Plaintiff’s Response to Defendant’s Motion to Dismiss

IN THE XXX DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF XXX

XXX DIVISION

 

XXX    §

Plaintiff,     §

  1.     § CIVIL ACTION  XXX

XXXX,     §

Individually and in his Official Capacity as    §

Judge, Probate Court #2 of XXX County,    §

Texas     § JURY DEMAND

Defendant.     §

 

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS PURSUANT TO RULE 12(B)(6), FED. R. CIV. P.

This Response and Brief is filed by Plaintiff in Response to Defendant’s Motion to Dismiss under Federal Rule of Procedure 12(b)(6). For the reasons outlined below, Defendant’s Motion should be denied.

  • STANDARD OF REVIEW
    1. Defendant presents arguments under Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim upon which relief can be granted.)
  • Dismissal under rule 12(b)(6) is proper only when the complaint lacks a cognizable legal theory or does not allege facts that, when taken as a whole, raise the claim for relief above mere speculation. XXX. As with standing, the court will assume all factual allegations are true and draw all reasonable inferences in favor of the plaintiff. Person 1. When, as here, a 12(b)(6) motion is used to test the sufficiency of the complaint in a civil rights case, the court will be “especially solicitous of the harms alleged.” Id.


  • STATEMENT OF THE CASE
  1. This is a suit for estate trafficking against Judge Michael Newman in his capacity as probate judge. Plaintiff alleges that Defendant actively participated and abetted in the estate trafficking of the Estate of Hattie B. Owens, by repeatedly channeling money out of the estate into the coffers of the Court, the State of Texas and the Court Appointed Attorneys.
  2. Defendant also denied Plaintiff due process and subjected her to uncivil courtroom behavior by an appointed attorney, and not allowing evidence to be entered that would ensure the appropriate administration of justice, and abuse of power by declaring Plaintiff to be “not suitable” to serve as the 1st in line Executor of the last will and testament because of “family rancor”, and instead indicated that a third party administrator would be assigned which further depletes the estate.
  3. This was done in spite of case law and a Texas Supreme Court ruling that family discord is insufficient to not comply with the Testator’s wish.

  • ARGUMENTS

Plaintiff States Valid Claims under Fed. R. Civ. Proc. 12(b)(6)

  1. Defendant’s rulings from the guardianship matter violated protected rights of Plaintiff’s mother under the Americans with Disabilities Act and subsequently were in violation of Texas Law concerning the probate of Plaintiff’s mother’s estate.
  2. Defendant denied Plaintiff due process by refusing to allow testimony on the specific lack of performance of job responsibility that was attached to the contest of the fee schedule. 
  3. During the trial proceedings, Defendant failed to ensure civility in the courtroom in a manner that wasn’t discriminatory by allowing counsels and disgruntled family members to spew defamatory remarks when court sessions were going on.
  4. Defendant removed Plaintiff as executor of the will because of family discord, in total disregard of a Supreme Court ruling that family discord is insufficient to change the wishes of a testator.

Judicial Immunity Does Not Protect Judges from Civil Action When Their Actions Amount to Gross Negligence

  1. Although Person 2 employs judicial immunity in an attempt to absolve himself of the estate trafficking and racketeering that occurred under his purview, gross negligence is at play.
  2. Section C (4) of the Texas Code of Judicial Conduct states that: “A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.”
  3. The provision stated above establishes duty of care on Defendant to ensure that he only makes necessary appointments and that he only approves compensation of appointees according to the fair value of services rendered.
  4. Defendant breached duty of care to only make necessary appointments by unnecessarily appointing Dana Drexler as Temporary Guardian for the late Perso 2 had clearly stated in her will that Plaintiff was to be 1st Executor. The appointment of Dana Drexler as Temporary Guardian was unnecessary as Plaintiff’s mother had already wished that Plaintiff be the 1st Executor of her will. It was within her right to declare Plaintiff as 1st Executor of her will. Dana Drexler did not fulfil her duties as Temporary Guardian. Her actions were not in the interests of Plaintiff’s mother and eventually led to the detriment of her health.
  5. Defendant breached duty of care to approve compensation of appointees according to the fair value of services rendered by awarding $20,000.00 to Insert Name of Guardian Ad Litem, Guardian Ad Litem, who did not properly perform his duties according to his role.
  6. Defendant breached duty of care to approve compensation of appointees according to the fair value of services rendered by awarding $53,000.00 to Dana Drexler, Temporary Guardian, who did not perform her duties according to her role.
  7. Defendant breached duty of care to approve compensation of appointees according to the fair value of services rendered by awarding $15,000.00 to Insert Name of Attorney Ad Litem, Attorney Ad Litem, who did not perform his duties according to his role.
  8. Defendant’s unnecessary appointments in total disregard of the Plaintiff’s mother’s wishes made within her rights and compensation of appointees despite not performing their duties according to their roles led to the depletion of the estate of Hattie Owens by $88,000.00.

 

REASONS WHEREFORE, Defendants Motion to Dismiss Plaintiff’s Amended Complaint should be dismissed. This case should proceed. Respectfully submitted on Insert Date.

 

Person 3

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:

(Name of Defendant’s Attorney), Attorney at Law

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