Former Players v. Football Program *** Thread

[AuroraHawk]

Might as well have one thread here for updates - procedural or otherwise.

On November 23rd, Plaintiffs' counsel filed an Acceptance of Service signed by . . . Jeffrey Thompson, Solicitor General from the Iowa Attorney General's Office. Doesn't necessarily mean that the AG's office will enter an Appearance and serve as lead counsel. Indeed, no attorney has yet to enter a formal Appearance for any of the Defendants yet. The Acceptance of Service is signed November 23rd which triggers two key dates: December 13th to answer/respond to the Petition; December 23rd to file removal papers to move the case into federal court.

Certainly suggests that, to the extent that any pre-filing communication (phone, snail mail or email) existed, it would have been between Plaintiffs' counsel and the AG's office . . . not a private law firm retained by the University to handle the litigation.

Also worth noting . . . Thompson signed it on behalf of all of the defendants. Unified front from the outset.

Case was assigned to Judge Coleman McAllister. Appointed to the bench in April 2019 after serving as a prosecutor for the previous 20 years, including 8 years as Sioux County prosecutor and 5 years in the Iowa AG's Office.

I'm still predicting removal to federal court and a substantive Rule 12(b)(6) Motion to Dismiss filed after it has been removed from state court.

 

[anon_8rcdnbko1jbe0]

Might as well have one thread here for updates - procedural or otherwise.

On November 23rd, Plaintiffs' counsel filed an Acceptance of Service signed by . . . Jeffrey Thompson, Solicitor General from the Iowa Attorney General's Office. Doesn't necessarily mean that the AG's office will enter an Appearance and serve as lead counsel. Indeed, no attorney has yet to enter a formal Appearance for any of the Defendants yet. The Acceptance of Service is signed November 23rd which triggers two key dates: December 13th to answer/respond to the Petition; December 23rd to file removal papers to move the case into federal court.

Certainly suggests that, to the extent that any pre-filing communication (phone, snail mail or email) existed, it would have been between Plaintiffs' counsel and the AG's office . . . not a private law firm retained by the University to handle the litigation.

Also worth noting . . . Thompson signed it on behalf of all of the defendants. Unified front from the outset.

Case was assigned to Judge Coleman McAllister. Appointed to the bench in April 2019 after serving as a prosecutor for the previous 20 years, including 8 years as Sioux County prosecutor and 5 years in the Iowa AG's Office.

I'm still predicting removal to federal court and a substantive Rule 12(b)(6) Motion to Dismiss filed after it has been removed from state court.

Good stuff Aurora. Appreciate it!

 

[nu2u]

I'm still predicting removal to federal court and a substantive Rule 12(b)(6) Motion to Dismiss filed after it has been removed from state court.

Which motion will be denied.

 

[obfuscating]

1. Don't break the law.
2. Comply if you find #1 too hard.
3. Don't fight the cops.
4. Fight it in court.

There - that recipe is very easy to follow and implement...

 

[AuroraHawk]

Which motion will be denied.

All counts asserted by all plaintiffs will survive?

 

[NorthDSMHawk]

1. Don't break the law.
2. Comply if you find #1 too hard.
3. Don't fight the cops.
4. Fight it in court.

There - that recipe is very easy to follow and implement...

Thank you for this extremely relevant take.

 

[UNIowaHawk]

Can I get the dumbed down version? Who is this guy? What does it mean? Ramifications? Will it get dismissed? Is Frost or Fleck the bigger d-bag?

 

[nu2u]

All counts asserted by all plaintiffs will survive?

As an outsider, I have no way of rendering judgment on the strength of the individual counts. My belief that their case will survive a motion to dismiss is based on the fact that such relief is rarely granted. In other words, I do believe it is highly likely that the Plaintiffs, at a minimum, will be able to state a legal claim.

 

[EvilMonkeyInTheCloset]

Might as well have one thread here for updates - procedural or otherwise.

On November 23rd, Plaintiffs' counsel filed an Acceptance of Service signed by . . . Jeffrey Thompson, Solicitor General from the Iowa Attorney General's Office. Doesn't necessarily mean that the AG's office will enter an Appearance and serve as lead counsel. Indeed, no attorney has yet to enter a formal Appearance for any of the Defendants yet. The Acceptance of Service is signed November 23rd which triggers two key dates: December 13th to answer/respond to the Petition; December 23rd to file removal papers to move the case into federal court.

Certainly suggests that, to the extent that any pre-filing communication (phone, snail mail or email) existed, it would have been between Plaintiffs' counsel and the AG's office . . . not a private law firm retained by the University to handle the litigation.

Also worth noting . . . Thompson signed it on behalf of all of the defendants. Unified front from the outset.

Case was assigned to Judge Coleman McAllister. Appointed to the bench in April 2019 after serving as a prosecutor for the previous 20 years, including 8 years as Sioux County prosecutor and 5 years in the Iowa AG's Office.

I'm still predicting removal to federal court and a substantive Rule 12(b)(6) Motion to Dismiss filed after it has been removed from state court.

So..........Iowa > free handouts???

 

[AuroraHawk]

As an outsider, I have no way of rendering judgment on the strength of the individual counts. My belief that their case will survive a motion to dismiss is based on the fact that such relief is rarely granted. In other words, I do believe it is highly likely that the Plaintiffs, at a minimum, will be able to state a legal claim.

I don't know what being an "outsider" has to do with an analysis of whether a Petition/Complaint states a cause of action. All well-pled allegations are presumed to be true for the purpose of such a motion and, with that being the case, whether any or all of the counts survive. You don't have to have any inside knowledge or possess any discovery materials to assess, for example, if any of the claims may be time barred.

I, for one, am skeptical that the players who have been away from the program for more than two years can seek what essentially amounts to personal injury damages by pleading a breach of contract theory in an effort to avoid a two year statute of limitations and trying to use the ten year statute of limitations for breach of written contract claims.

 

[jdv77]

I am not sure whether a notice of removal will be filed. I don't know Coleman McAlister well as a judge, but I had some interaction with him when he was the Sioux County attorney. I think that he is very intelligent and fairly conservative. I think that he is a decent draw, as far as the district court judges that could have been assigned to the case.

I don't know how to assess the federal district court judges in the Southern District of Iowa.

In either federal or state district court, I believe that a motion to dismiss will be filed.

It is most likely that the motion to dismiss will be granted in part and denied in part. The statute of limitations is a defense that can sometimes be determined on the face of a complaint, particularly if the complaint states specific dates of alleged incidents. I do not practice in this area of law, but my understanding is that the anti-discrimination laws have fairly short statutes of limitations. So I think that it likely that some of the complaints made by the former players will be dismissed, because the statute of limitations has run on those complaints.

I think that it is unlikely that the case would be entirely dismissed on a motion to dismiss. If I am remembering it correctly, at least one of the former players (Javon Foy?) was within the time limit for filing the complaint with the civil rights commission and could obtain a right to sue letter.

 

[Pat McGroyne]

 

[ICWestfan]

I am not sure whether a notice of removal will be filed. I don't know Coleman McAlister well as a judge, but I had some interaction with him when he was the Sioux County attorney. I think that he is very intelligent and fairly conservative. I think that he is a decent draw, as far as the district court judges that could have been assigned to the case.

I don't know how to assess the federal district court judges in the Southern District of Iowa.

In either federal or state district court, I believe that a motion to dismiss will be filed.

It is most likely that the motion to dismiss will be granted in part and denied in part. The statute of limitations is a defense that can sometimes be determined on the face of a complaint, particularly if the complaint states specific dates of alleged incidents. I do not practice in this area of law, but my understanding is that the anti-discrimination laws have fairly short statutes of limitations. So I think that it likely that some of the complaints made by the former players will be dismissed, because the statute of limitations has run on those complaints.

I think that it is unlikely that the case would be entirely dismissed on a motion to dismiss. If I am remembering it correctly, at least one of the former players (Javon Foy?) was within the time limit for filing the complaint with the civil rights commission and could obtain a right to sue letter.

Wait...wouldn't this go to the State District Court, then Appeals Court, the Federal Court? I guess I missed that in the OP.

 

[jdv77]

It was filed in state district court. Removal to federal court is a procedure to move it from state district court to federal district court. If the defendants don't seek to remove it to federal court, then it will stay in state district court until it has been decided.

 

[NorthDSMHawk]

Lotta good info here but the biggest question out there -

Do any of you guys do estate planning in the DSM Metro pro bono?

 

[AuroraHawk]

I am not sure whether a notice of removal will be filed. I don't know Coleman McAlister well as a judge, but I had some interaction with him when he was the Sioux County attorney. I think that he is very intelligent and fairly conservative. I think that he is a decent draw, as far as the district court judges that could have been assigned to the case.

I don't know how to assess the federal district court judges in the Southern District of Iowa.

If I was part of the decision-making team, I'd include whether Judge McAllister has any experience handling this type of litigation and the likely quality of his law clerks into the calculus. As there will undoubtedly be a significant amount of research needed to address what I anticipate will be raised in a MTD, having really solid law clerks will be a "must" for the defendants.

Given his background as a prosecutor and limited time on the bench, I'd be inclined to think long and hard before choosing not to remove a case to federal court where the allegations raise significant federal questions. I wouldn't be surprised if this would be the first Section 1983 case over which he presided and, if I'm the defendants, I'd be awfully reluctant to be involved in the judge's "test" case.

Anyone who has gone through law school knows, competition to become a federal law clerk is stiff. Generally speaking, federal law clerk positions attract some of the top law students. State law clerk positions are not as competitive. And, while there are certainly very good state court law clerks, I cannot think of a single person I know who turned down a federal court law clerk job to work as a state court law clerk.

I've tried a couple of cases in front of Judge Jarvey and obtained favorable 12(b)(6) rulings from Judge Ebinger. Not as much experience with Judge Rose but a couple of my partners have successfully obtained dismissals (although one came after an 8th Circuit reversal - there was an issue that gave rise to the right to an automatic appeal) in front of her.

Generally speaking, with this particular type of case, I'd strongly lean towards removal to federal court, with federal judges and federal law clerks . . . and that doesn't even factor the issue of the difference of admissibility of expert opinions in state court versus federal court. With unique theories, there may be some . . . ummm . . . "unique" expert testimony proposed and, without question, I'd want the FRE governing admissibility of expert testimony rather than the state court rules.

 

[AuroraHawk]

Well folks . . . we have our answer on the procedural question.

Yesterday, defendants filed their Notice of Removal documents with the state court. It immediately prevents the state court from taking any action and the state court case is now closed.

The case is now pending in the United States District Court for the Southern District of Iowa. Judge Barbara Rose (she of the infamous "Hulk" memo) drew the assignment. Judge Helen Adams is the assigned Magistrate Judge. The case number is 4:20-cv-366.

Two attorneys from the Iowa AG's Office filed Appearances for the defendants. Jeffrey Thompson (Solicitor General) and Jeffrey Peterzalek (Assistant Attorney General).

Al Parrish and Brandon Brown are the only counsel of record at this time for the Plaintiffs. Solomon- Simmons is not licensed to practice in Iowa but I'd be shocked if he doesn't petition for admission pro hac vice for this case. So long as he is admitted to practice in at least one US District Court and is in good standing, his request will be granted so long as he affiliates with Parrish and Brown.

So . . timing.

Under the federal rules, the time to Answer/Respond after removal is either (a) the original answer date or (b) if the original answer date is less than 10 days from the removal date, the defendants get 10 days to file the Answer/Response. Because it was removed on 12/1 and the original deadline for answering/responding was 12/13, that remains the deadline.

Not uncommon for defendant(s) to seek an extension of time - particularly if they will be filing a Rule 12(b)(6) Motion to Dismiss.

I've only had tangential interaction with the Iowa AG's office on behalf of clients who have received notices of investigation. I've never worked with the lawyers who've appeared for the defendants. That written, I would have liked for outside legal counsel (specialists in Section 1983 litigation) to be retained to defend this case. Yes, it would be expensive but the cost of potential mismanagement of the defense would be far more expensive in terms of not only the litigation but the overall reputation of the football program.

 

[AuroraHawk]

From other thread . . . the parties and the counts of the lawsuit.

Plaintiffs:
Akrum Wadley
Jonathan Parker
Marcel Joly
Aaron Mends
Maurice Fleming
Reggie Spearman
Kevonte Martin-Manley
Darian Cooper
Laron Taylor
Brandon Simons
Javon Foy
Andre Harris
Terrance Harris

Count I - Against U of Iowa and Regents - Title VI claim (federal statute) - Racially Hostile Educational Environment - damages sought are consistent with personal injury claims (pain and suffering, mental anguish, etc). Seems to be asserted on behalf of only Mends, Simon and Foy.

Count II - Against U of Iowa and Board of Regents - Title VI claim (federal statute) -Retaliation - same type of damages requested. Seems to only be asserted on behalf of Mends.

Count III - Against U of Iowa and Board of Regents - Title VI claim - Systemic Pattern and Practice of Discrimination - damages are consistent with personal injury claims. Seems to be only asserted on behalf of Mends, Simon and Foy.

Count IV - Against Ferentz, Ferentz, Doyle and Barta - Section 1983 claim - Deprivation of Rights - Only seems to be making claims for Wadley, Parker, Joly, Cooper, Mends, Simon and Foy. Same type of damages claimed as in a personal injury claim.

Count V - Against Ferentz, Ferentz, Doyle and Barta - Section 1983 claim - Conspiracy to Deprive Players of Rights - On behalf of all named plaintiffs. Same type of damage claims.

Count VI - Against Ferentz, Ferentz, Doyle and Barta - Section 1983 claim - Conspiracy to Deprive Equal Protection - On behalf of Mends, Simon and Foy. Same type of damage claims.

Count VII - Against Kirk Ferentz and Barta - Section 1983 claim - Failure to Train and Supervise - on behalf of Mends, Simon and Foy. Same type of damages claimed.

Count VIII - Against All Defendants - Breach of Contract - On Behalf of All Plaintiffs - Seeking all damages arising out of the breach of contract (claiming that the contract was breached by Defendants' actions which failed to eliminate systemic racial prejudices)

 

[katman15]

The more I hear or read about this the more pissed I get at all these players.
Most of us would give our right nut to have had the opportunity to play division one football— heck your treated like royalty for the most part with that come shit—- all of us have shit we have to deal with in our jobs and then when we try to make the next jump- there is more shit and politics you have to deal with....
To me all these guys just have an axe to grind and are playing the fricking race card. Gentlemen you are going to have a long and bumpy ride and your life travels till you knock that chip off your shoulders.

 

[flyfishstout_CO]

Aurora and others, thanks again for the great commentary. Given the Iowa AG has responded does this mean that no outside counsel will be retained by the defendants? Also, is it surprising to see that KF or other individuals haven't obtained their own counsel separate from UofI to make sure their interests are represented?

 

[AuroraHawk]

Aurora and others, thanks again for the great commentary. Given the Iowa AG has responded does this mean that no outside counsel will be retained by the defendants?

Certainly not definitive but an extremely strong indication that the AG's offense will defend the case. Outside counsel can be retained and file additional appearance or substitute appearances but I would've expected a decision on outside counsel to have been made by this time. I would've expected that discussion to have taken place no later than when the letter was received by Solomon-Simmons. Hell . . . it would have been proactive to have initiated discussions when the issue first came to the forefront. There's been plenty of time . . . thus, I don't expect outside counsel to get involved. (Hopefully I'm wrong)

Also, is it surprising to see that KF or other individuals haven't obtained their own counsel separate from UofI to make sure their interests are represented?

Not particularly. Very common for similarly situated individuals to have the same defense team leading the defense. KF and others could retain their own legal counsel to monitor proceedings and to contribute to strategic discussions. I very much doubt that any of the individual defendants is looking at personal liability (i.e. verdict/settlement monies coming out of their personal pockets). That written, I'd anticipate that KF and BF will likely be consulting with private counsel about how things are moving. Unless they are going to be a part of the trial or some other hearing, private counsel would not file an Appearance with the court.

 

[hawkfeever]

So these guys won't ever be asked to be honorary captains for a ball game????????

Plaintiffs:
Akrum Wadley
Jonathan Parker
Marcel Joly
Aaron Mends
Maurice Fleming
Reggie Spearman
Kevonte Martin-Manley
Darian Cooper
Laron Taylor
Brandon Simons
Javon Foy
Andre Harris
Terrance Harris

 

[flyfishstout_CO]

Thanks, Aurora. Certainly seems that getting outside counsel involved would position the defendants well based on your comments previously. Hopefully this means they believe they have a strong enough case as is that bringing extra "firepower" isn't needed...

 

[Hawk fan in Minn]

From other thread . . . the parties and the counts of the lawsuit.

Plaintiffs:
Akrum Wadley
Jonathan Parker
Marcel Joly
Aaron Mends
Maurice Fleming
Reggie Spearman
Kevonte Martin-Manley
Darian Cooper
Laron Taylor
Brandon Simons
Javon Foy
Andre Harris
Terrance Harris

Count I - Against U of Iowa and Regents - Title VI claim (federal statute) - Racially Hostile Educational Environment - damages sought are consistent with personal injury claims (pain and suffering, mental anguish, etc). Seems to be asserted on behalf of only Mends, Simon and Foy.

Count II - Against U of Iowa and Board of Regents - Title VI claim (federal statute) -Retaliation - same type of damages requested. Seems to only be asserted on behalf of Mends.

Count III - Against U of Iowa and Board of Regents - Title VI claim - Systemic Pattern and Practice of Discrimination - damages are consistent with personal injury claims. Seems to be only asserted on behalf of Mends, Simon and Foy.

Count IV - Against Ferentz, Ferentz, Doyle and Barta - Section 1983 claim - Deprivation of Rights - Only seems to be making claims for Wadley, Parker, Joly, Cooper, Mends, Simon and Foy. Same type of damages claimed as in a personal injury claim.

Count V - Against Ferentz, Ferentz, Doyle and Barta - Section 1983 claim - Conspiracy to Deprive Players of Rights - On behalf of all named plaintiffs. Same type of damage claims.

Count VI - Against Ferentz, Ferentz, Doyle and Barta - Section 1983 claim - Conspiracy to Deprive Equal Protection - On behalf of Mends, Simon and Foy. Same type of damage claims.

Count VII - Against Kirk Ferentz and Barta - Section 1983 claim - Failure to Train and Supervise - on behalf of Mends, Simon and Foy. Same type of damages claimed.

Count VIII - Against All Defendants - Breach of Contract - On Behalf of All Plaintiffs - Seeking all damages arising out of the breach of contract (claiming that the contract was breached by Defendants' actions which failed to eliminate systemic racial prejudices)

Thanks Aurora. Really appreciate you taking the time to spell this stuff out.

 

[HawkIDrummer]

**** em

 

[pahawk68]

The more I hear or read about this the more pissed I get at all these players.
Most of us would give our right nut to have had the opportunity to play division one football— heck your treated like royalty for the most part with that come shit—- all of us have shit we have to deal with in our jobs and then when we try to make the next jump- there is more shit and politics you have to deal with....
To me all these guys just have an axe to grind and are playing the fricking race card. Gentlemen you are going to have a long and bumpy ride and your life travels till you knock that chip off your shoulders.

Correct! Spot on! Hell, if they think they had it rough at Iowa, life is tough!! They will find that out the next 30-50 years! Enough of the shitshow! I’m too old, but it will be interesting to see how their life shakes out the next 40-50 years. They’ve never had it so good! As a former teacher ( retired), football, wrestling abd track coach, time for some lawyers to run them through the grinder. Kinda like two a days.
Since I live in PA, maybe I could send out a van full of Philly lawyers. Shit, they couldn’t handle a day of that!! Just BS! That game would be over after day 1!!

 

[Hawkfan_08]

I know very little about law. If Iowa wins the lawsuit, can they file a lawsuit for defamation of the Iowa brand against the individuals? It seems petty but this looks terrible for Iowa. This will be played against Iowa for recruting and may hurt money coming into the program.

Now, if Iowa loses, the house will be cleaned and we start all over. Ferentz's legacy will be tainted.

This whole thing sucks.

 

[iowahaha1]

"
Count V - Against Ferentz, Ferentz, Doyle and Barta - Section 1983 claim - Conspiracy to Deprive Players of Rights - On behalf of all named plaintiffs. Same type of damage claims."

I have a quick question. Are any of these people being sued individually where they would need their own legal council, or is it a class action type suit where they sue the University and these people are just who are involved. Could these players go after individual people?? I am a little confused on how that process works.

 

[AuroraHawk]

If Iowa wins the lawsuit, can they file a lawsuit for defamation of the Iowa brand against the individuals?

No.

 

[UNIowaHawk]

I am no lawyer so I appreciate AuroraHawks take.... even though I am only able comprehend ~80%.... 50% of which I am probably comprehending incorrectly.

1. As mentioned above, don't some of these exceed the statute of limitations?
2. Chances of dismissal?
3. If not dismissed, do we get to hear both sides of the story now?

 

[HawkIDrummer]

Iowa WR Ihmir Smith-Marsette says after his OWI arrest, he thought to himself that his football career might be over. Says Kirk Ferentz, Brian Ferentz & Kelton Copeland were "there for me" and helped lift him up. It's a "mistake that won't happen again, trust me."

Bunch of racists...

 

[Robster Raws]

We should all expect a bill in the mail from Aurora after reading this thread

 

[AuroraHawk]

1. As mentioned above, don't some of these exceed the statute of limitations?

I suspect that Judge Rose will have an opportunity to rule on that very question.

2. Chances of dismissal?

Full dismissal? I’d put that at 0%.
Partial dismissal - as in some claims raised for certain plaintiffs? I’d put that at better than 50%.

3. If not dismissed, do we get to hear both sides of the story now?

Don’t get your hopes up. And, even if “both sides of the story” somehow come to light before a trial, we are a long ways from that happening.

 

[joelbc1]

Iowa WR Ihmir Smith-Marsette says after his OWI arrest, he thought to himself that his football career might be over. Says Kirk Ferentz, Brian Ferentz & Kelton Copeland were "there for me" and helped lift him up. It's a "mistake that won't happen again, trust me."

Bunch of racists...

Maybe....just maybe Hawk, this could be interpreted as the tail wagging the dog and be played as such in Court. Remember, there are, like it or not, two sides to this story and the court has to settle the mess.
We probably will never be privy to all the facts involved.

 

[HawkIDrummer]

Maybe....just maybe Hawk, this could be interpreted as the tail wagging the dog and be played as such in Court. Remember, there are, like it or not, two sides to this story and the court has to settle the mess.
We probably will never be privy to all the facts involved.

You're right, we probably won't ever know all the deets. But I will add that the concept of "both sides of the story" is inherently flawed. (unless you're talking about a simple interaction in which there are only two parties and no observers). There are MANY angles to this story...as with most. Life is rarely simplistically binary.

 

[joelbc1]

You're right, we probably won't ever know all the deets. But I will add that the concept of "both sides of the story" is inherently flawed. (unless you're talking about a simple interaction in which there are only two parties and no observers). There are MANY angles to this story...as with most. Life is rarely simplistically binary.

Agreed. Which makes the Courts job quite complicated. But both sides have their versions of the facts...how’s that?

 

[HawkIDrummer]

Agreed. Which makes the Courts job quite complicated. But both sides have their versions of the facts...how’s that?

That's why lawyers make the big bucks.

 

[hawkfeever]

We should all expect a bill in the mail from Aurora after reading this thread

They count in like 15 minute increments. Deal with attorney bills for work and my god they track how long it takes them to crap.

Our external counsel has like a photo graphic memory. Makes me feel way inferior when talking with him.

 

[hawkfeever]

That's why lawyers make the big bucks.

Many do not. Mostly the ones willing to give up a personal life and climb the long ladder early on.

 

[Hkfan23]

I haven’t commented since been in depositions. Generally agree with everything Aurora said with a few tweaks. I graduated law school with Judge Rose and BTW practiced with the state court Judge’s wife for over 10 years. And got to know him personally. My 2 cents being in Federal Court is much better. There is so much to respond to so will let Aurora take the laboring oar. My biggest issue is why there is not a private speciality firm defending. Now, maybe if MTD’s aren’t granted other counsel appears. I have no clue. But even in these times, now is not the case to cut corners. We tried that before on a case and got crushed. Like I said, have a few comments on some of the posts but been in Dubuque and Davenport for almost 2 weeks so haven’t followed closely enough.