Wilson Pickett 1966 – Mustang Sally.
“No wonder you’re late. Why, this watch is exactly two days slow.”
SLABBED reported the Magistrate’s Order in Shall we dance?…, a post that focused on what the Branch plaintiffs argue was the Magistrate’s “flawed construction” of a “Loss Shifting” and “Inflated Revenue” dichotomy. In Branch’s Motion for Appeal of Magistrate’s Order, however, the Plaintiffs lead with the suggestion the Magistrate’s watch, like that of the March Hare, was running “exactly two days slow” as “There Was No Undue Delay” and, therefore, “There Is No Undue Prejudice”:
The sole basis for the Magistrate Judge’s denial of leave to add the allegations concerning adjusting fees is that Defendants would be “unduly prejudiced” by Branch’s “undue delay.” Order at 18-19. The record does not support such a finding, and the Magistrate Judge’s ruling is clear error for at least three reasons. First, there was no undue delay… Accordingly, “it cannot be said that plaintiff’s motion as a product of bad faith, dilatory motive or undue delay when plaintiff satisfied the deadline set forth in the Court’s new Scheduling Order.” Mendoza v. City of New Orleans, 2007…
Second, the Magistrate Judge’s conclusion that there would be undue prejudice is clear error because Branch filed its Motion for Leave at the very beginning of discovery… Branch is aware of no case finding undue prejudice under such circumstances…Third, the Order should be reversed because it narrowly construes the First Amended Complaint (“FAC”) in a manner that disposes of Branch’s claims based on properties for which the homeowners carrier and the WYO carrier are not identical.
As this Court recognized, Branch “pleaded the existence of a broad scheme to defraud the government” following Hurricane Katrina. Departing from this ruling, the Magistrate Judge concluded that there are two “entirely different schemes,” the “loss shifting” scheme and the “inflated revenue” scheme, and held that Branch’s allegations encompass only the “loss shifting” scheme. (citations omitted, emphasis added)
In a related post, “It’s the same old song But with a different meaning”… , SLABBED pointed out the Defendants’ strategy is to word their briefs in a way that attempts to put the Magistrate “in a box” when she issues Orders in the case. The Appeal demonstrates it was this strategic boxing that resulted in the Magistrate seeing the “broad scheme” as “two ‘entirely different'” schemes: Continue reading “Branch files Appeal of Magistrate’s Order”