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CASE NO: 12-6634

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Van R. Irion LAW OFFICES OF VAN R. IRION 9040 Executive Park Drive, Ste. 200 Knoxville, TN 37923 (423) 208-9953 van@irionlaw.com Counsel for Appellants

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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ------------♦------------

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NATIONAL DEMOCRATIC PARTY OF THE USA INC.; DEMOCRATIC NATIONAL COMMITTEE; DEBBIE WASSERMAN SCHULTZ; and CHIP FORRESTER Defendants/Appellees ------------♦------------

BRIEF OF THE APPELLANTS’ Oral Argument Requested

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LIBERTY LEGAL FOUNDATION; JOHN DUMMETT; LEONARD VOLODARSKY; and CREG MARONEY Plaintiffs/Appellants,

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In The United States Court of Appeals For The Sixth Circuit

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS Sixth Circuit Case Number: 12-6634

Pursuant to 6th Circuit Rule 26.1, Liberty Legal Foundation makes the following disclosures:

1. Is said party a subsidiary or affiliate of publicly owned corporation? No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No. _s/Van R. Irion________ Van R. Irion

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It is hereby certified that on the 8th of Adar, Year of our Lord 2013 (a.k.a. February 19, 2013), a copy of the foregoing was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.

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CERTIFICATE OF SERVICE

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Adar 8, 2013 (a.k.a. February 19, 2013) Date

_s/Van R. Irion_________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiffs (423) 208-9953

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Case Name: Liberty Legal Foundation v. National Democratic Party of the USA Inc.

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TABLE OF CONTENTS
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Table of Authorities Statement Regarding Oral Argument Statement of Issues Presented for Review Statement of Subject Matter Jurisdiction A. Jurisdiction in the District Court

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Statement of the Case Statement of Facts

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B. Jurisdiction in the Court of Appeals

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Summary of the Argument Argument

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A. Background

B. Standard of Review C. Clearly Erroneous Findings of Fact D. Competitive-Candidate Standing is Well-Established

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E. Standing for One Plaintiff Allows All Plaintiffs to Proceed 25 F. Abuse of Discretion by Refusing to Allow Amendment G. Abuse of Discretion by Clear Misconstruction of Its Own Local Rule 26 27

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5-7 8 9 10 10 10 11 12 13 16 16 18 20 22

Table of Contents

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Disclosure of Corporate Affiliations and Financial Interests

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TABLE OF CONTENTS (cont.) H. District Court Denied Attorney Irion Adequate Due Process 30 I. Advocating A Case of First Impression Is Sanctionable Only When “Utterly Unsupportable” Conclusion Certificate of Compliance Certificate of Service Designation of Relevant Court Documents 31

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34 36 37 38

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TABLE OF AUTHORITIES Cases ACLU v. Nat’l Sec. Agency, 493 F.3d 644 (6th Cir. 2007) Brown v. Matauszak, 415 Fed.Appx. 608 (6th Cir. 2011) Cook v. American S.S. Co., 134 F.3d 771 (6th Cir. 1998) Drake v. Obama, 664 F.3d 774 (9th Cir. 2011) Page 23

17, 26, 27

Fulani v. Hogsett, 917 F.2d 1028 (7th Cir. 1990) Geier v. Sundquist, 372 F.3d 784 (6th Cir. 2004)

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Eastway Construction Corp. v. City of New York, 762 F.2d 243 (2nd Cir. 1985)

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Hall v. Liberty Life Assur. Co. of Boston, 595 F.3d 270 (6th Cir. 2010) Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008)

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Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Massachusetts v. EPA, 549 U.S. 497 (2007)

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Mone v. C.I.R., 774 F.2d 570 (2nd Cir. 1985)

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30 Passim 14, 19, 33 24 19, 20, 27, 29 16, 19, 20, 22 14, 16, 22 21 25, 26 14, 15, 19, 31-34

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TABLE OF AUTHORITIES (cont.) Cases Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008) Owen v. Mulligan, 640 F.2d 1130 (9th Cir. 1981) Ozee v. Amer. Council on Gift Annuities, Inc., 143 F.3d 937 (5th Cir. 1998) Page 23

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Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370 (6th Cir. 1987) Tex. Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) United States v. U.T. Alexander, 981 F.2d 250 (5th Cir. 1993) U.S. v. Ross, 535 F.2d 346 (6th Cir. 1976)

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Schulz v. Williams, 44 F.3d 48 (2nd Cir. 1994)

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White v. United States, 601 F.3d 545 (6th Cir. 2010) Statutes 28 U.S.C. § 1291

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28 U.S.C. § 1927

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Constitution U.S. Constitution Art. II § 1

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Red Carpet Studios Div. of Source Advantage, Ltd. V. Sater, 465 F.3d 642 (6th Cir. 2006)

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15, 31, 34 19 14, 16, 22, 23 15, 31 14, 16, 22 15, 32 18, 32 21 10 Passim 24

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TABLE OF AUTHORITIES (cont.) Rules Fed. R. Civ. P. 11 Fed. R. App. P. 32 6th Cir. R. 32 District Court for the Western District of Tennessee Local Rule 7.3 Dictionaries Black’s Law Dictionary Bryan Garner ed., 7th ed., West (1999) Page 30 36

36 28

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Secondary Sources Federal Practice and Procedure Charles Wright, Arthur Miller & Mary Kay Kane 3rd ed., West (2010)

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31 26

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STATEMENT IN SUPPORT OF ORAL ARGUMENT

Plaintiff-Appellants believe that oral argument is necessary in order for all facts and issues to be adequately presented to this Court.

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dramatically chill attorney advocacy for enforcement of the U.S. Constitution,

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Because failure to correct the District Court’s error in this case would

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STATEMENT OF ISSUES PRESENTED FOR REVIEW A. Whether the District Court abused its discretion by grounding its sanctions order upon clearly erroneous findings of fact.

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C.

D.

E.

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Whether the District Court failed to provide Plaintiff’s attorney with adequate procedural due process prior to sanctioning said attorney.

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Whether the District Court abused its discretion by misconstruing its own local rule in a manner that clearly runs contrary to the plain language of said rule.

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Whether the District Court abused its discretion by dismissing Plaintiff’s complaint without leave to amend despite the Court’s own acknowledgement that facts could have been pled that would have supported standing.

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Whether the District Court abused its discretion by sanctioning Plaintiffs’ attorney pursuant to section 1927 for said attorney’s advocacy for a reasonable extension of precedent in a case of first impression regarding enforcement of the U.S. Constitution.

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STATEMENT OF SUBJECT MATTER JURISDICTION A. JURSIDICTION IN THE DISTRICT COURT

negligence and fraud in relation to enforcement of Tennessee State Election Codes.

have required enforcement of the U.S. Constitution, said issues were pendant to the

However, in order to litigate in a forum more favorable to the Defendants,

objected, pointing out that alternative claims were grounded in state-law, and the State of Tennessee’s interests in the enforcement of its own State Election Code. Memo. Mot. Remand, R.13, Page ID#122-217. The District Court denied Plaintiffs’ motion to remand. Or. Denying Remand, R.18, Page ID#147-158. B. JURISDICTION IN THE COURT OF APPEALS This appeal is from a judgment entered by the District Court on December 4,

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2012, granting Defendants’ petition for attorneys’ fees pursuant to Defendants’ motion for sanctions. Judgment, R.54, Page ID#710; Or. Granting Fees, R.53, Page

ID#693-709; Or. Granting Sanctions, R.32, Page ID#489-510). This Court has jurisdiction by virtue of 28 U.S.C. § 1291. The Plaintiffs-Appellants filed a timely notice of appeal on December 27, 2012. Notice of Appeal, R.55, Page ID#711.

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the Defendants removed the instant litigation to Federal Court. The Plaintiffs

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primary claims, and asserted only well-established U.S. Supreme Court precedent.

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While the Plaintiffs’ complaint did raise additional causes of action that would

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This action was filed in Tennessee State Court, alleging common law

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STATEMENT OF THE CASE

Plaintiffs’ attorney “should have known that Plaintiffs lacked standing to pursue

Plaintiff’s assertion of standing was founded upon the doctrine of

challenge the qualifications of a rival candidate running for the same elective

Sanct., R.29, Page ID#391-413 at 409.

The District Court distinguished the instant case from precedent supporting competitive-candidate standing by concluding that write-in candidates do not qualify for competitive-candidate standing. Or. Granting Sanctions, R.32, Page

instant case and precedent created a ruling of first impression: “Plaintiffs have

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cited, and the Court is aware of, no legal authority standing for the proposition that a write-in candidate who was not a political party’s nominee for office could have competitive standing to challenge a rival’s qualifications.” Id. at 13, second full sentence.

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ID#489-510 at 498. The Court’s order established that its distinction between the

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office. Or. Dismissing Compl., R.31, Page ID#496-488 at 481; Plf.s’ Opp. Mot.

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competitive-candidate standing, in which a candidate for elective office can

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their claims.” Or. Granting Sanctions, R.32, Page ID#489-510 at 496.

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Plaintiffs’ attorney pursuant to 28 U.S.C. §1927. The District Court found that

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This is an appeal of the District Court’s imposition of sanctions against

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The District Court’s order dismissing Plaintiffs’ complaint noted several facts that could have been pled, and would have been supportive of Plaintiff’s

the Court dismissed Plaintiffs’ complaint without leave to file an amended

The District Court denied Plaintiffs’ motion to reconsider. Or. Denying Mtn.

The District Court never issued an order to show cause prior to granting

Defendants’ motion for sanctions. Plf.s’ Opp. Mot. Sanct., R.29, Page ID#391-413 at 391; Or. Granting Sanctions, R.32, Page ID#489-510. STATEMENT OF FACTS

Plaintiff John Dummett was a candidate for President during the November 2012 election. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 at

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¶¶31,32,49.1 Plaintiff Dummett met all requirements and documentation to qualify as a write-in candidate pursuant to Tennessee State Election Code. Plf.s’ Suppl.

Resp., R.24-1, Page ID#295-303 at 303; Dummett Write-In Cert, R.24-2, Page ID#304; Plf.s’ Opp. Mot. Sanct., R.29, Page ID#391-413 at 392-393; also

The Complaint upon which the District Court’s sanctions are founded was never filed by plaintiffs in Federal Court. The only place this complaint appears in the record is as an exhibit to the Defendants’ notice of removal.
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sanctions. The Court also denied Plaintiffs’ written request for a hearing regarding

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to Recons., R.51, Page ID#682-690.

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complaint. Id. at 15.

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assertion of standing. Or. Dismissing Compl., R.31, Page ID#496-488 at 482. Yet

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acknowledged by the District court at Or. Denying Mtn. to Recons., R.51, Page ID#682-690, FN12. Plaintiff Dummett registered with the Tennessee Secretary of State as a write in candidate pursuant to Tennessee State Election Code. Id. Said registration was completed several months prior to the deadline established by

Federal Election Commission as a Presidential candidate. 1st Amd. Compl. as filed

in Tennessee. Plf.s’ Mtn. Stay, R.34, Page ID#510-519 at 515, FN1. Registered

Tennessee. Id. Plaintiff Dummett alleged that the Defendants’ actions would harm Plaintiff Dummett by resulting in an unfair advantage during the election. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 at ¶¶33,49. Plaintiff Liberty Legal Foundation is a non-profit Tennessee Corporation

State Ct., R.1-2, Page ID#29-47 at ¶26. Plaintiff Dummett is a member of Liberty

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Legal Foundation. Id. at ¶¶27,29,30. SUMMARY OF THE ARGUMENT

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For all the reasons set forth below, the District Court’s order sanctioning

attorney Irion is a gross abuse of discretion. Upholding the order at issue would “stifle the enthusiasm or chill the creativity that is the very lifeblood of the law.”
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with more than 30,000 members across all 50 states. 1st Amd. Compl. as filed in

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voters in Tennessee intended to cast votes for Plaintiff Dummett in the State of

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in State Ct., R.1-2, Page ID#29-47 at ¶¶31,32. Plaintiff Dummett was campaigning

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Tennessee State Election Code. Id. Plaintiff Dummett was also registered with the

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Mone v. C.I.R., 774 F.2d 570, 574 (2nd Cir. 1985); quoting Eastway Construction

Constitution enforced. Failure to reverse the District Court’s order would signal to

personal sanctions against attorneys. Such a result would have a devastating effect

The District Court found that Plaintiffs’ attorney was “more than negligen[t]

standing. Or. Granting Sanctions, R.32, Page ID#489-510 at 496. However, attorney Irion’s assertion of standing was founded upon well-established doctrine. Drake v. Obama, 664 F.3d 774, 782-3 (9th Cir. 2011); citing Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H. 2008); Tex. Democratic Party v. Benkiser, 459 F.3d

1994). At most, attorney Irion’s assertion amounts to advocating a reasonable

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extension of existing precedent. The District Court’s own order sanctioning attorney Irion establishes that the

Court’s denial of standing in the instant case is a ruling of first impression. Or. Granting Sanctions, R.32, Page ID#489-510 at 496. Precedent from this and other

Circuits all agree that sanctions should not be imposed under the circumstances

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582, 586-87 & n.4 (5th Cir.2006); and Schulz v. Williams, 44 F.3d 48, 53 (2nd Cir.

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or incompeten[t]” and that he should have known that the Plaintiffs lacked

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on future efforts to enforce the U.S. Constitution.

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attorneys that legitimate attempts to enforce the Constitution will now result in

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effect, the challenged order sanctions an attorney for his attempt to have the U.S.

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Corp. v. City of New York, 762 F.2d 243, 254 (2nd Cir.1985). Multiplying this

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presented in the instant case. Smith v. Detroit Federation of Teachers Local 231,

States v. U.T. Alexander, 981 F.2d 250, 253 (5th Cir. 1993).

sanctions, the Court’s finding of lack of standing in the underlying lawsuit was

error, the Court’s further step in sanctioning attorney Irion represents an abuse of

dismissal for lack of standing was arguably an error, then the Court’s sanctioning of attorney Irion is an abuse of discretion of a higher order. The District Court’s order granting sanctions mistakenly found that facts which were actually pled, were not pled. The order misconstrued the type of harm

allegations were too speculative. This finding is in direct contravention of

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precedent on exactly the type of standing asserted. The Court refused to allow Plaintiffs to amend their complaint, despite the Court’s knowledge that facts existed that would have satisfied the Court’s conception of standing in the instant case. For all of these reasons the District Court’s order sanctioning Plaintiffs’ attorney is an abuse of discretion, and therefore must be reversed.

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being pled. This misunderstanding of the harm led the Court to find that standing

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discretion compounding an earlier erroneous ruling. If the District Court’s

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also an abuse of discretion. Because the finding of lack of standing was itself an

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While this appeal challenges only the District Court’s imposition of

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Amer. Council on Gift Annuities, Inc., 143 F.3d 937, 941 (5th Cir. 1998); United

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829 F.2d 1370 (6th Cir. 1987); Mone v. C.I.R., 774 F.2d 570 (2nd Cir.1985);Ozee v.

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ARGUMENT A. Background

28 U.S.C. §1927, finding that he “should have known that Plaintiffs lacked

at 496. The Court concluded that attorney Irion’s actions were “more than

595 F.3d 270, 275 (6th Cir. 2010).

established doctrine of competitive-candidate standing in which a candidate may challenge the qualifications a rival candidate running for the same elective office. Or. Dismissing Compl., R.31, Page ID#496-488 at 481; Plf.s’ Opp. Mot. Sanct., R.29, Page ID#391-413 at 409. “This notion of ‘competitive standing’ has been

2011); citing Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H. 2008); Tex.

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Democratic Party v. Benkiser, 459 F.3d 582, 586-87 & n.4 (5th Cir.2006); and Schulz v. Williams, 44 F.3d 48, 53 (2nd Cir. 1994). The District Court’s order distinguished the instant case from Drake by

finding that Plaintiff Dummett had failed to plead “that President Obama’s presence on the ballot would in any way injure his campaign.” Or. Granting

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recognized by several circuits.” Drake v. Obama, 664 F.3d 774, 782-3 (9th Cir.

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However, Plaintiffs’ assertion of standing was founded upon the well-

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negligence or incompetence.” Id.; citing Hall v. Liberty Life Assur. Co. of Boston,

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standing to pursue their claims.” Or. Granting Sanctions, R.32, Page ID#489-510

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The District Court imposed sanctions against Plaintiffs’ attorney pursuant to

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Sanctions, R.32, Page ID#489-510 at FN21; citing Or. Dismissing Compl., R.31, Page ID#496-488. However, this factual finding is an obvious error. Plaintiff Dummett actually did allege that the appearance of Obama’s name on Tennessee

ballots would harm Dummett by resulting in an unfair advantage during the

Additionally, the District Court’s order stated that Plaintiff Dummett failed

Tennessee intended to cast a vote for him.” Or. Granting Sanctions, R.32, Page

Plaintiff Dummett was campaigning in Tennessee and did have registered voters in Tennessee that intended to vote for him. Plf.s’ Mtn. Stay, R.34, Page ID#510-519 at 515, FN1.

Most importantly, after identifying facts that could have been truthfully pled

precedent and dismissed the complaint without leave to amend. See Or. Dismissing

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Compl., R.31, Page ID#496-488 at 481; Brown v. Matauszak, 415 Fed.Appx. 608 (6th Cir. 2011).

The District Court also concluded that the instant case was distinguishable

from existing competitive-candidate precedent based on the fact that Plaintiff Dummett was a write-in candidate. Or. Granting Sanctions, R.32, Page ID#489-

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in support of standing in the instant case, the District Court ignored this Circuit’s

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ID#489-510 at FN21; citing Or. Dismissing Compl., R.31, Page ID#496-488. Yet,

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to plead “that he was campaigning in Tennessee, [or] that any registered voter in

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election. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 at ¶¶33,49.

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510 at 498. The Court stated that it was unaware of any precedent supporting

Having thus established that the instant case was a case of first impression,

circumstances, and found that attorney Irion’s advocacy amounted to “more than

No order to show cause was ever issued to attorney Irion from the District

for sanctions was denied. See Plf.s’ Opp. Mot. Sanct., R.29, Page ID#391-413 at 391; Or. Granting Sanctions, R.32, Page ID#489-510. Finally, Plaintiffs’ motion to reconsider was denied without discussion of at least one of the substantive errors raised, due to the District Court’s clear misconstruction of its own local rule. Or.

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B. Standard of Review

This Court has explained that “Because §1927 is penal in nature, we believe

that it should be strictly construed.” U.S. v. Ross, 535 F.2d 346 (6th Cir. 1976). The Second Circuit further explained, “We recognize this power carries with it the potential for abuse, and therefore the statute should be should be construed narrowly and with great caution, so as not to ‘stifle the enthusiasm or chill the
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Denying Mtn. to Recons., R.51, Page ID#682-690 at 687-689.

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Court. Attorney Irion’s written request for a hearing regarding Defendants’ motion

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negligence or incompetence.” Id. at 8.

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the District Court then ignored precedent prohibiting attorney-sanctions under such

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candidate. Id.

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Plaintiffs’ assertion that competitive-candidate standing applied to a write-in

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creativity that is the very lifeblood of the law.’” Mone v. C.I.R., 774 F.2d 570, 574

An award of fees under the statute requires a showing of “more than

Advantage, Ltd. V. Sater, 465 F.3d 642, 646 (6th Cir. 2006).

abuse of discretion. Hall v. Liberty Life Ins. Co. of Boston, 595 F.3d 270, 275 (6th

legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” Id.; citing Geier v. Sundquist, 372 F.3d 784, 789-90 (6th Cir. 2004).

In the instant case the District Court ignored applicable legal standards,

fact that are proven false by simply reading the complaint.

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misapplied the legal standards it asserted, and founded its decision on findings of

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Cir. 2010). Abuse of discretion occurs “when the district court applies the wrong

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A district court’s grant of sanctions under 28 U.S.C. § 1927 is reviewed for

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negligence or incompetence.” Id. citing Red Carpet Studios Div. of Source

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243, 254 (2d Cir.1985).

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(2nd Cir. 1985); quoting Eastway Construction Corp. v. City of New York, 762 F.2d

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C. Clearly Erroneous Finding of Fact2

injure his campaign.” Or. Granting Sanctions, R.32, Page ID#489-510 at FN21;

complaint alleged: “Therefore, said actions would harm Plaintiff Dummett’s ability

as filed in State Ct., R.1-2, Page ID#29-47 at ¶48; see also ¶33. The Court’s

the ballot would in any way injure his campaign” is simply a clear misstatement of the record. As such it represents a “clearly erroneous finding of fact” by the Court supporting a finding of abuse of discretion upon appeal. Hall v. Liberty Life Ins. Co. of Boston, 595 F.3d 270, 275 (6th Cir. 2010); Geier v. Sundquist, 372 F.3d 784,

reversed.

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While the instant appeal requests review only of the District Court’s imposition of sanctions, the Court’s errors in dismissing Plaintiffs’ complaint are relevant to the instant appeal because if the District Court erred in dismissing Plaintiffs’ complaint for lack of standing, then its finding that attorney Irion was “more than negligent” in his assertion of standing would necessarily be incorrect. In other words it is arguable that the Court should not have dismissed the Plaintiffs complaint at all. If the Court’s dismissal was arguably an error, then its sanctions order is founded upon an error.
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789-90 (6th Cir.2004). For this reason alone the District Court’s order should be

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statement that “Dummett had failed to plead…that President Obama’s presence on

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to win the election to the office of President of the United States.” 1st Amd. Compl.

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quoting Or. Dismissing Compl., R.31, Page ID#496-488 at 482. Yet, Plaintiffs’

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failed to plead…that President Obama’s presence on the ballot would in any way

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The District Court’s first error was its factual finding that “Dummett had

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The District Court’s Order also states that Plaintiffs’ allegations were not specific enough, or were merely legal conclusions. Or. Dismissing Compl., R.31,

allegations of injury may suffice to demonstrate standing.” White v. United States,

555, 560, (1992). While “naked assertions devoid of further factual assertions” will

Plaintiffs’ motion, are specific facts that the Drake Court found sufficient to

The fact pled in the instant case, that an ineligible candidate on the ballot will harm the competitive chances of the Plaintiff, includes no legal conclusions or assertions whatsoever. It is clearly not an assertion of law, but is an assertion of fact.

assertions.” Additional facts pled supported the assertion, including the fact that

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Plaintiff Dummett was a candidate for the office of President, and that Dummett was registered with the Federal Election Commission as a Presidential candidate. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 at ¶¶31,32. Even if the facts found in Plaintiffs’ complaint were not specific enough to

support standing in the instant case, such failure should not have been

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This fact was also not a “naked assertion devoid of further factual

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support standing. Id.; See also Drake v. Obama, 664 F.3d 774 (9th Cir. 2011).

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not support standing, the facts asserted in Plaintiffs’ complaint, and cited in

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601 F.3d 545, 552 (6th Cir. 2010); citing Lujan v. Defenders of Wildlife, 504 U.S.

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Page ID#496-488 at 483. However, on motion to dismiss “General factual

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mischaracterized by the District Court as a complete failure to plead facts that were actually plead. At most the Court should have stated that the facts plead were not sufficiently specific to support standing.

It is ironic that the Court found attorney Irion “more than negligent” for

misrepresented the facts actually alleged in the complaint.

D. Competitive-Candidate Standing is Well-Established The District Court’s order stated that attorney Irion “should have known that Plaintiffs lacked standing to pursue their claims.” Or. Granting Sanctions, R.32, Page ID#489-510 at 496. The Court concluded that attorney Irion’s actions were “more than negligence or incompetence.” Or. Granting Sanctions, R.32, Page ID#489-510 at 496; citing Hall v. Liberty Life Assur. Co. of Boston, 595 F.3d 270, 275 (6th Cir. 2010).

However, Attorney Irion’s assertion of standing was grounded upon wellestablished precedent: “This notion of ‘competitive standing’ has been recognized

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by several circuits.” Drake v. Obama, 664 F.3d 774, 782-3 (9th Cir. 2011); citing Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H. 2008); Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586-87 & n.4 (5th Cir.2006); and Schulz v. Williams, 44 F.3d 48, 53 (2nd Cir. 1994). Allegations in the Plaintiffs’ complaint were

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failing to state facts in a complaint when the Court imposing sanctions

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intentionally drafted to mirror the allegations found to support competitive-

allegations were “too speculative to show injury-in-fact.’” Or. Granting Sanctions,

and ACLU v. Nat’l Sec. Agency, 493 F.3d 644, 656–57 (6th Cir. 2007). However,

Nader had standing. See Id. To Plaintiff’s knowledge, no precedent directly

To the contrary, the Ninth Circuit clearly held the opposite result: “We reject the Postal Service’s argument that the potential loss of an election due to an unfair advantage for the opponent was an ‘injury that was too remote, speculative and unredressable to confer standing.’” Drake v. Obama, 664 F.3d 774, 783 (9th Cir. 2011); quoting Owen v. Mulligan, 640 F.2d 1130, 1132 (9th Cir. 1981).

standing was “too speculative” runs contrary to well-established precedent in at

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least one Federal Circuit. Compare Or. Granting Sanctions, R.32, Page ID#489510 with Owen v. Mulligan, 640 F.2d at 1132.

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As in the instant case, one of the Drake plaintiffs was a write-in candidate. See 664 F.3d at 782. While the Drake Court discussed the doctrine of competitivecandidate standing at length, that Court held that these plaintiffs’ claims were moot when the complaint had been filed. Id. at 784.
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In the instant case, the District Court’s ruling that the Plaintiffs’ allegation of

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supports the District Court’s assertion.

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ACLU did not involve a candidate-plaintiff, and the Nader Court concluded that

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R.32, Page ID#489-510, citing Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008)

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The District Court also noted in its order of dismissal that the Plaintiffs’

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The Drake Court also noted that the injury alleged was not the potential loss of an election, but rather was having a competing candidate that enjoys an

Schulz v. Williams, 44 F.3d 48, 53 (2nd Cir. 1994). Alternatively, the injury is the

F.2d 1028, 1030 (7th Cir. 1990). Such losses are far from speculative. Any

clear and immediate advantage over all other competitors, regardless of the

Finally, the District Court’s insistence that Plaintiff Dummett is not a competitive-candidate, insults the Tennessee Legislature and Tennessee Election Code. The Tennessee Legislature has full authority to determine how candidates for President will be vetted for election in the State of Tennessee. U.S. Const.

candidates, and Plaintiff Dummett fulfilled them.

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After this case was removed from Tennessee State Court, the District Court

refused to remand, despite the State of Tennessee’s interests in enforcing its State Election Code. Or. Denying Remand, R.18, Page ID#147-158. Then the District Court proceeded to determine that a candidate, as defined by Tennessee State law is not a good enough candidate to satisfy the Federal Court. Or. Granting

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Art.II §1. The Tennessee Legislature established the requirements for Presidential

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ultimate outcome of the election.

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candidate that is not held to the same laws and standards as other candidates has a

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loss of votes caused by increased competition. Id.; citing Fulani v. Hogsett, 917

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advantage by avoiding compliance with election laws. 664 F.3d at 783; quoting

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Sanctions, R.32, Page ID#489-510 at FN21. Then, the Federal Court proceeded to sanction attorney Irion for alleging that a candidate pursuant to Tennessee State

Dismissing Compl., R.31, Page ID#496-488 at 482.

from another Circuit, proceeding to find that attorney Irion was “more than

Circuit, was a clear abuse of discretion.

E. Standing for One Plaintiff Allows All Plaintiffs to Proceed The District Court’s order granting sanctions focused first upon the standing of Plaintiffs other than Plaintiff Dummett. It concluded “the Court finds that the allegations of standing made on behalf of Plaintiff Maroney are particularly frivolous and without merit.” R. 32 at 8. Yet the Court disregarded the wellestablished fact that if only one plaintiff properly alleges standing, all plaintiffs may proceed with the lawsuit. Massachusetts v. EPA, 549 U.S. 497, 518 (2007).

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This precedent was pointed out to the District Court. R.19, Opp. Mot.

Dismiss at 8. Yet the Court’s decision to sanction attorney Irion appears to be strongly rooted in the Court’s apparent ire raised by standing allegations related to

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incompetent” because he relied upon State Election law and precedent from a sister

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While the District Court certainly has authority to disagree with precedent

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election law is a candidate pursuant to Tennessee State election law. Or.

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plaintiffs other than Mr. Dummett.4 See Or. Granting Sanctions, R.32, Page ID#489-510 at 496-497.

alleged standing, then the District Court’s dismissal of plaintiffs entire lawsuit

Irion would be an abuse of discretion founded upon an abuse of discretion. F. Abuse of Discretion by Refusing to Allow Amendment

The District Court also abused its discretion by refusing to allow Plaintiffs to file an amended complaint. “If it is at all possible that the party against whom the dismissal is directed can correct the defect in the pleading or state a claim for relief, the court should dismiss with leave to amend.” Brown v. Matauszak, 415 Fed.Appx. 608 (6th Cir. 2011); citing Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE § 1483 (3d ed. 2010).

In the instant case the District Court’s own orders dismissing Plaintiffs’

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complaint and sanctioning attorney Irion established facts that the District Court Plaintiff Dummett is a member of Liberty Legal Foundation. 1st Amd. Compl. as filed in State Ct., R.1-2, Page ID#29-47 ¶ 30. Therefore, if Dummett has standing, then Liberty Legal Foundation also has direct standing. Massachusetts v. EPA, 549 U.S. 497, 518 (2007). However, even if Liberty Legal Foundation didn’t have direct standing, the lawsuit may proceed with all of its plaintiffs, as long as one plaintiff properly alleges standing. Id.
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would be an abuse of discretion, and the District Court’s sanctions against attorney

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Because of the Supreme Court’s precedent, if Plaintiff Dummett properly

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would have considered supportive of standing. Or. Dismissing Compl., R.31, Page ID#496-488 at 482; Or. Granting Sanctions, R.32, Page ID#489-510 at FN21. Yet rather than allowing Plaintiffs an opportunity to amend, the District Court dismissed the case. Then the Court compounded its abuse of discretion by

lacked standing to pursue their claims.” Or. Granting Sanctions, R.32, Page

What attorney Irion knew was that Plaintiff Dummett was campaigning in

Plaintiff Dummett in the State of Tennessee. Plf.s’ Mtn. Stay, R.34, Page ID#510519 at 515, FN1.

The District Court’s failure to allow Plaintiffs to amend their complaint represents an abuse of discretion in dismissing Plaintiffs’ complaint without leave

order dismissing Plaintiffs’ complaint for lack of standing was arguably an error,

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then the Court’s order sanctioning attorney Irion is an error founded upon an error. G. Abuse of Discretion by Clear Misconstruction of Its Own Local Rule

After the District Court’s initial order granting sanctions was entered, the

Plaintiffs filed a motion to reconsider. Plf.s’ Mot. Reconsider Sanct., R.33, Page

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to amend. Brown, 415 Fed.Appx. 608; Geier, 372 F.3d at 789-90. If the Court’s

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Tennessee and that registered voters in Tennessee intended to cast votes for

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ID#489-510 at 496.

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sanctioning attorney Irion, concluding that he “should have known that Plaintiffs

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ID#502-509. Plaintiffs’ motion to reconsider raised, among other issues, the District Courts mistake of fact, as set forth in the instant appeal. Id. The District Court’s denial of Plaintiffs motion regarding this issue was grounded upon the

Court’s misconstruction of its own Local Rule. Or. Denying Mtn. to Recons., R.51,

The Court’s order states: “Local Rule 7.3(b) enumerates the only grounds

failure by the Court to consider material facts or dispositive legal arguments that

added).

The Court’s order then concludes “Plaintiffs cite the same decisional law previously briefed for the Court at the pleadings stage. This is precisely the type of motion for revision, one based on arguments already considered and rejected,

The Local Rule actually prohibits presentation of facts and argument that

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were not already presented to the Court, unless the new material is based upon a

change of law or the presenting party could not have known about the material. In other words, the Rule prohibits presenting new material to the Court, except under limited circumstances. If a party is arguing that the Court “manifestly fail[ed]” to consider facts or law, then the material must have already been presented. See

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which Local Rule 7.3 prohibits.” Id. at 7.

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were presented to the Court before such interlocutory order.” Id. (emphasis

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for revision and requires the moving party to show specifically… or (3) a manifest

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Page ID#682-690 at 687-689.

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Local Rule 7.3(b). Yet the Court denied Plaintiffs’ motion by applying an opposite standard than that set forth in its own rule. Or. Denying Mtn. to Recons., R.51, Page ID#682-690 at 688.

Based upon this clearly erroneous reading of its own rule, the District Court

failed to accept as true Plaintiff Dummett’s allegations. Or. Denying Mtn. to

The Court then noted Plaintiffs’ argument that the Court should have

“The Court fails to see how this issue relates to the order on sanctions.” Id. In other words, the District Court failed to understand that if it was an abuse of discretion to dismiss the Plaintiffs complaint in the first place, then taking the next step and sanctioning Plaintiffs’ attorney was necessarily an abuse of discretion of a higher

The District Court’s misconstruction of its own rule constituted a separate

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abuse of discretion. Geier v. Sundquist, 372 F.3d 784, 789-90 (6th Cir. 2004). That error led the Court to ignore Plaintiffs’ attempts to point out the Court’s previous errors.

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order.

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allowed Plaintiffs’ to amend their complaint rather than dismissing, concluding

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Recons., R.51, Page ID#682-690 at 687-689.

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refused to substantively address the Plaintiffs’ assertion that the District Court

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H. District Court Denied Attorney Irion Adequate Due Process This Circuit recognizes that “Due process, however, is a flexible concept and the particular procedural safeguards required will vary depending upon all the circumstances.” Cook v. American S.S. Co., 134 F.3d 771 (6th Cir. 1998).

In the instant case the sanctions imposed upon attorney Irion were pursuant to a motion filed by the Defendants. Or. Granting Sanctions, R.32, Page ID#489510 at 496. Defendants motion asserted both violations of Rule 11 and §1927. R.25, Def.s’ Mot. Sanct. at 1. The District Court denied all Rule 11 allegations because the Defendants failed to meet Rule 11’s safe-harbor provisions. Or. Granting Sanctions, R.32, Page ID#489-510 at 500. Plaintiffs’ requested, in writing, a hearing prior to the Court ruling on Defendant’s motion. Plf.s’ Opp. Mot. Sanct., R.29, Page ID#391-413 at 391. Yet the Court issued no show cause order, nor did it hold any hearing on the matter prior to finding attorney Irion “more than negligen[t] or incompeten[t].” Or. Granting Sanctions, R.32, Page

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ID#489-510 at 501.

Because “particular procedural safeguards required will vary depending

upon all the circumstances,” the Plaintiffs assert that procedural safeguards were inadequate in the instant case. Attorney Irion filed a response to a motion for sanctions that failed to meet minimum procedural rules under Rule 11, and which cited §1927 only as an alternative authority. Several months later, and without any
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further notice, and without granting the requested hearing, the Court publically

errors, and refusal to allow attorney Irion to defend himself at a hearing, the

The District Court’s order clearly establishes that its ruling on standing in

is aware of, no legal authority standing for the proposition that a write-in candidate

to challenge a rival’s qualifications.” Or. Granting Sanctions, R.32, Page ID#489510 at 498. This is the definition of a case of first impression. See Black’s Law

While this Circuit does not have an absolute rule prohibiting sanctions when

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an attorney advocates a case of first impression, it is clear that sanctions under § 1927 are only appropriate when the claim is “utterly unsupportable,” “worthless on their face,” “patently frivolous,” or containing “not a cintilla of legal merit.” Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370 (6th Cir. 1987); Mone v. C.I.R., 774 F.2d 570 (2nd Cir.1985);Ozee v. Amer. Council on Gift Annuities,

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Dictionary 206 (Bryan A. Garner ed., 7th ed., West 1999).

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who was not a political party’s nominee for office could have competitive standing

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the instant case is a ruling of first impression: “Plaintiffs have cited, and the Court

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I. Advocating a Case of First Impression Is Sanctionable Only When “Utterly Unsupportable”

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procedural safeguards in this case did not meet minimal due process requirements.

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of fact, misconstruction of its own rules, refusal to substantively reconsider its

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found that attorney Irion is more than incompetent. Considering the Court’s errors

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Inc., 143 F.3d 937, 941 (5th Cir. 1998); United States v. U.T. Alexander, 981 F.2d

the enthusiasm or chill the creativity that is the very lifeblood of the law.” Mone,

This is why only one of the cases cited by the Defendants in the Court below

impression. In that one case the 5th Circuit sanctioned the attorney because “no

The instant case contains facts at the opposite end of the spectrum from those supportive of sanctions under such a standard. In the instant case the District Court sanctioned Plaintiffs’ attorney pursuant to § 1927 for his advocacy of a reasonable extension of well-established precedent. 5 The facts plead were

774 (9th Cir. 2011). The Drake Court found these facts sufficient to support

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competitive candidate standing. Id. at 782-3. In the instant case the District Court distinguished Drake by citing factors

that neither the Drake Court, nor any other court, had actually based a ruling upon This error is even more egregious because attorney Irion’s advocacy was performed in support of enforcement of the U.S. Constitution, an area of law that for policy reasons, has the highest tolerance for creative advocacy.
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intentionally drafted to mirror the allegations found in Drake v. Obama. 664 F.3d

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litigant would dream of bringing it with a straight face.” Ozee, 143 F.3d at 941.

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reflects a court actually sanctioning an attorney for advocating a case of first

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774 F.2d 570; U.S. v. Ross, 535 F.2d 346 (6th Cir. 1976).

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should be strictly construed, “narrowly and with great caution, so as not to stifle

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250, 253 (5th Cir. 1993). This precedent accurately reflects that 28 U.S.C. 1927

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in relation to the standing issue. Or. Granting Sanctions, R.32, Page ID#489-510 at 498. Making these factors even less supportive of sanctions, the Drake Court did discuss competitive-candidate standing in relation to a write-in candidate, and that

Court would have found standing had the case not been moot. 664 F.3d at 782-3.

favorably, but no Court had ever explicitly ruled upon. This hardly rises to the

containing “not a cintilla of legal merit.”

standing to challenge a competitor’s qualifications, and that there is precedent favorably discussing such an assertion, means that Plaintiff’s attorney would be granted qualified immunity if he was a government employee being sued for violating someone’s constitutional rights. The District Court’s grant of sanctions

constitutional cases worse off than government employees that actually violated

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citizen’s constitutionally protected rights. This cannot possibly be what this Circuit intended when it said that § 1927 should be narrowly construed. As the Second Circuit warned, such abuse of § 1927 will ‘stifle the enthusiasm or chill the creativity that is the very lifeblood of the law.’” Mone v. C.I.R., 774 F.2d 570, 574 (2nd Cir. 1985); quoting Eastway Construction Corp. v. City of New York, 762 F.2d

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leaves attorneys advocating reasonable extensions of well-established precedent in

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The fact that there is no precedent clearly negating a write-in candidate’s

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level of “utterly unsupportable,” “worthless on their face,” “patently frivolous,” or

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At worst, Plaintiffs’ attorney advocated a position that another Circuit discussed

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243, 254 (2d Cir.1985). In fact, if the District Court’s order is not reversed, soon

It is extremely ironic that attorney Irion was sanctioned for advocating a

in the Sixth Circuit reflects an attorney ever being sanctioned for advocating a

District court extended precedent in an area that is supposed to be narrowly

attempting to extend precedent in an area that is supposed to be a haven for vigorous advocacy. See U.S. v. Ross, 535 F.2d 346; Mone v. C.I.R., 774 F.2d 570. CONCLUSION

For all the reasons discussed above, the Plaintiff-Appellants request that this Court reverse the District Court’s grant of Defendant-Appellees’ motion for

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sanctions. Alternatively, the Plaintiff-Appellants request that this Court remand this case and order the District Court to hold an evidentiary hearing on Plaintiffs’ motion to reconsider, and issue an order addressing the substantive errors asserted in said motion. Dated: 8th of Adar, Year of our Lord 2013 (a.k.a. February 19, 2013)

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construed and applied with great caution, in order to sanction an attorney for

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reasonable extension of precedent regarding constitutional law. In essence the

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reasonable extension of precedent regarding Constitutional law, when no precedent

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Constitution. Ozee, 143 F.3d at 941.

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“no litigant would dream of bringing” any case asserting enforcement of the U.S.

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__s/Van R. Irion______ Van R. Irion Law Office of Van R. Irion, PLLC 9040 Executive Park Drive, Ste. 223 Knoxville, TN 37923 Attorney for Plaintiff/Appellants (865) 809-1505

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Certificate of Compliance Pursuant to FRAP 32(a)(7)(C) the undersigned certifies that this brief complies with the type limitations of these Rules.

1. Exclusive of the exempted portions in FRAP 32(a)(7)(B)(i) and (iii),

of the exempted portions he brief contains exactly 5,806.

2. The brief has been prepared in 14-point Times New Roman typeface using Microsoft Word for Windows.

3. If the Court so requests, the undersigned will provide a copy of the word or line printout.

4. The undersigned understands a material misrepresentation in completing this certificate of the FRAP 32(a)(7)(B)(C) and Sixth Circuit Rule 32(a), may result in the Court’s striking the brief and

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imposing sanctions against the person signing the brief.

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_s/Van R. Irion____________________ Van R. Irion

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the brief contains no more than 14,000 words in its entirety. Exclusive

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CERTIFICATE OF SERVICE It is hereby certified that on the 8th of Adar, Year of our Lord 2013 (a.k.a. February 19, 2013), a copy of the foregoing Appellants’ Brief was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. _s/Van R. Irion_________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiffs (423) 208-9953

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DESIGNATION OF RELEVANT COURT DOCUMENTS Record Entry R. 1-2 R.12 R.13 R.18 R.24 R.24-1 R.24-2 R.29 R.31 R.32 R.33 R.34 R.51 R.53 R.54 Description of Item 1 Amd. Complaint filed in State Court
st

Page ID# 29-47 120-121

Mot. to Remand Memo in Support of Mot. to Remand Or. Denying Remand Mot. for Leave to File Supp. Resp.

Plf.s’ Suppl. Resp. Re Mtn. to Dismiss

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Plaintiff Dummett’s Write-in Cand. Cert. Plf.s’ Opp. Mot. Sanct.

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Or. Dismissing Compl. Or. Granting Sanctions

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Plf.s’ Mot. Reconsider Sanct. Plf.s’ Mot. Stay

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Or. Denying Mot. to Reconsider Sanctions Or. Granting Fees Judgment Notice of Appeal

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R.55

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304 710 711

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122-127 147-158 293-294 295-303 391-413 469-488 489-501 502-509 510-519 682-690 693-709

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