 'frivolous lawsuits' in this case!! NOT.

[ClintonTyree]

9. Exactly..............

how much of the State of Florida's and Federal money has been wasted on appeal, after appeal, after appeal?

Yet they want to cap, or even eliminate, judgments against shady Corporations making dangerous products, or Doctors who in all honesty, shouldn't be Doctors? Bullshit.

[latteromden]

3. Cruel and unusual punishment, INDEED!!!!!

I don't usually use more than one exclamation point, but that's ridiculous. Cruel and unusual punishment is keeping this case alive for 7 years, believing that Terri will miraculously recover after being in this state for 15 years, and keeping her alive in that state is CRUEL.

*sigh*

[rsdsharp]

4. The complaint shouldn't survive a motion to dismiss

based on res judicata and issue splitting. The thing has already been adjudicsted (res jusicata), and in the interests of judicial economy, any claims not made in the previous action are deemed waived.

[fryguy]

12. i was thinking the same thing, however

the claims in the complaint have not been finally adjudicated, rather the appeals to the 11th and the Supreme Court involved the issuance of the preliminary injunction. the standard used in the courts' determinations (as in in every PI or TRO) was irreparable injury and substantial likelihood of success on the merits. so while the court found that there wasn't the likelihood of success they never reached the merits of the case or decided the issue of the claims so res judicata wouldn't apply yet.

[Jersey Devil]

19. True - The Complaint itself has not been adjudicated

and they would not even need a motion to amend the complaint since the original was filed only 3 days ago.

[fryguy]

23. unless an answer was submitted

per FRCP 15(a)

[Jersey Devil]

24. yes, of course - my head is spinning

Something tells me that Whittemore is going to be one pissed off judge tonight.

I mean, what are they going to say to him? Maybe, "Excuse me, your honor, but we fucked up the first time so now we're back to try to do it the right way"?

[fryguy]

26. no doubt - n/t

[Avalux]

5. Jury Requested

That's on there too - wouldn't THAT be a hoot.

What evidence is there of her wishes other than the conversation she had with her husband and two others?

[fryguy]

7. its standard for such pleadings - n/t

[Avalux]

13. Thanks - didn't know that

[Hand]

10. Well, that'd sure as hell run out the clock.

Jury selection alone would take... oh, forever or so.

BRAP! GAME OVER!

[fryguy]

6. are they permitted to amend the complaint as a matter of right

since it has already been appealed? i thought they could only do this now with leave of the court?

[Just Me]

15. My guess is that they still have another 20+ days to amend.

(Don't have federal procedure rules handy). However, I still do not believe their claims will be found likely to succeed on the merits.

[fryguy]

17. not if a reply was filed

pulling out my well-used copy of the Rules

Rule 15(a) permits amending as a matter of course once any time before a complaint is answered - or, if no answer is permitted at any time within 20 days. in this case an answer was clearly permitted and filed, which means they could only amend with leave of the court - which is, however, given freely when justice requires.

* * *

http://www.law.cornell.edu/rules/frcp/Rule15.htm

FRCP 15(a)

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

[Jersey Devil]

20. Do we know if M Schiavo filed an Answer?

I know they filed briefs but was an answer ever filed?

[fryguy]

25. i tried to find out

but my westlaw subscription doesn't permit searching pleadings.....

however, it would surprise me if an answer wasn't filed and the judge relied only on the oral argument presented by the defendants

[LizW]

8. Can you amend a complaint

in a case that has already been decided AND appealed to two higher courts? I've never heard of such.

It's beginning to sound like the lawyers are just soaking the desperate parents now.

[Walt Starr]

11. Actually, all that was appealed wa the decision not to reinsert

the feeding tube.

The case itself can still proceed, but it will be moot in a few days.

[fryguy]

16. i think they would still need leave of court to do so

FRCP 15(a):

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

* * *

i believe that the original filing required an answer, which was served, meaning that the party could only amend with leave of the court. now leave of the court is "freely given when justice requires" but it is still up to the court to give...

[Jersey Devil]

21. I think that is true only if an Answer (Reply) was filed, but

since the issues raised in the complaint were argued fully in court, could the case not be considered as "adjudicated" already though no final judgment has been entered?

I think the judge considered it "over" since no trial was ever scheduled and no orders for discovery, etc. were ever entered.

[LifeofDGale]

18. Walt,

In laymans terms, what do you think will happen with this round with Judge Whittemore??? Thanks in advance

[Walt Starr]

27. He'll throw it out

He won't even listen to it, then they'll go back to the 11th Circuit Court of Appeals, who will throw it out and they'll go back to the SCOTUS who will deny it.

Seriously, I think the nuclear option by Jeb is what will really happen.

[K-W]

14. This is nothing new.

They just keep piling on the same arguments over and over again.

Until they come up with some new facts instead of old arguments and unsubstantiated claims this is over.

[merh]

22. This is what they should have filed in the first place, after Congress

passed it's bill of attainder.

The Motion for TRO/Injunctive relief limited the Court's abililty to review the issues.

Now they can ask for expediated consideration. Now the Court will have to address the constitutionality of Terri's law.

[AngryOldDem]

28. Why didn't they raise these points before?

None of this is late-breaking stuff. And I don't think you hold in reserve your arguments in a lawsuit just in case some of your other points don't work. You present your entire case, and let the court do the rest, as the Schindlers should know by now.

They can go to every court from now till hell freezes over, and the answer will still be the same.

At what point do these appeals become frivolous?

Just how more clearly can the courts say, "APPEAL DENIED"?

[LawDem]

29. They can amend, but no chance they'll receive relief

There's little doubt they're permitted to amend their petition/complaint at this point -- either without court order (if no answer filed) or with court order (amendments are liberally allowed). But on the merits their theories sound incredibly weak. I'm also not convinced the judge is required to grant a hearing on a new TRO request just because the petition has been amended.