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Twombley Baker 126 Response

Twombley Baker 126 Response

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Published by Alan Beck
How to bear a Twombley argument
How to bear a Twombley argument

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Published by: Alan Beck on Feb 24, 2013
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02/24/2013

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RICHARD L HOLCOMB (HI Bar No. 9177)Holcomb Law, A Limited Liability Law Corporation1136 Union Mall, Suite 808Honolulu, HI 96813 Telephone: (808) 545-4040Facsimile: (808) 356-1954Email: rholcomblaw@live.comALAN BECK (HI Bar No. 9145)Attorney at Law4780 Governor DriveSan Diego, California 92122 Telephone: (619) 971-0414Email: ngord2000@yahoo.comKEVIN O’GRADY (HI Bar No. 8817) The Law Office of Kevin O’Grady, LLC1136 Union Mall, Suite #808Honolulu, HI 96813 Telephone: (808) 521-3367Facsimile: (808) 521-3369Email: Kevin@CriminalAndMilitaryDefenseHawaii.ComAttorneys for Plaintiff Christopher Baker
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAII
CHRISTOPHER BAKER,Plaintiff,vs.LOUIS KEALOHA, as an individual andin his official capacity as Honolulu Chief of Police;STATE OF HAWAII;CITY AND COUNTY OF HONOLULU;HONOLULU POLICE DEPARTMENT;NEIL ABERCROMBIE, in his officialcapacity as Hawaii Governor,Defendants. _________________________ )))))))))))))))))CASE NO. CV11-00528 ACK-KSCPLAINTIFF CHRISTOPHERBAKER’S RESPONSE TODEFENDANTS CITY AND COUNTYOF HONOLULU AND DEFENDANTLOUIS KEALOHA’S MOTION TODISMISS
Case 1:11-cv-00528-ACK -KSC Document 38 Filed 02/16/12 Page 1 of 14 PageID #:350
 
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PLAINTIFF CHRISTOPHER BAKER’SRESPONSE TO DEFENDANTS’ MOTION TO DISMISS
Mr. Baker submits the following response to Defendants City and County of Honolulu and Chief Kealohas Motion to Dismiss, filed pursuant to Rule 12(b)(6)of the Federal Rules of Civil Procedure. Mr. Baker addresses only Defendantscontentions that Mr. Baker’s Complaint did not comply with Rule 8(a) of theFederal Rules of Civil Procedure and that Defendant Kealoha, in his officialcapacity, should be dismissed from the suit. The remainder of Defendants’ claims,Mr. Baker leaves to the Court’s discretion.
A. Mr. Bakers Complaint conforms to the rules of pleading.
Defendants City and County of Honolulu and Chief Louis Kealoha firstcomplain that it is too difficult to answer Mr. Baker’s Complaint. Mr. Baker hasalleged that numerous laws and actions of Hawaii and Honolulu officials areunconstitutional. And while Mr. Baker concedes that it must be exceedinglydifficult to offer justification for such laws and actions following District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020 (2010), such difficulty is not occasioned by the languageof Mr. Baker’s Complaint. Accordingly, Defendants’ motion in this regard shouldbe denied for at least three reasons:1.
 
Mr. Baker’s Complaint consists of “clear and concise averments statingwhich defendants are liable to [Mr. Baker] for which wrongs, based on theevidence.” McHenry v. Renne, 84 F.3d 1172, 1178 (9
th
Cir. 1996).
Case 1:11-cv-00528-ACK -KSC Document 38 Filed 02/16/12 Page 2 of 14 PageID #:351
 
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Indeed, Defendants State of Hawaii and Governor Abercrombie cogentlyand timely answered the Complaint. And throughout the remainder of theinstant motion, these Defendants, themselves, were capable of attributing(what they now aver are) infirmities to the Complaint, often with specificparagraph citations;2.
 
Mr. Baker challenges a comprehensive statutory scheme and the relatedactions of government officials that have violated Mr. Baker’sconstitutional rights in numerous ways. Mr. Baker has plainly averredthat the statutes at issue are unconstitutional and identified theconstitutional rights those statutes/actions violate and how so. Thesweeping nature of the statutory scheme and the number of constitutionalrights affected necessitate the Complaint’s length; and3.
 
It is fair to assume that in (almost) every case, Defendants would takeissue with Plaintiff’s recitation of facts and Plaintiff’s contention of entitlement to relief. The only difference between this and a tort case isthat Plaintiff has necessarily pled that various statutes are unconstitutional. These allegations are not argumentative or conclusive. To so hold wouldcripple any Plaintiff’s ability to challenge unconstitutional statutes orgovernment officials’ actions.Each fact alleged in a complaint is necessarily defined by the Plaintiff, whois required to “show that the Plaintiff is entitled to relief.” Fed.R.Civ.P., Rule8(a)(2). In this case, Mr. Baker has done so. Yet, in order to assert his claims, Mr.Baker must challenge the entirety of a sweeping statutory scheme that, Mr. Bakerbelieves, violates a number of constitutional rights. In order for those claims to bepreserved, Mr. Baker must of course raise them in his Complaint. And, it is thisnecessity that occasions the length of the Complaint. Defendants unfairlycharacterize the Complaint as prolix or repetitive in nature.It is difficult to identify the crux of the Defendantsgrievance against theComplaint. In one sentence, they seem to argue that Mr. Baker should have,
Case 1:11-cv-00528-ACK -KSC Document 38 Filed 02/16/12 Page 3 of 14 PageID #:352

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