Putting Your Judge On A Leash
Putting Your Judge on a Leash
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, the attorney threatened not to represent the defending corporations if this notice was filed. We were mystified at how "forgiving" the judge for his misconduct would hurt the case. Everything ended up working out because the case ended up being settled to the Defendant's satisfaction.
I had considered including this motion in the package I offer at www.judgeonaleash.com. At that webpage there is a free video I made wherein I discuss the principles that have made these types of motions highly successful.
I partly attribute the success of these motions to the frame of mind that I put myself into before writing them. Here is how I see the judge:
1) I see the judge as a man that aspirations, goals, and feelings.
2) I see him as an official that perceives himself to be underpaid.
3) I see him as someone that believes he has not been provided the resources to effectively do his job.
4) I see him as someone that relies heavily upon the attorneys representing the parties of each case to tell him succinctly and accurately what the law is for each case relieving him of the burden of looking it up and studying it out.
5) I perceive a judge as someone who does not consider a pro se or pro per as being capable of succinctly and accurately telling him what the law is for their case resulting in an increased work load for himself.
6) As a matter of law, I see him as a fiduciary. I see him as someone who has been entrusted with the power to enforce individual rights. I see him as the one who has been put in a position to bring the power of government to bear for the one who is correct as a matter of law and fact. And in that capacity, I see him as someone that is very vulnerable as a fiduciary may never take any action out of self-interest without breaching the position of trust with which he has been entrusted.
7) I see him as someone whose personal survival depends upon his errors being covered up or concealed.
8) I consider a judge who behaves in an intimidating manner to be someone who understands his or her vulnerability and that is attempting to conceal it.
Here is how I see myself:
1) I see myself as being meek; meek being defined as power under control.
2) I see myself as one that has the absolute power to completely trash a judge’s aspirations, goals, and feelings.
3) I see myself as being able to cause a judge to lose sleep; retire; and, as happened in one instance, commit suicide.
4) I see myself as being able to cause a judge to lose credibility in the eyes of his fellow judges; be they trial or appellate judges.
5) I see myself as being able to cause a judge to lose esteem in the eyes of the attorneys that practice before him.
6) I see myself as having sufficient knowledge to ruin a judge’s career.
7) I see myself as a chess master, who, by the leading of the Set-apart Spirit, as capable of putting any judge in checkmate through the masterful use of words.
8) And most importantly, I see myself as a doer of Jahuwah’s Word.
In the talk I gave in the above recording, I neglected to talk about one of the Scriptural principles that has made these motions successful. The principle I overlooked comes from Deuteronomy 20:10-13:
10 When I draw near to a city to fight against it, I proclaim peace to it. 11 And if that city makes an answer of peace to me and opens to me, then all the people found in it are be tributary to me and they serve me. 12 But if it refuses to make peace with me and fights against me, then I besiege it. 13 And when Jahuwah my Mighty Creator has given it into my hand, I smite every male there with the edge of the sword.
Basically, what I say in these motions is that the judge and I have a fight. The fight is because he has not given me one or more rights I am aware of, or have become aware of, having been denied. These motions in essence say here is the right or rights you have denied me, if you correct and give them to me, I will forgive you. If you do not, I will “besiege” you through every legal means available to me.
This is a sample of the types of motions that are in the package I sell at www.judgeonaleash.com. I would not keep using this over and over if it was not effective. Bear
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
XXXXXXXXXXXXXXX, INC., a
Case No. X:XX-cv-XXX-Orl-XXX Plaintiff,
XXXXXXXXXXX, a Florida corporation, XXXXXXXXXX, a Florida corporation, and XXXXXXXXXXXX, an individual,
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 counsel’s 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 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.
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,
PHONE #s: 970-330-3883/720-203-5142 c.
For mailing: Excellence Unlimited, 2830 27th St. Ln. #B115, Greeley , CO 80634
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 This scripture is probably the source of Luke 14:31-33 where Jahshuwah said, “Or what king, going out to engage in conflict with another king, will not first sit down and consider and take counsel whether he is able with ten thousand [men] to meet him who comes against him with twenty thousand? 32 And if he cannot [do so], when the other king is still a great way off, he sends an envoy and asks the terms of peace. 33 So then, any of you who does not forsake (renounce, surrender claim to, give up, [a]say good-bye to) all that he has cannot be My disciple.” Since we are so outgunned by Jahshuwah, we’d best become His servant.
 If it refuses to make peace with you, it is a command to besiege it! Laying low and attempting to avoid the fight violates the Commandment! If you refuse to make peace with Jahushuwah, he will besiege you! He will keep the Torah.
 It as a given that Jahuwah will deliver them into your hand.