IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, Atlanta Division
JAMES B. STEGEMAN, JANET D. MCDONALD,
FILE NO: 1:08-CV-1971
vs. SUPERIOR COURT STONE MOUNTAIN JUDICIAL CIRCUIT;
RULE 60(b) RELIEF FROM JUDGMENT
SUPERIOR COURT JUDGE CYNTHIA J. BECKER, in her individual capacity; GEORGIA POWER COMPANY; BRIAN P. WATT, Esq., in his Partnership, Professional and Individual Capacities; SCOTT A FARROW, Esq., in his Partnership, Professional and Individual Capacities; Defendants PLAINTIFFS‟ MOTION FOR RECONSIDERATION OF ORDER DENYING PLAINTIFFS RELIEF FROM JUDGMENT
COMES NOW, Plaintiffs who file Plaintiffs’ Motion for Reconsideration of Order Denying Plaintiffs Relief from Judgment. Plaintiffs Move the Court to
Reconsider it‘s Order Denying them Relief, and to cite authority supporting this Court‘s Ruling. This Court has failed/refused to address the grounds for which Plaintiffs requested relief under Rules 60(b)(2),(3),(4), and (6) and stated only that Plaintiffs were barred by the one year statute of limitations, and what was not barred by the one year statute of limitations, Judge Duffey himself has been deemed untimely anyway. Plaintiffs have shown through undisputed fact that there is newly discovered evidence; that officers of the Court knowingly, willingly, wantonly, maliciously and with intent to harm Plaintiffs fabricated and forged real property documents and committed a fraud upon the court to obtain rulings in their favor and to defraud the Plaintiffs. Plaintiffs, only a few days ago, discovered that the Exhibits they had attached to their Rule 60(b) Motion/Brief, appear nowhere on the Docket as having been filed, and are not included as part of the Brief. It is unconscionable that due to the legitimacy of Plaintiffs‘ claims, their evidence and pleadings are so conclusive, that the Courts, the court‘s Clerks, and others who are officers of the Court, have had to resort to removing documentation from Plaintiffs‘ filings, falsifying docket reports, fabrication of evidence, creating fictional discovery -2-
disputes, signing and having Orders filed eighteen minutes before the hearing is set to begin, and that a Judge would act as counsel for the defendants as the only means to see that the defendants win this case. It is further unconscionable that the Courts and their clerks have tampered with and hindered Plaintiffs‘ ability to prosecute their case and their Right to Appeal. ARGUMENT AND CITATION OF AUTHORITIES EXHIBIT 1: The Docket Report - clearly shows that the last entries prior to Plaintiffs‘ Motion for Relief under Rule 60(b)(2),(3),(4), and (6), was on March 31, 2009, and July 08, 2009 respectively.1 The Docket Report, and History of Documents shows no Exhibits or attachments included with the March 2010 Motion and Brief. Either the Court or it‘s clerk removed the Exhibits of ―newly discovered evidence‖, and falsified the date the Motion was delivered to the Court, so that the claim could be made that Plaintiffs‘ motion was untimely. I.
FAILURE TO ADDRESS PLAINTIFFS‟ GROUNDS FOR RELIEF
*EXHIBIT 2 from the United States Postal Service, shows they delivered the Motion and Brief on March 31, 2010; the Docket report shows April 1, 2010 Judge Duffey claimed that the Motion was untimely, because of a one year statute of limitation, thus the explanation of why the Motion was held until the following day before being filed. -3-
Judge Duffey, failed/refused to address the grounds for which Plaintiffs sought relief under FRCP Rules 60(b)(2),(3),(4), and (6); the three (3) page Ruling failed/refused to cite authority for refusing to Grant Plaintiffs‘ Motion. The Court complained that Plaintiffs had already filed a motion for reconsideration [Doc.45, pg.3], and that ―successive motions will not be entertained.‖
Plaintiffs have met the requirements for their Motion, they have
shown that there is new evidence which could not have been obtained prior to the Court‘s Ruling, or in time for a Rule 59 motion for new trial; they have shown that defendants committed fraud upon the court to obtain rulings in their favor; they have shown that they were denied a fair and impartial tribunal thereby denied due process which makes rough the Court‘s Rulings void; and other acceptable grounds for the setting aside of the judgment. Nevertheless, the court ignored, and denied Plaintiffs‘ Motion as a whole. Further, the court is well aware that the Plaintiffs would be,2 and have been
Although in his Ruling, Judge Duffey stated that he was confident that Plaintiffs would have the opportunity to bring their Civil and Constitutional Rights violations in front of Judge Becker [Doc.20,pgs.19-20], Judge Duffey knew for a fact that Plaintiffs‘ case had been dismissed with prejudice by Judge Becker in retaliation, the day after Judge Becker was served with Summons and complaint. Nevertheless, Judge Duffey‘s claim of confidence in Judge Becker, must have meant that he was confident that she would not recuse herself and that even though neither she nor the Superior Court had jurisdiction over Plaintiffs‘ real property at that point, that Judge Becker would see to it that Georgia Power prevailed. -4-
denied the Right to seek redress of Civil and Constitutional Rights under color of law in state court, and have no other avenue to seek redress for the violations. Judge Duffey‘s Order dismissing under Younger states that Plaintiffs may have a legitimate complaint, but should they come back to Federal Court, he will have the case dismissed under ―res judicata, and collateral estoppel‖ [Doc.21,pg21], guaranteeing the defendants that Plaintiffs will be blocked should they try to refile their case. Fed. R. Civ. P. Rule 60(b)(2) “newly discovered evidence which by
due diligence could not have been discovered in time to move for a new trial under Rule 59(b)” 1.
Newly discovered evidence shows that Georgia Power knowingly,
willingly, wantonly, maliciously and with the intent to defraud the Plaintiffs, withheld vital information, thereby causing harm to Plaintiffs: *
EXHIBIT 3: Affidavit of Attorney Marcus Calloway page 2 ¶3 shows
that Dale Reiner from Georgia Power Co. contacted him on August 13, 2007 for a title search; page 3, ¶10 shows that Mr. Reiner again contacted Mr. Calloway November 20, 2007 to request a public records search. Defendants filed their Verified Answer in Superior Court on December 3, 2007 well after Mr. Calloway‘s research. Having been denied all knowledge of Mr. Calloway and the services he had -5-
performed for Georgia Power, has violated due process of law, and kept pertinent information from the Plaintiffs that would have assisted their prosecution of their case. "In general, relief is given under clause 6 in cases in which the judgment was obtained by the improper conduct of the party in whose favor it was rendered …." Section 2864, p. 213. See generally, 11 C. (Wright & A. Miller, Federal Practice and Procedure, § 2864 (1970)) Further, officers of the Court, secreted information, fabricated evidence, and perjured themselves within the courts, thereby committed fraud upon the court to obtain favorable rulings. The Court aided the defendants‘ and showed favoritism toward the defendants by creating and adding defenses for them; Judge Duffey‘s actions denied Plaintiffs due process of law, denied Plaintiffs a fair and impartial tribunal. The Rulings are not merely voidable, they are void and must be set aside. In Fisher v. Amaraneni, 565 So. 2d 84 (Ala. 1990), the court defined a judgment as void if the court ―acted in a manner inconsistent with due process." Id. at 86 (citing Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala. 1978)). It should be noted here that a Rule 60(b)(4) motion involves a different standard of review than the other Rule 60(b) subsections since the court held "[w]hen the grant or denial turns on the validity of the judgment, discretion has no place for operation. If the judgment is void it must be set aside ...." Fisher, 565 So. 2d at 87. -6-
The first time Georgia Power contacted Mr. Calloway, Plaintiffs‘ property had yet to be trespassed onto and criminally damaged. Undisputed facts clearly show that Georgia Power had actual knowledge that they lacked an easement over Plaintiffs‘ property.3 This vital information had been secreted from Plaintiffs in both the Superior Court, and in this Court, it is newly discovered evidence. "Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d at 1119‖ In Bulloch v. United States, 763 F.2d 1115 (10th Cir. 1985) held the following: ―Fraud on the court (other than fraud as to jurisdiction) is fraud which is directed to the judicial machinery itself…. H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir.). It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function--thus where the impartial functions of the court have been directly corrupted.‖ * EXHIBIT 4:
Judge Becker‟s Order Granting Georgia Power Summary
Judgment and Prescriptive Easement to Georgia Power, shows the Order was signed and file by 9:12 AM the morning that the hearing was supposed to begin at 9:30 AM. 3
Mr. Calloway further stated that Georgia Power had him look into the property again in November, before Georgia Power filed their Verified Answer in Superior Court, showing that Georgia Power‘s Verification in Superior Court was an act of fraud upon the Court and perjury by Georgia Power‘s in house counsel. -7-
Plaintiffs have failed to comprehend how a Ruling claiming that Plaintiffs failed to appear at the hearing [Ex.4] was already signed and filed, eighteen (18) minutes before the hearing began. In DeKalb County Superior Court, the Judge is not even in the courtroom at 9:30 AM. * EXHIBIT 5:
State and County Real Property Records4 show a ―sale‖ of
Plaintiffs‘ property to Georgia Power. The Order and references on their Deeds, and Real Property Records at DeKalb County Property Tax Division [Ex.4,5] are also ―newly discovered evidence that could not have been discovered in time to file for FRCP Rule 59(b) new trial. B.
Fed. R. Civ. P. Rule 60(b)(3) Requirements: (This subsection of the Rule is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.) The conduct complained of must be such as prevented the losing party from fully and fairly presenting his case or defense. Toledo Scales Co. v. Computing Scale Co., 261 U.S. 399, 421, 43 S.Ct. 458, 464, 67 L.Ed. 719 (1923); Atchison, Topeka & Santa Fe Ry. Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Rubens v. Ellis, 202 F.2d 415, 417 (5th Cir. 1953). Although Rule 60(b)(3) applies to
As shown on file http://www.gsccca.org
misconduct in withholding information called for by discovery, Petry v. General Motors Corp., 62 F.R.D. 357 (E.D.Pa.1974), it does not require that the information withheld be of such nature as to alter the result in the case. Seaboldt v. Pennsylvania RR. Co., 290 F.2d 296, 299-300 (3d Cir. 1961).5 The mere fact that Georgia Power‘s in house counsel perjured himself, and hid the fact that there had been an examination of Plaintiffs‘ real property records and Georgia Power‘s fraudulent easement documents, shows that pertinent information and evidence was withheld ―that prevented‖ the Plaintiffs from ―fully and fairly presenting their case. C.
Fed. R. Civ. P. Rule 60(b)(4) Wright & Miller comments further on the nature of the "special showing"
necessary under subsection 6. "In general, relief is given under clause 6 in cases in which the judgment was obtained by the improper conduct of the party in whose favor it was rendered …" Section 2864, p. 213.6 Georgia Power defendants‟ Memorandum of Law in Support of Motion to Dismiss [Doc.3-2] pg. 10 is an implied admission that has never been disputed or rebutted in any way:
See generally, 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2861 (1970)
See generally, 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2864 (1970) -9-
―committed fraud upon the court, maliciously and negligently abused process within the Court, made false statements to and within the Court, then requested the Court to Falsify a record for them … Georgia Power and its attorneys sought to have the case against it dismissed.‖ In essence, the Georgia Power defendants‘ statement results in their implied admission, silent admission to the allegations of fraud, forgery, having the Superior Court case dismissed through a fictional discovery dispute, conspiring with the Superior Court defendants, and fraud upon the court to obtain rulings in their favor consistent with the requirements for ―a void judgment‖. It has been held that ―A void judgment is one that has been procured by extrinsic or collateral fraud‖ Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987). Plaintiffs‘ Motion and showing to the Court required the Court to ―vacate the judgment under Rule 60(b)(4): ―Under Rule 60(b)(4) a deferential standard of review is not appropriate because [i]f the underlying judgment is void, it is a per se abuse of discretion for a district court to deny movant‘s motion to vacate the judgment under Rule 60(b)(4).‖ Antoine v. Atlas Turner, Inc., 66F.3d 105, 108 (5th Cir. 1995) (quoting United States v. Indoor Cultivation Equip from High Tech Indoor Garden Supply, 55 F.3d 1311, 1317 (7th Cir, 1995)). See also Charles Alan Wright, Arthru R. Miller & Mary Kay Kane, Federal Practice and Procedure §2862 (2d ed. 1995) (There is no question of discretion on the part of the court when a motion is under Rule 60(b)(4).‖ ―As many circuits have recognized the absence of discretion under Rule - 10 -
60(b)(4) necessitates de novo review.‖ Sea-Land Serv., Inc. v. Caramica Europa II, Inc., 160 F.3d 849, 852 (1st Cir. 1998); Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998); Wilmer v. Board of County Comm‘rs. Of Leavenworth County, 69 F.3d 406, 409 (10th Cir. 1995); Indoor Cultivation Equip., 55 F.3d @ 1317; Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1469 (9th Cir, 1995); Page v. Schweiker, 786 F.2d 150, 152 (3rd Cir. 1986). Because Judge Duffey denied Plaintiffs due process of law, he had to disqualify himself, which he refused to do; he clearly acted ―outside of his legal powers‖ Carter, 136 F.3d at 1005 (citation omitted); see also Antoine, 66 F.3d at 108 (quoting In re Edwards, 962 F.2d 641, 644 (7th Cir. 1992)). The Georgia Power defendants have never disputed that they fabricated the easement document, and never rebutted Plaintiffs‘ showing that Mr. Wells never existed. ―Fabrication of evidence… will constitute a fraud upon the court.‖ ―That fraud which will dictate that the Ruling must be set aside.‖ As the district court explained in United States v. International Telephone & Telegraph Corp., 349 F.Supp. 22, 29 (D.Conn.1972), aff'd without opinion, 410 U.S. 919, 93 S.Ct. 1363, 35 L.Ed.2d 582 (1973): ―Generally speaking, … the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Root Refin. Co. v. - 11 -
Universal Oil Products, 169 F.2d 514 (3d Cir. 1948) 7 J. Moore, Federal Practice, ¶ 60.33 at 510-11.‖ Wright & Miller comments further on the nature of the "special showing" necessary under subsection 6: "In general, relief is given under clause 6 in cases in which the judgment was obtained by the improper conduct of the party in whose favor it was rendered‖ Defendants in both state and federal Courts worked a fraud upon the Court to obtain judgments in their favor. See Bulloch v. United States, 763 F.2d held the following: ―Fraud on the court… is directed to the judicial machinery itself … H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir.). It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function--thus where the impartial functions of the court have been directly corrupted.‖ "Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court." Porter, 536 F.2d at 1119.‖ ―Fraud upon the court" has been defined by the 7th Circuit: "…fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23" The Georgia Power defendants have made a mockery of the court(s); and the - 12 -
Court‘s clerks‘ apparent willingness to violate rules and procedures, shows a furtherance of fraud upon the Court.‖ ―Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final." Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, "'relief is not a discretionary matter; it is mandatory.'" Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)). Judge Duffey tried to claim that Plaintiffs‘ Motion was not timely, but sister circuits have long held that ―Although Rule 60(b)(4) is ostensibly subject to the "reasonable" time limit of Rule 60(b), at least one court has held that no time limit applies to a motion under the Rule 60(b)(4) because a void judgment can never acquire validity through laches. See Crosby v. Bradstreet Co., 312 F.2d 483 (2nd Cir.) cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963) where the - 13 -
court vacated a judgment as void 30 years after entry. See also Marquette Corp. v. Priester, 234 F.Supp. 799 (E.D.S.C.1964) where the court expressly held that clause Rule 60(b)(4) carries no real time limit. There is no question, under 60(b)(4), Plaintiffs‘ Motion is timely, this Court‘s Ruling is void, and Plaintiffs have made a proper showing, the ruling must be set aside. D.
Fed. R. Civ. P Rule 60(b)(4)/60(b)(6)
TAMPERING WITH/HINDERING/DENYING RIGHT TO APPEAL Appellant‘s Motion to Appeal in Forma Pauperis was Granted by District
Court December 26, 20087. Appellant filed Motion for Appointment of Counsel January 7, 2009. Judge Hull‟s Order Denying Plaintiff Mr. Stegeman‟s Motion for Appointment of Counsel January 16, 2009, stated that Plaintiff Ms. McDonald denied Ms. McDonald her Rights to Appeal. Motion for Reconsideration was filed January 30, 2009, Denied February 11, 2009. A.
Denial of Ms. McDonald‟s Right to Appeal
Ms. McDonald was neither alerted to a defect in Plaintiffs‘ Notice of Appeal,
District Court Order Ruled that the Appeal is not frivolous, and that Appellant is disabled with limited resources - 14 -
nor allowed to cure the defect. The U.S. Supreme Court has stated that Right to Appeal is not lost due to a defect in Notice; Plaintiff/Appellant must be ―Noticed‖ and afforded opportunity to cure the defect‖. Becker 532 U.S. at 764, 766. Judge Hull‘s Order Denying Appellant‘s Motion for Appointment of Counsel clearly stated that Ms. McDonald was not part of the Appeal. In Casanova v. Dubois, 289 F.3d 142, 145 (1st Cir. 2002) at 146 ―eighteen months had passed after Notice of Appeal had been filed‖; ―based on Becker, the dismissal of appeals …was unwarranted.‖
And in Wash v. Johnson, 343 F.3d
685 (5th Cir. 2003): ―The Supreme Court‘s holding in Becker,…is jurisdictional and may be cured…once omission is called to a party‘s attention, effectively overrules our holdings in Mikeska and Cater‖ ―…based upon Becker and in agreement with our sister circuit‘s reasoning in Casanova, we grant Moore‘s motions to reinstate appeal and to reconsider the clerk‘s refusal to do so…‖ Appellant filed Motion to Recuse Judges Hull, Wilson and Marcus February 18, 2009; Georgia Power Appellees filed Objection February 23, 2009 to which Appellant filed a Reply on March 6, 2009.
The Motion went totally ignored.
The Appellate clerk ruled Motion to Recuse Moot, and dismissed the appeal for want of prosecution [Doc.39] in violation of
the 11th Circuit Court of
Appeals‘ own Rules and the FRAP, thereby she further violated Plaintiffs‘ Rights.
- 15 -
Denial of Mr. Stegeman‟s Right to Appeal From inception, the Appellate Clerk tampered with and hindered Plaintiffs‘
attempt to Appeal. Judge Hull saw to it that a Plaintiff Ms. McDonald was not afforded opportunity to cure defect in Notice, and take part in the appeal; and the Appellate Clerk failed to adhere to 11th Cir. R. 42-1(b), thereby denying Plaintiff Mr. Stegeman his‘ Right to Appeal, obvious disparate treatment. Plaintiffs had been treated differently than others in the same position, which resulted in discrimination, Civil and Constitutional Rights violations, violations of equal protection, and violation of ADA Title II. On the subject of disparate treatment and discrimination, this Court held in Nadler v. Harvey, No. 06-12692 (2007) C11.0001538 ―…occurs when a disabled individual is treated differently than a non-disabled or less disabled individual…‖ The Supreme Court in Lane upheld Title II as ―valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services‖ 541 U.S. at 331. ―The Supreme Court further held that Title II enforces rights under the Equal Protection Clause, …―a variety of other basic constitutional guarantees, and infringements‖…‖an array of rights subject to heightened constitutional scrutiny under the Due Process Clause of the Fourteenth Amendment. Lane, 8
The case was before Judges Edmondson, Hull and Forrester - 16 -
541 U.S. at 522-523; accord Constantine, 411 F.3d at 486-487. ―Mere negative attitudes alone cannot justify disparate treatment of those with disabilities‖ University of Ala. V. Garrett, 531 U.S. 356, 367 (2001). C.
Clerk‟s Violation of 11th Cir. R. 42-1(b) ―…when appellant fails to file a brief or other required papers within the time permitted,…the clerk shall issue a notice…, that upon expiration of 14 days from the date thereof the appeal will be dismissed for want of prosecution if the default has not been remedied by filing the brief….‖. Plaintiff was not provided the Court of Appeals Local Rules, Rule 42-1(b)
Notice, which goes against U.S. Supreme Court Rulings on the issue. One doesn‘t have to be extremely intelligent to conclude that Plaintiffs‘ Appeal had been predetermined. The United States Supreme Court, and sister circuits have long held that that the late filing of a brief is ―insufficient to warrant dismissal‖, see Marcaida v. Rascoe, 569 F.2d 828 (5th Cir. 1978):  This court is not required to dismiss every appeal which does not meet the time limitations…In Phillips v. Employees Mut. Liability Ins. Co., 239 F.2d 79, 80 n.2 (5th Cir. 1956), …the late filing of briefs is „at most [a] non-jurisdictional [defect]…which we consider insufficient to warrant dismissal‘. See also King v. Laborers Internat‘l Union, 443 F.2d 273 (6th cir. 1971); United States v. Edwards, 366 F.2d 853 (2 Cir. 1966); cert. denied, 386 U.S. 908, 87 S, Ct. 852, 17 L.Ed. 2d 782 (1967); cf. Walker v. Matthews, 546 F.2d 814 (9th Cir. 1976) - 17 -
(late filing of record). ―In Childs v. Kaplan, 467 F.2d 628 (8th Cir. 1971), the court held that the appeal of an appellant who did not file a brief would not be dismissed for want of prosecution….‖ C Clerk‟s Communications To the average lay person apprised of all the facts, would be forced to conclude that this Court and it‘s clerk, working in harmony with the Appeals court and it‘s clerk effectively halted Plaintiffs‘ ability to appeal the trial court‘s ruling. The following shows to what extent the appellate clerk had been willing to go to stop Plaintiffs‘ appeal. * EXHIBIT 7: Letters received from the appellate clerk. (a) 9 April 1, 2009 Plaintiff received, a copy of a Clerk to Clerk communication that the Appeal had been Dismissed for failure to prosecute, and Motion to Recuse was Moot.10 Motion to Recuse is an appealable Order that cannot become Moot because the appellate court and it‘s Clerk chose to ignore it. Appellant‘s Brief and Record Excerpts11 per April 6, 2009 conversation with
(a) thru (d) are subsections of Exhibit 7, i.e. Exhibit 7(a); 7(b), etc.
Appellant was not sent Notice, or an Order, he only received the Clerk to Clerk communication which stated Appeal was dismissed and Motion to Recuse was Moot. 11
Records Excerpts consisted of: District Court Docket Sheet, Complaint, Answers from both sets of Appellees, the Rulings/judgments Appealed, Certificates of Interested Persons, and Certificates of Service. - 18 -
clerk, were hand delivered to the Court Clerk, via courier on April 13, 200912 (does not show filed until April 16, 2009). (b)
April 18, 2009 Appellant received a letter from the Appellate Clerk stating
Mr. Stegeman had failed to file a Motion to Reinstate.13 Plaintiff quickly, within three (3) days, filed Motion to Reinstate the Appeal April 22, 2009. (c)
May 8, 2009 letter from the Appellate Clerk that the Court had not received
Order/judgment appealed from, or a Certificate of Service for Record Excerpts. Although Appellant is 100% positive the documents had been submitted with the Brief and Record Excerpts, he re-submitted them, via USPS Overnight signed for by S. O‘Neal on May 15, 2009. (d)
May 22, 2009 letter stated ―if the corrections for the record excerpts were
not received within fourteen days, the motion to reinstate will be returned unfiled‖. Plaintiff called the clerk, was told she was out of town for the week. Appellant again sent the document.
Appellant quotes the date he received a communication from the Clerk; the date(s) he references as filing or filed are the dates stamped ―FILED‖ on Appellant‘s copies; Appellant calls to this Court‘s attention that he cannot be sure what was actually Filed, as the Docket Report does not coincide with his ―Filed‖ copies. Appellant cannot say for sure the document was ever even Filed, although his copy does reflect ―Filed‖, not ―Received‖, but ―Filed‖. 13
The telephone conversation with the Clerk informed Appellant that the only thing needed to be filed was the Brief and Record Excerpts, which was timely complied with; - 19 -
July 09, 2009, Plaintiff Mr. Stegeman received Order Denying Motion to Reinstate [Doc.40]; Denial of Appellant‘s Motion resulted in manifest injustice brought about by misrepresentation, fraud, and fraud upon the Courts by defendants in order to defraud the Plaintiffs and to obtain rulings in their favor in Superior Court, the District Court, finally in the Appellate Court. Further, as a disabled pro se litigant, Appellant has been subjected to disparate treatment; denied his Fourth, Fifth and Fourteenth Amendment Rights, ADA Title II, and the equal protection clause. III. REFUSAL TO RULE ON RECUSAL UNTIL FINAL RULING EFFECTIVELY DENIES THE LITIGANT‟s RIGHT TO A FAIR AND IMPARTIAL TRIBUNAL, AND THE RIGHT TO APPEAL THE RULING The verbal abuse, hostility, harassment, intimidation and denial of due process bestowed upon the Plaintiffs in this case shows ―such a degree of favoritism‖ and ―antagonism as to make fair judgment impossible‖ Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.E.2d 474, (1994): It is wrong in theory …, to suggest, as many opinions have, that "extrajudicial source" is the only basis for establishing disqualifying bias or prejudice. It is the only common basis, but not the exclusive one, … A favorable or unfavorable predisposition can also deserve to be characterized as "bias" or "prejudice" because, … as to display clear inability to render fair judgment. (That explains what some courts have called the "pervasive bias" exception to the "extrajudicial source" doctrine. See, e. g., Davis v. Board of School Comm'rs of Mobile County, - 20 -
517 F. 2d 1044, 1051 (CA5 1975), cert. denied, 425 U.S. 944 (1976)). Judge Duffey, Jr., and the verbal assault upon these Plaintiffs falls within the category of the ―pervasive bias exception to the extrajudicial source doctrine‖. Obviously, the Judge‘s actions clearly show that he could not find in favor of Plaintiffs whether every other Judge would have or not. The ―high degree of favoritism and antagonism displayed by Judge Duffey against these Plaintiffs show that a fair judgment was impossible. Further, in Judge Duffey‘s Rulings, he continually addressed the defendants first. Plaintiffs have read many of Judge Duffey‘s Rulings in other cases, which he always addresses the Plaintiffs, and then the defendants as other Judges do. When these particular Plaintiffs are before the Court, the defendants are discussed first; showing his deep seated favoritism. There is no question that Judge Duffey had to disqualify himself from sitting over this case due to prejudice/bias, and favoritism/preferential treatment of the defendants, and his close affiliations with the defendants. Another example is the way he referred to and spoke of Judge Cynthia Becker, ―Special Appearance by…‖ she filed no appearance at all; a litigant cannot come in as a party if they filed a dispositive motion to dismiss and refuse the court‘s jurisdiction. - 21 -
“appearance, n. Procedure. A coming into the court as a party or interested person….‖14 “special appearance. 1. A defendant‘s pleading… court lacks personal jurisdiction…‖15 ―Should a judge not disqualify himself, then the judge is in violation of the Due Process Clause of the United States Constitution. United States v. Sciuto, 521 F,2d 842, 845 (7th Cir. 1996). (―The right to a tribunal free from bias or prejudice is based, not on §144, but on the Due Process Clause‖). Therefore, Orders by a Judge who has been disqualified by law, resulting in a party being denied any property, could logically be viewed as having been engaged in the Federal Crime of ―Interferences with Interstate Commerce‖. Another perfect example of the bias/prejudice against these Plaintiffs is the verbal assault and over twenty pages that it took to write an Order to Dismiss under Younger Abstention, for lack of jurisdiction. The U.S. Supreme Court has held in a long and venerable line of cases that, without proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional defect and dismiss the suit. See, e.g., Capron v. Van Noorden, 2 Cranch 126; Arizonans for Official English v. Arizona, 520 U.S. 43. Bell v. Hood, supra; National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 465, n. 13; Norton v. Mathews, 427 U.S. 524, 531; Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per 14
Black’s Law Dictionary, 7th Ed. pg. 94
Black’s Law Dictionary, 7th Ed. pg. 95 - 22 -
curiam); United States v. Augenblick, 393 U.S. 348 ; Philbrook v. Glodgett, 421 U.S. 707, 721; and Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 86—88, distinguished. For a court to pronounce upon a law‘s meaning or constitutionality when it has no jurisdiction to do so is, by very definition, an ultra vires act. Pp. 8—17. IV.
UNITED STATES AND GEORGIA CONSTITUTIONS Judge Duffey, Jr. ruled that he had investigated into the proceedings in
Superior Court16 and found no constitutional or due process violations. One can only conclude that Judge Duffey has deemed Georgia statute concerning land (which is to be strictly adhered to)
unconstitutional, deemed that Georgia‘s
Supreme Court and Georgia Court of Appeals have ruled wrongly concerning real property and easements; and deemed that The United States and State of Georgia Constitutions concerning ―denial of life, liberty, or property without due process of law‖ is either fictional, or only for a select few. ―A court should be cautious in exerting its inherent power and ‗must comply with the mandates of due process‖ First Bank of Marietta v. Hartford Underwriters Insurance Company, 2002 U.S. App. LEXIS 21117, -25; 2002 FED App. 0356P (6th Cir. 16
Appellant has failed to find where a District Court Judge has authority to investigate into proceedings of a state Court; further, by looking into the proceedings (Duffey fails to explain what is meant by looking into the proceedings, one could deduce that he had exparte communications with Judge Becker, or all of the Defendants) Duffey goes against his own Ruling that the Federal Courts cannot be babysitters of state Courts. - 23 -
2002); In Re Atlantic Pipe Corp., 304 F.3d 136, 143 (1st Cir. 2002) Judge Becker in the Superior Court action, and a defendant, lacked personal and subject matter jurisdiction over Plaintiffs and their real property, ruled in favor of Georgia Power in the Superior Court proceeding after refusing to allow Plaintiffs the right to participate in or file a responsive brief to Georgia Power‘s Motion for Summary Judgment. Becker‘s ruling, a ruling obtained through fraud and fraud upon the Court, violated due process of law, and Plaintiffs‘ right to a fair and impartial tribunal.. Her Rulings go directly against Rulings of The Supreme Court of Georgia which has consistently Ruled against utility companies having prescriptive easement. The ruling isn‘t merely voidable, but it is Void on it‘s face.
PRAYER FOR RELIEF There is absolutely no legitimate reason for the disparate treatment of these Plaintiffs as they sought redress against state entities for acts which violated Plaintiffs‘ Civil and Constitutional Rights under color of law, while Plaintiffs had been attempting to exercise their statutory, civil and constitutional rights.
Becker, without following mandatory Georgia statute for issues involving real property and owners of the real property, granted Georgia Power what the Courts have repeatedly insisted Georgia Power cannot be granted. Judge Becker aided - 24 -
and assisted Georgia Power in the perpetration of several crimes. When a party has been denied the fundamental right of due process of law, real property taken without just and adequate compensation, they have a right to seek redress against the state. The Courts are not a sacred palaces reserved only for Judges and attorneys, in which the Judges have an obligation to attorneys, and act and rule in a manner that will guarantee the attorneys, long successful careers in the legal field. The actions of the Courts in this matter, causes everyone who has read the Briefs to question the integrity of the three Courts discussed above, and the integrity of the Judicial system as a whole. Relief setting aside the Ruling is necessary, required and just in this matter. Respectfully submitted, this 4th day of May, 2010,
By: ______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mtn, GA 30083 (404) 300-9782
By: ______________________________ JANET D. MCDONALD, Pro Se 821 Sheppard Rd Stone Mtn, GA 30083 (404) 300-9782 - 25 -
CERTIFICATE OF COMPLIANCE In compliance with LR 7.1D, N.D. Ga., I certify that the foregoing Motion has been prepared in conformity with LR 5.1, N.D. GA. This Motion was prepared with Times New Roman (14 point) type, with a top margin of one and one-half (1.5‖) inches and a left margin of one (1‖) inch, is proportionately spaced.
This 4th day of May, 2010
___________________________ JANET D. MCDONALD, Pro Se
- 26 -
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, Atlanta Division JAMES B. STEGEMAN, JANET D. MCDONALD,
FILE NO: 1:08-CV-1971
vs. RELIEF FROM JUDGMENT SUPERIOR COURT STONE MOUNTAIN JUDICIAL CIRCUIT, et., al; Defendants
CERTIFICATE OF SERVICE I Certify that I have this 4th day of May, 2010, served a true and correct copy of the foregoing Plaintiffs’ Motion for Reconsideration of Order Denying Plaintiffs Relief from Judgment. upon Defendants, through their attorney on file by causing to be deposited with U.S.P.S., First Class Mail, proper postage affixed thereto, addressed as follows: Daniel S. Reinhardt Troutman Sanders, LLP Bank of America Plaza – Suite 5200 600 Peachtree Street, NE Atlanta, GA 30308-2216
Devon Orland State of Georgia Dept. of Law 40 Capitol Square, S.W. Atlanta, GA 30334-1300
_____________________________ JAMES B. STEGEMAN 821 Sheppard Rd, Stone Mtn, GA 30083 (404) 300-9782 - 27 -