smac97 Posted January 20, 2022 Author Posted January 20, 2022 An update: On January 7 the Church's attorneys filed a "Reply" to Gaddy's opposition to the Motion to Dismiss. Here's a link. From the "Introduction" section: Quote Plaintiffs continue to play a game of First Amendment Whac-A-Mole. Each time the Court rejects a particular claim or legal theory on First Amendment grounds, it reappears in the next version of the Complaint. In each iteration of the Complaint, Plaintiffs’ allegations regarding tithing and Church finances become more inextricably intertwined with their challenges to core Church doctrines and teachings. In reality, Plaintiffs’ tithing-fraud claims are just another vehicle for yet another attack on the Church’s religion. Plaintiffs have proven themselves incapable of pleading a justiciable secular claim. The Church respectfully urges that it is time for this game to end. The vast majority of Plaintiffs’ opposition memorandum (the “Opposition”) is devoted to rearguing the same First Amendment issues the Court has already ruled upon—twice. Plaintiffs cite the same cases and make the same arguments, now for the third time. But First Amendment jurisprudence has not changed. As this Court has recognized, it cannot “adjudicate fraud claims implicating religious facts.” First Order at 13. “Where a plaintiff brings fraud claims against a church based on religious issues of faith or doctrine, the First Amendment applies as a defense.” Second Order at 21. My perspective on Rule 12 motions may be a bit skewed. I spent some years litigating these in both state and federal courts, and almost always one (I was the one filing the motions to dismiss). This was because A) I was representing banks, B) the banks' legal position was virtually always based on contracts and/or pre-existing legal decisions, C) the legal theories being advanced by the plaintiffs (borrowers) had been hashed and re-hashed many times over, such that the federal courts were essentially being asked to answer the same questions over and over again, which D) substantially reduced the likelihood of a complaint surviving a motion to dismiss. A motion to dismiss is supposed to be a difficult one, one where all sorts of presumptions and such are weighted in favor of the plaintiff. Here, though, I think Gaddy (more specifically, her attorney) is doing what I note above: asking the judge to answer questions that have been previously answered over and over and over. The entire brief is worth a read. Thanks, -Smac 2
JustAnAustralian Posted January 30, 2022 Posted January 30, 2022 Gaddy's lawyer has responded. https://storage.courtlistener.com/recap/gov.uscourts.utd.116009/gov.uscourts.utd.116009.122.0.pdf (433 pages total across attachments etc) Two more plaintiffs, now trying to bring in Palmer's claimed General Authority interview, still banging on about the same doctrinal stuff as before. Is Gaddy's lawyer just bilking her for money at this point? 1
smac97 Posted January 31, 2022 Author Posted January 31, 2022 (edited) 22 hours ago, JustAnAustralian said: Gaddy's lawyer has responded. https://storage.courtlistener.com/recap/gov.uscourts.utd.116009/gov.uscourts.utd.116009.122.0.pdf (433 pages total across attachments etc) Well, sort of. For the non-lawyers who are interested in this: The Church's attorneys filed a "Motion to Dismiss" pertaining to the the second amended complaint (the third iteration of the complaint overall) filed by Gaddy. Gaddy's attorney filed an opposing memorandum to it on December 10, and the Church's attorneys filed a reply to that opposing memo on January 7. Those three documents - the motion, the opposing memorandum, the reply) are the only ones allowed as pertaining to the motion to dismiss. This new filing is a separate motion, filed by Gaddy's attorney, asking for permission to file a third amended complaint. Gaddy's original complaint was filed on 8/5/19. The Church's attorneys filed a motion seeking its dismissal, so Gaddy thereafter sought and obtained permission to file a "First Amended" complaint, which was filed on May 18, 2020. The Church's attorneys again filed a motion seeking dismissal, and Gaddy again sought and obtained permission to file a "Second Amended" complaint, which was filed on October 22, 2021. The Church's attorneys again filed a motion seeking dismissal, which brings us to the above filing, in which Gaddy is asking for permission to file a "Third Amended" complaint. Each amended complaint is intended to fix the errors/omissions of its predecessor. In this regard, Gaddy's attorney, Kay Burningham, appears to be failing pretty hard. I think she is failing not necessarily because she is an incompetent attorney, but because she has taken upon herself a sisyphean task. She wants to sue the Church to put its religious beliefs on trial. She wants a federal judge to adjudicate and falsify the religious beliefs and claims of the Church. That is not what our federal courts are designed to do, and is instead something that our courts are prohibited from doing. I think Burningham knows this, but either A) she is so burned up with animosity against the Church that she doesn't care or has blinded herself to it, or else B) she is doing this not because it has legal merit, but instead purely as a publicity stunt and/or a moneymaking venture. 22 hours ago, JustAnAustralian said: Two more plaintiffs, now trying to bring in Palmer's claimed General Authority interview, still banging on about the same doctrinal stuff as before. “[A] complaint cannot survive dismissal by pleading mere conclusory allegations . . . unsupported by a recitation of relevant surrounding facts.” State v. Apotex Corp., 2012 UT 36, ¶ 21, 282 P.3d 66 (omission in original) (citation and internal quotation marks omitted). Instead, to satisfy this requirement, the claimant must “set forth in specific terms the time, place, content, and manner of [the] defendant’s alleged material misrepresentations or otherwise fraudulent conduct.” Cook v. Zions First Nat'l Bank, 645 F. Supp. 423, 425 (D. Utah 1986). These are what the Utah Court of Appeals has described as “the who, what, when, where, and how: the first paragraph of any newspaper story.” Coroles v. Sabey, 2003 UT App 339, ¶ 28 n.15, 79 P.3d 974 (citation and internal quotation marks omitted). Fraud can be a tough case to present. Burningham has many years of legal experience. If she needs three - going on four - bites at the apple to get the most basic part of her lawsuit (the complaint) correctly written, then that should be telling her something. The Utah Court of Appeals has advised litigants and their attorneys that “[a] complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.” Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972). Seems like Burningham is hoping to "find one." 22 hours ago, JustAnAustralian said: Is Gaddy's lawyer just bilking her for money at this point? I don't know. At least Huntsman had his millions, and so could afford to pay for his not-going-to-go-anywhere lawsuit. I do wonder who is paying for Gaddy's legal fees. Thanks, -Smac Edited January 31, 2022 by smac97 2
Scott Lloyd Posted January 31, 2022 Posted January 31, 2022 6 hours ago, smac97 said: Well, sort of. For the non-lawyers who are interested in this: The Church's attorneys filed a "Motion to Dismiss." Gaddy's attorney filed an opposing memorandum to it on December 10, and the Church's attorneys filed a reply to that opposing memo on January 7. Those three documents - the motion, the opposing memorandum, the reply) are the only ones allowed as pertaining to the motion to dismiss. This new filing is a separate motion, filed by Gaddy's attorney, asking for permission to file a third amended complaint. Gaddy's original complaint was filed on 8/5/19. The Church's attorneys filed a motion seeking its dismissal, so Gaddy thereafter sought and obtained permission to file a "First Amended" complaint, which was filed on May 18, 2020. The Church's attorneys again filed a motion seeking dismissal, and Gaddy again sought and obtained permission to file a "Second Amended" complaint, which was filed on October 22, 2021. The Church's attorneys again filed a motion seeking dismissal, which brings us to the above filing, in which Gaddy is asking for permission to file a "Third Amended" complaint. Each amended complaint is intended to fix the errors/omissions of its predecessor. In this regard, Gaddy's attorney, Kay Burningham, appears to be failing pretty hard. I think she is failing not necessarily because she is an incompetent attorney, but because she has taken upon herself a sisyphean task. She wants to sue the Church to put its religious beliefs on trial. She wants a federal judge to adjudicate and falsify the religious beliefs and claims of the Church. That is not what our federal courts are designed to do, and is instead something that our courts are prohibited from doing. I think Burningham knows this, but either A) she is so burned up with animosity against the Church that she doesn't care or has blinded herself to it, or else B) she is doing this not because it has legal merit, but instead purely as a publicity stunt and/or a moneymaking venture. “[A] complaint cannot survive dismissal by pleading mere conclusory allegations . . . unsupported by a recitation of relevant surrounding facts.” State v. Apotex Corp., 2012 UT 36, ¶ 21, 282 P.3d 66 (omission in original) (citation and internal quotation marks omitted). Instead, to satisfy this requirement, the claimant must “set forth in specific terms the time, place, content, and manner of [the] defendant’s alleged material misrepresentations or otherwise fraudulent conduct.” Cook v. Zions First Nat'l Bank, 645 F. Supp. 423, 425 (D. Utah 1986). These are what the Utah Court of Appeals has described as “the who, what, when, where, and how: the first paragraph of any newspaper story.” Coroles v. Sabey, 2003 UT App 339, ¶ 28 n.15, 79 P.3d 974 (citation and internal quotation marks omitted). Fraud can be a tough case to present. Burningham has many years of legal experience. If she needs three - going on four - bites at the apple to get the most basic part of her lawsuit (the complaint) correctly written, then that should be telling her something. The Utah Court of Appeals has advised litigants and their attorneys that “[a] complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.” Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972). Seems like Burningham is hoping to "find one." I don't know. At least Huntsman had his millions, and so could afford to pay for his not-going-to-go-anywhere lawsuit. I do wonder who is paying for Gaddy's legal fees. Thanks, -Smac One wonders how many such incompetent do-overs the judicial system will tolerate.
Scott Lloyd Posted January 31, 2022 Posted January 31, 2022 6 hours ago, smac97 said: In this regard, Gaddy's attorney, Kay Burningham, appears to be failing pretty hard. I think she is failing not necessarily because she is an incompetent attorney, but because she has taken upon herself a sisyphean task. She wants to sue the Church to put its religious beliefs on trial. She wants a federal judge to adjudicate and falsify the religious beliefs and claims of the Church. This reminds me of the first John D. Lee trial in the Mountain Meadows Massacre, the one that ended with a hung jury. The case failed because the prosecutor in his hostility was focused more on besmirching and destroying the Church of Jesus Christ than on convicting the defendant.
smac97 Posted January 31, 2022 Author Posted January 31, 2022 35 minutes ago, Scott Lloyd said: One wonders how many such incompetent do-overs the judicial system will tolerate. We're well over 2 years into the litigation. I anticipate that the judge will adjudicate the Second Amended Complaint and dismiss it for substantially the same reasons as the Court has previously explained. I further suspect the judge will not allow Burningham to file a fourth iteration of the complaint (the proposed "Third Amended Complaint"). If I am correct on both of these points, then the lawsuit will be over, at which point Burningham would, I think, file an appeal to the Tenth Circuit. If that happens, I anticipate that the Tenth Circuit will uphold the trial court's decision. This is just not a very good lawsuit. Thanks, -Smac 1
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