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Dealing w/ a judge biased against pro se/pro per parties

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  • Legalbear
    This “notice” was almost used in a trademark/trade dress case. Right before it was about to be filed, the corporate defendants obtained counsel and the new
    Message 1 of 1 , May 3, 2007

      This “notice” was almost used in a trademark/trade dress case. Right before it was about to be filed, the corporate defendants obtained counsel and the new counsel felt the “notice” would somehow prejudice the case. In fact, I think the attorney threatened not to represent the corporations if this notice was filed. We were mystified at how “forgiving” the judge for his misconduct would hurt the case. As I noted before, everything ended up working out because the case ended up being settled to the Defendant’s satisfaction. I just remembered that I had a copy of this motion and considered including it in my “Judge on a Leash” package offered at www.judgeonaleash.com. I decided to use this for promotional purposes instead. This is a leashing a judge type motion that allows you to see the principles I described on the Google video in action. I would not keep using this over and over if it was not effective. J Bear

       

      UNITED STATES DISTRICT COURT
      MIDDLE DISTRICT OF FLORIDA
      ORLANDO DIVISION

      XXXXXXXXXXXXXXX, INC., a

      Florida corporation,

      Case No. 6:06-cv-XXX-Orl-XXX Plaintiff,

      vs.

      XXXXXXXXXXX, a Florida corporation, XXXXXXXXXX, a Florida corporation, and XXXXXXXXXXXX, an individual,

      Defendants.

      ________________________________________________/

      JUDICIAL NOTICE OF JUDICIAL MISCONDUCT

      I, AB, pursuant to Fed. R. Evid.  201(d) notify this Court of judicial misconduct as follows:

                    1. It is the duty of this Court to ensure that all involved receive a fair trial. News-Journal Corp. v. Foxman, 1991.C11.40608 <http://www.versuslaw.com> ¶ 32; 939 F.2d 1499 (11th Cir. 1991). It would seem that this Court’s duty of fairness would extend to every stage of the proceeding leading up to trial.

                    2. The jurisdiction of this Court cannot be conferred by waiver or non-assertion by counsel, and neither waiver nor non-assertion would affect the duty of this court to search the record for jurisdiction. Dobard v. John son, 1985.C11.41935 <http://www.versuslaw.com> ¶ 28; 749 F.2d 1503 (11th Cir. 1985).

      3. The validity of an order of a federal court depends upon that court's having jurisdiction over both the subject matter and the parties. Stoll v. Gottlieb, 305 U.S. 165, 171-172 (1938); Thompson v. Whitman, 18 Wall. 457, 465 (1874).

      4. The concepts of subject-matter and personal jurisdiction, however, serve different purposes, and these different purposes affect the legal character of the two requirements. Insurance Corporation Ireland v. Compagnie Des Bauxites De Guinee, 1982.SCT.42242 <http://www.versuslaw.com> ¶ 29; 456 U.S. 694 (1982).

      5. The requirement that a court have personal jurisdiction flows not from Art. III, but from the Due Process Clause. Insurance Corporation Ireland, supra @ ¶ 32. The personal jurisdiction requirement recognizes and protects an individual liberty interest. Id. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. Id. Thus, the test for personal jurisdiction requires that "the maintenance of the suit . . . not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940).

      6. A court cannot conclude all persons interested by a mere assertion of its own power. Insurance Corporation Ireland, supra @ ¶ 35.

       

      THE MB AFFIRMATION

                    7. Plaintiff’s counsel submitted returns of service to this Court consisting of the equivalent of affidavits or affirmations. Affixed as a cover page to these returns of service was a document prepared and signed by Plaintiff’s counsel entitled “Plaintiff’s Notice of Filing Affidavit of Service.” This document is noticeably not a “motion” as it does not ask this Court to do anything.

                    8.  Shortly thereafter, MB sent a document to this Court entitled “AFFIRMATION OF MB.” Contained within this affirmation, made under penalty of perjury, were facts from which, like the Plaintiff’s “Affidavit of Service,” this Court could dutifully review as part of the record to determine if it had obtained personam jurisdiction over the Defendants.

      9. Plaintiff’s counsels response to the filing of MB’s affirmation was to file a motion entitled “MOTION AND MEMORANDUM OF LAW TO STRIKE AFFIRMATION OF MB.”

      10. The only motions excused from compliance with Local Rule 3.01(g) are motions for:

       


      ·       injunctive relief

      ·       for judgment on the pleadings

      ·       for summary judgment

      ·       to dismiss

      ·       to permit maintenance of a class action

      ·       to dismiss for failure to state a claim upon which relief can be granted

      ·       or to involuntarily dismiss an action


       

      Conspicuously missing from this list of excluded motions are motions to strike.

      11. Conspicuously missing from Plaintiff’s motion to strike is any reference to the Plaintiff having complied with Local Rule 3.01(g).

                    12. This Court granted the Plaintiff’s motion to strike saying, “The affirmation, however, is unaccompanied by any motion or legal memorandum, because the affirmation cannot stand on its own, the Court GRANTS the motion to strike the affirmation without prejudice to re-filing it in support of a properly filed motion. See Local Rule 3.01(a).”

                    13. As recently as June 14th of this year in McGlothan v. Walmart Stores, Inc., 2006.MFL.0001503< http://www.versuslaw.com> ¶ 13; No. 6:06-cv-94-Orl-28JGG (M.D.Fla. 2006) this very division said:

      “Rule 12(f) of the Federal Rules of Civil Procedure provides that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter." It has been stated repeatedly that "[a] motion to strike is a drastic remedy[,]" which is disfavored by the courts and "will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties." Augustus v. Bd. of Public Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir.1962);*fn1 Story v. Sunshine Foliage World, Inc., 120 F. Supp. 2d 1027, 1030 (M.D. Fla. 2000); Seibel v. Society Lease, Inc., 969 F. Supp. 713, 715 (M.D. Fla.1997); Poston v. Am. President Lines Ltd., 452 F. Supp. 568, 570 (S.D. Fla.1978). Further, district courts have "broad discretion in disposing of motions to strike." Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976).”

       

      And yet, MB’s affirmation did not contain an insufficient defense; nor did it contain “redundant, immaterial, impertinent or scandalous matter;” nor did the Plaintiff’s motion to strike make any reference to Rule 12(f); nor was the Plaintiff’s motion in compliance with 3.01(g); nor has the Plaintiff made any attempt to comply with Local Rule 3.01(g) after the filing of the motion; and, MB’s affirmation was a far cry from having “…no possible relation to the controversy…;” and further, the only relationship her affirmation had to “…prejudice to one of the parties” was caused by the Plaintiff’s and their counsel.

                    14. In ruling on the Plaintiff’s motion to strike MB’s affirmation, there is no reference by this Court to “drastic remedy" or the fact that motions to strike are “disfavored by the courts.”

                    15. This Court also said while ruling on the Plaintiff’s motion to strike, “No party may appear or be heard by way of papers filed by MB because she is not an attorney admitted to practice in this Court.”

                    16. Yet, the process server is not a party to the case and yet his affidavit of return of service was accepted by this Court even though it was not accompanied by a motion. MB never claimed to be representing anybody; in fact, she claimed exactly the opposite; she claimed to have no relationship to two of the Defendants whatsoever. All MB did was tell this Court what happened to its’ process. Every court has the prerogative and duty to see that its processes are not abused. Marine Transport Lines v. Green, 1959.FL.40992 <http://www.versuslaw.com> ¶ 14; 114 So.2d 710 (Fla.App. 1959). The federal judiciary has a strong interest in ensuring that its processes function efficiently and are not abused. Reshard v. Britt, 1988.C11.41499 <http://www.versuslaw.com> ¶ 40; 839 F.2d 1499 (11th Cir. 1988).

      THE MOTION FOR TIME

      17. I filed a motion for time for all of the Defendant’s including myself in which to answer or otherwise respond. In that motion, I recognized that the corporations would need attorneys to represent them.

      18. This Court ruled on that motion by saying, “Local Rule 3.01(g) requires the party to confer with opposing counsel before filing a motion to attempt to resolve the issue and to report to the Court the other side's position. B did not comply with Local Rule 3.01(g), therefore, his motion is denied without prejudice.”

      19. Subsequently, on October 18th, 2006, this Court, by way of District Court Judge Axxxxxx, issued a show cause order to the Plaintiff ordering them to show cause why their case should not be dismissed for failure to comply with Local Rules 1.07(b) and 3.10(a) M.D.Fla. That order gives experienced attorneys 15 days to show cause why their case should not be dismissed even though 1.07(b) provides that failure to comply with the rule will result in the dismissal of the case “without notice.”

       20. The Magistrate of this Court in its’ October 3rd Order striking MB’s affirmation gives a non-attorney defendant 13 days in which to contact, locate, and bring up to speed attorneys for the corporate defendants.

      21. The Plaintiff has responded to District Court Judge Axxxxx’s Order to Show Cause by filing a motion for default. Interestingly, motions for default are not excluded from Local Rule 3.01(g), and yet, once again, Plaintiff’s counsel makes no reference to having attempted to comply with that rule. Plaintiff’s counsel also makes no reference to this Court’s show cause order except in passing. Nor does the Plaintiff show in their motion why they should be excused from the time requirements of Local Rules 1.07(b) and 3.10(a) M.D.Fla.

      22. In ruling on my motion for time this Court makes no reference to either my or the corporate defendant’s due process rights.

      23. For example, it has been said that Due process requires that "wherever one is assailed in his person or property, there he may defend." Windsor v. McVeigh, 93 U.S. (3 Otto) 274, 277 (1876).

      24. When I assert federal rights governed by federal law, it is this Court’s duty to make certain that they are fully protected. Arnold v. Panhandle & Santa Fe Railway Co., 1957.SCT.40703 <http://www.versuslaw.com> ¶ 11; 353 U.S. 360 (1957). This Court cannot make interpretations that nullify their effectiveness, for ". . . the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice." Davis v. Wechsler, 263 U.S. 22, 24.

      25. Please know that I did review local rules prior to filing the motion looking for a duty to confer prior to filing the motion and did not see it. I now know that my review was too cursory and assure this Court that I will make every effort to comply with the rule now that I am aware of it.

      26. I reviewed M.D.Fla. rulings concerning Local Rule 3.01(g) and noticed that:

      27. In Barber v. Ameriquest Capital Corp., 2006.MFL.0000069< http://www.versuslaw.com> ¶ 51; No. 3:04-cv-1296-J-32TEM (M.D.Fla. 2006) the Court noted the plaintiff's failure to comply with Local Rule 3.01(g) but with a warning rendered its' opinion anyway.

      28. In Myers v. Central Florida Investments, Inc., 2006.MFL.0000477< http://www.versuslaw.com> ¶ 16; No. 6:04-cv-1542-Orl-28DAB (M.D.Fla. 2006)  the Court noted that the objection to the motion's failure to comply with Local Rule 3.01(g) was well taken, but in view of the history of that case, held that the omission was not fatal.

      29. In Schaaf v. Smithkline Beecham Corp., 2006.MFL.0001975< http://www.versuslaw.com> ¶ 14; No. 3:06-cv-120-J-25TEM (M.D.Fla. 2006) the Court stated that its’ normal practice was to warn first time offenders that future motions may be denied without ruling on the merits if the Rules were not followed.

      30. In Jackson v. Geometrica, Inc., 2005.MFL.0000614< http://www.versuslaw.com> ¶ 12; No. 3:04-cv-640-J-20HTS (M.D.Fla. 2005) the Court gave offenders of the rule an opportunity to correct.

      31. I also noticed quite a few cases where Divisions of the M.D.Fla. devoted paragraphs of their rulings to explaining to attorneys the meaning of the rule and how it was to be applied i.e. letters and faxes were insufficient.

      IN SUMMARY

      32. This Court accepts affidavits from the Plaintiff that are unaccompanied by motions but rejects the same from a non-party. This Court grants motions from the Plaintiff that are not in conformity with the Local Rules but denies motions from the Defendant because they are not in conformity with the Local Rules to the prejudice of the constitutionally protected Due Process right to defend. Other orders issuing from this division recognize that motions to strike are a “drastic remedy" that are “disfavored by the courts,” but, in this instant case it appears that the Plaintiff is being allowed to use them with impunity and without warning. Other parallel courts are exercising discretion in such a manner that Local Rule 3.01(g) reaches its apparent goal of the economical expenditure of judicial resources while this Court utilizes the rule to prejudice the Defendant’s right to defend. The Judge of this Court gives experienced attorneys 15 days to respond to its’ show cause order that is not required by the rule, but the Magistrate denies my motion for time to answer or otherwise respond/defend because I failed to comply with Local Rules.

      NOTICE OF FORGIVENESS

      I recognize that we are all blind to our prejudices sometimes until they are pointed out and this appears to have been one case of that happening. I want the Magistrate of this Court to know that I forgive the above appearance of bias toward the Plaintiff and their counsel and without prejudicing my personam jurisdiction issues; I just ask that the Magistrate of this Court try and do a better job of maintaining impartiality in the future.

                                                 Thank you in advance,

                                                                _______________________________________

                                                                Axxxxxx Bxxxxxxxx 

       

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