Ortrie Dale Smith
How Judge Smith decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
On ineffective-assistance claims he holds that a 'strategy' defense must be an objectively valid strategy; an unreasonable choice is not insulated merely by calling it strategic. To defend counsel's conduct, show the strategy was objectively reasonable, not just deliberate.
“an attorney can have a sincerely-held, well-planned strategy that is so far beyond the objective standard of reasonableness – or, in other words, is so invalid – that the performance prong is violated.”
He does the retroactivity analysis carefully and follows the weight of authority, declining to apply substantive statutory amendments (e.g. the 2017 MHRA amendments) backward to pending claims. Brief the version of the statute in force when the claim accrued.
“The Court agrees with the vast majority of courts that have considered this issue, and finds these two particular MHRA amendments are substantive in their operation. Accordingly, the Court will not retrospectively apply these MHRA amendments to Plaintiff's claims.”
Procedural preferences
He will not resolve genuine factual disputes at summary judgment and lets fact-intensive qualified-immunity questions go to the jury where the immunity facts overlap the merits facts. Frame your SJ motion around undisputed facts only.
“Because the facts related to qualified immunity are the same disputed facts that the jury must consider in assessing liability, the Court cannot determine Gauert is qualifiedly immune.”
He treats a party's failure to respond to an argument as a concession (waiver). Respond to every distinct argument, especially at summary judgment.
“By failing to respond to that argument, Plaintiff tacitly concedes that claim.”
He strictly enforces the Local Rules, including page limits and the rule that fact statements must contain facts (not argument), and will escalate from denial-without-prejudice to denial-with-prejudice for repeat non-compliance. Comply with the Local Rules exactly.
“Moreover, Plaintiff's 'factual background,' which is roughly eight pages, is not limited to facts. Instead, it is rife with arguments and contentions.”
Cautions
He is impatient with conclusory, unanalyzed briefing that merely asserts a result is 'reasonable' or relies on a blanket exhibit reference without specifics. Support each contested point with specific record evidence and reasoning.
“Merely calling it 'reasonable' does not make it reasonable.”
On review of an agency decision he applies deferential substantial-evidence review and will not reverse simply because some evidence supports the opposite conclusion. Attack the sufficiency of the record, not the weight of the evidence.
“[The Court] will not reverse a decision simply because some evidence may support the opposite conclusion.”
Motion outcomes
Counted from classified signed orders only. Percentages are shown only where the sample is large enough to be meaningful; smaller samples are reported as raw counts.
| Summary judgment N = 3 |
Granted in part: 3 | counts only |
| Petition for writ of habeas corpus 2254 N = 1 |
Granted in part: 1 | counts only |
| Motion for certificate of appealability N = 1 |
Granted in part: 1 | counts only |
| Social security appeal N = 1 |
Denied: 1 | counts only |
| Motion to reconsider N = 1 |
Moot / procedural: 1 | counts only |
A "1 of 1" is one ruling, not a tendency. Treat small samples as illustrative, not predictive.
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“One motion (Doc. # 77) was filed on behalf of Rich Gauert; this motion is denied with respect to Counts I and VII and granted in all other respects.”
“The second motion (Doc. # 86) is filed on behalf of the remaining defendants; this motion is granted with respect to Counts I through IV and the remaining counts are dismissed without prejudice.”
“Accordingly, the Commissioner's final decision to terminate Plaintiff's benefits is affirmed.”
“For the following reasons, the motion (Doc. # 1) is granted in part and denied in part.”
“Furthermore, to the extent the motion is denied, the Court grants in part a Certificate of Appealability.”
“For the foregoing reasons, Defendant's motion for summary judgment is denied with regard to all of Plaintiff's race discrimination claims, granted with regard to all of Plaintiff's age discrimination claims, granted with regard to Plaintiff's claims that his suspension was retaliatory, denied with regard to Plaintiff's retaliation claim based upon Defendant's alleged failure to investigate or take action to curtail Plaintiff's lengthy suspension, and denied with regard to Plaintiff's retaliation claim based upon his vacation allotment, and granted with regard to Plaintiff's retaliation claim based upon Defendant's challenge to his claim for unemployment benefits.”
“For these reasons, the Court, once again, denies Plaintiff's motion to reconsider without prejudice.”