Gallop v. Cheney
2011 U.S. App. LEXIS 8554
| 2d Cir. | 2011Background
- Gallop sued former senior U.S. government officials for allegedly causing the 9/11 attacks to advance policy objectives and mask a DoD funding misallocation; complaint filed December 15, 2008 in SDNY.
- District Court dismissed Gallop’s complaint as frivolous under Fed. R. Civ. P. 12(b)(6), before reaching other defenses.
- Gallop asserted Bivens, common law conspiracy to cause death and great bodily harm, and AT Act claims seeking damages.
- Complaint described various implausible theories about the Pentagon attack, including explosives/missile substitutes for Flight 77.
- Court held the pleaded facts were frivolous and failed to plausibly allege a conspiracy or actionable constitutional rights, and found the appeal frivolous.
- Court ordered show-cause sanctions for Gallop and counsel if the frivolous appeal proceeds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint states a plausible claim for relief. | Gallop argues well-pleaded facts support Bivens, conspiracy, and AT Act claims. | Defendants contend the facts are speculation and fail to plausibly support any claim. | No; the claims were found frivolous and not plausibly pleaded. |
| Whether Gallop should be granted leave to amend. | Gallop requested leave to amend if defects could be cured. | District Court was not required to grant amendment absent a request with a viable path to cure. | No error; leave to amend not required where amendment not sought or showings insufficient. |
| Whether conspiracy allegations were sufficient to survive dismissal. | Gallop asserts a meeting of the minds among conspirators. | Allegations are conclusory, vague, and unsupported by facts. | Conspiracy claims dismissed as baseless and delusional. |
| Whether sanctions for frivolous appeal are warranted. | (Not explicitly argued as a separate point) | Appeal deemed frivolous and vexatious; sanctions appropriate. | Sanctions awarded sua sponte; show-cause order issued for double costs and $15,000. |
Key Cases Cited
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) (pleading must include plausible claims, not naked assertions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for surviving a motion to dismiss)
- ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87 (2d Cir. 2007) (requires grounds to be pleaded to raise right to relief above speculation)
- Denton v. Hernandez, 504 U.S. 25 (U.S. 1992) (describes standard for factually frivolous claims)
- Leon v. Murphy, 988 F.2d 303 (2d Cir. 1993) (conspiracy claims must be supported by facts, not mere conclusions)
- Potamkin Cadillac Corp., 689 F.2d 379 (2d Cir. 1982) (court may sanction frivolous appeals; costs may be imposed)