MEMO to Chief Judge Mary Schroeder

Document Sample
MEMO to Chief Judge Mary Schroeder Powered By Docstoc
					 1   MEMO
 2
 3   TO:         Hon. Mary M. Schroeder, Chief Judge
 4               c/o Cathy A. Catterson, Clerk of Court
 5               U.S. Court of Appeals for the Ninth Circuit
 6               P.O. Box 193939
 7               San Francisco 94119-3939
 8               CALIFORNIA, USA
 9
10   FROM:       Paul Andrew Mitchell, B.A., M.S.
11               Private Attorney General and Plaintiff/Appellant
12               Mitchell v. AOL Time Warner, Inc. et al.
13
14   DATE:       December 27, 2002 A.D.
15
16   SUBJECT:    violations of the USDC’s Local Rules by Dale A. Drozd
17               in appeal #02-15269 and 372(c) complaint #02-89005
18
19   Dear Chief Judge Schroeder:
20
21   I will now prove to you that Dale A. Drozd made very serious errors
22   when he allegedly “denied” my MOTION FOR INTERLOCUTORY JUDGMENT AND
23   CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS.         These
24   errors caused numerous, adverse substantive consequences in this case.
25
26   Please compare the alleged “ORDER” signed by Dale A. Drozd as filed on
27   November 15, 2001, in Mitchell v. AOL Time Warner, Inc. et al. with
28   the clear directions as found in USDC Local Rule (“L.R.”) 78-230(b),
29   in Sacramento.    This alleged “ORDER” is reproduced in Appellant’s
30   EXCERPTS OF THE RECORD (“EOR”), Vol. Two of Four, Tab 21 (Docket #90).
31   See copy attached.
32
33   Concerning my “Motion to Strike All Pleadings by Attorneys Lacking
34   Credentials” and my separate “Motion for Interlocutory Judgment and
35   Challenge to the Constitutionality of an Act of Congress”, on Page 1
36   at lines 21-23 of his “ORDER” Mr. Drozd wrote:
37
38           However, plaintiff has not noticed the above motions for hearing
39           as required by Local Rule 78-230.
40
41   I am now quoting verbatim from L.R. 78-230(b):
42
43           Motions defectively noticed shall be filed, but not set for
44           hearing; the Clerk shall immediately notify the moving party of
45           the defective notice and of the next available dates and times
46           for proper notice, and the moving party shall file and serve a
47           new notice of motion setting forth a proper time and date. [bold
48           emphasis added]
49
50   Instead of following this Local Rule, the alleged “ORDER” as filed on
51   November 15, 2001, reads as follows on Page 2 at lines 4-10:
52
53           Accordingly, the court [USDC] HEREBY ORDERS that [the 2 motions]
54           are denied without prejudice. [Accordingly to what, I must ask?]
55
                  MEMO to Chief Judge Mary M. Schroeder, Ninth Circuit,
                           December 26, 2002 A.D.: Page 1 of 7
 1   Being accustomed to federal appellate practice, where motions        are
 2   generally not noticed for hearing, I normally do not do so in        the
 3   district courts because the Clerk should recommend available dates   and
 4   times as a matter of routine. In my case, the Clerk did not do       so,
 5   however. So, Mr. Drozd is punishing me for the Clerk’s mistake.
 6
 7   Moreover, if Mr. Drozd had read and rightly understood my MOTION FOR
 8   INTERLOCUTORY JUDGMENT, he would have realized immediately the
 9   essential point of that MOTION, namely, it timely and properly
10   challenged the proper scope and applicability to the District Court of
11   the United States(“DCUS”) of the entire FRCP and of all Local Rules,
12   as a fundamental and threshold matter in the first instance.
13
14   Thus, not only did his conduct violate USDC’s Local Rule 78-230(b);
15   it also was entirely out of order by presuming and/or jumping to his
16   preconceived conclusions that the Local Rule he cited did apply to the
17   DCUS and did bind parties. As such his conduct denied due process.
18
19   The scope of the Local Rules, in particular, was then clarified in my
20   FIRST SUPPLEMENT TO MOTION FOR INTERLOCUTORY JUDGMENT, EOR Vol. Three
21   of Four, Tab 27 (Docket #100).    See the USDC’s Local Rules 1-100(a)
22   and 1-102(a) in Sacramento, to wit:
23
24        Local Rule 1-100(a) clearly reads:
25        (a) Title.     These are the Local Rules of Practice for        the
26             United   States   District   Court, Eastern District        of
27             California. They may be cited as “L.R.”
28
29        Similarly, Local Rule 1-102(a) clearly reads:
30        (a) Scope.     These Rules govern all litigation in the United
31             States   District   Court  for   the  Eastern District   of
32             California, the boundaries of which are set forth in 28
33             U.S.C. § 84. ... [N]o matter appropriate for inclusion in
34             these Rules shall be treated by General Order. No litigant
35             shall be bound by any General Order. [bold emphasis added]
36
37   Also, just this morning, at the downtown law library in San Diego,
38   California, the excellent reference librarians there succeeded in
39   locating for me a copy of General Order 345 titled “In Re: Consent to
40   Jurisdiction by U.S. Magistrate Judge.” Quoting in pertinent part:
41
42        GOOD CAUSE APPEARING, the Judges of the Eastern District of
43        California hereby adopt this General Order concerning the
44        assignment of cases to U.S. Magistrate Judges.
45        ...
46        If any party chooses not to consent, the case will be randomly
47        assigned to a U.S. District Court Judge.     The case will remain
48        with the previously assigned U.S. Magistrate Judge who will
49        manage the progress of the action and rule on all non-dispositive
50        motions pursuant to 28 U.S.C. § 636(b)(1)(A) and all dispositive
51        motions by findings and recommendations pursuant to 28 U.S.C. §
52        636(b)(1)(B) in accordance with Local Rule 72-304(c)(15) and (17)
53        [not in Sacto.] IT IS SO ORDERED. Dated: October 17, 1997.
54                                                    [bold emphasis added]
                MEMO to Chief Judge Mary M. Schroeder, Ninth Circuit,
                         December 26, 2002 A.D.: Page 2 of 7
 1   BUT, I was never served with General Order 345 by the Clerk of Court,
 2   nor by Mr. Drozd, nor by Mr. Shubb.    I first heard about it today.
 3   Also, General Order 345 appears on its face to violate L.R. 1-102(a),
 4   because the duties of magistrates in civil cases are matters that are
 5   appropriate for inclusion in the Local Rules. Just read L.R. 72-302!
 6   It’s also for Fresno. What a quagmire we have unearthed here, yes?
 7
 8   Now, I must ask you this simple question:      if any defendants in a
 9   civil case fail timely to answer a SUMMONS and COMPLAINT, is it not
10   generally well known that they will probably lose by default? This is
11   certainly one of the clear and unambiguous warnings that are exhibited
12   on AO Form 440: SUMMONS IN A CIVIL CASE.      On the SUMMONS form we
13   obtained from the Clerk of Court in Sacramento, it reads: “If you fail
14   to do so [i.e. answer], judgment by default will be taken against you
15   for the relief demanded in the complaint.” Clear enough, yes?
16
17   And, is it not also generally well known, at least among the legal
18   community, that a defendant who attempts to appear by means of an
19   unlicensed attorney can and should be treated by the court in the same
20   fashion as a party who fails to answer? This is certainly the clear
21   and correct holding in U.S. v. High Country Broadcasting, 3 F.3d 1244
22   (9th Cir. 1993) (entry of default judgment was proper when unlicensed
23   corporate president attempted to represent his corporation in court).
24
25   Now, it does not take a rocket scientist to understand this: a MOTION
26   TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS could and
27   should result in striking all motions to dismiss previously filed by
28   defendants who attempted to appear by means of unlicensed attorneys.
29   Therefore, such a motion must be dispositive because, if granted after
30   proper adjudication, it will justify entry of default judgment.
31
32   Accordingly, I do not think I am being irrational one bit to argue
33   that General Order 345 never authorized Mr. Drozd to rule summarily on
34   my MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS, in
35   part because it was a dispositive motion. Without seeing a certified
36   copy of that ORDER, I also expect that it issued from the Art. IV USDC
37   -- for Fresno and not for Sacramento.         Sacramento has no L.R.
38   72-304(c)(15) or (17). Equally important, L.R. 1-102(a) says that no
39   litigant shall be bound by any General Order! This is very confusing.
40
41   Directly contrary to many well established principles and Laws in
42   force in America, what did Mr. Drozd do with my MOTION TO STRIKE ALL
43   PLEADINGS BY ATTORNEYS LACKING CREDENTIALS? Answer: on Page 5 of his
44   ORDER AND FINDINGS AND RECOMMENDATIONS, filed on December 31, 2001,
45   EOR Vol. Three of Four, Tab 38 (Docket #142) he writes in a footnote
46   (what a guy!):
47
48        At the hearing the undersigned granted plaintiff an opportunity
49        to be heard in opposition to the motions to dismiss.      At that
50        time plaintiff argued that ... (2) defendants’ attorneys are
51        improperly appearing before this court because they have failed
52        to produce proper credentials upon plaintiff’s demand ....     At
53        the hearing the court ... rejected plaintiff’s other arguments as
54        frivolous [referring to (2) supra]. [bold emphasis added]
55
                MEMO to Chief Judge Mary M. Schroeder, Ninth Circuit,
                         December 26, 2002 A.D.: Page 3 of 7
 1   Well, it also appears entirely logical to conclude that, by writing
 2   this footnote, Mr. Drozd has now branded the Ninth Circuit’s holding
 3   in High Country as “frivolous.” Wouldn’t you also agree? I think so.
 4
 5   More to the point, if Mr. Drozd had been a California State Bar member
 6   in good standing for 5 years, as required by 28 U.S.C. 631(b)(1), he
 7   should have known that striking a motion to dismiss -- because it was
 8   filed by an unlicensed attorney -- is surely a decision likely to
 9   result in entry of default judgment. This is a dispositive ruling!
10
11   Slyly to escape this very probable result -- by mis-labeling my MOTION
12   as a “non-dispositive” one, so that Mr. Drozd might “deny” it -- is
13   also an act of pure sophistry, in my honest and professional opinion.
14   Summary denial was contrary to fact, particularly when those same
15   attorneys later failed to answer proper and lawful SUBPOENA’s issued
16   by the District Clerk for the very same missing credentials!
17
18   Sanctions for obstructing discovery and contempt of court are now in
19   order, not dismissal with prejudice! See 17 U.S.C. 512(h), in chief.
20
21   Using General Order 345 for limited guidance, then, this matter of
22   missing licenses must have been “dispositive” per force because it
23   appears in a footnote on Page 5 of the findings and recommendations
24   written by Mr. Drozd, which were then presented to William B. Shubb
25   for his approval (magistrate to rule on ... all dispositive motions by
26   findings and recommendations).    Repeating once again, L.R. 1-102(a)
27   says that no litigant shall be bound by any General Order.
28
29   I do hope the above will help you to appreciate much better the utter
30   depth of my frustration with Mr. Drozd, particularly when he continued
31   to berate me with possible sanctions for not obeying the USDC’s Local
32   Rules, not only in his several specious “orders” but also publicly
33   during the preliminary hearing had on December 14, 2001 A.D.
34
35   There is an obvious and painful double standard at work here when Mr.
36   Drozd will not even obey those same Local Rules himself, particularly
37   when he regards those Local Rules as enforceable upon all parties.
38   For example, see Local Rules 83-180(a) (“signing the prescribed oath”)
39   and 83-180(e) (“complying with Standards of Professional Conduct”).
40
41   I now regard his actions in this case to be grounds for charging him
42   with obstruction of justice, in particular because he never did enjoy
43   civil jurisdiction to rule on such motions absent the consent of all
44   parties. See Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc.,
45   725 F.2d 537 (9th Cir. 1984) with emphasis on your fine dissent in that
46   case, e.g. headnote 21: consent of all parties is essential to the
47   constitutionality of the Federal Magistrates Act, and headnotes 4-6:
48   the constitutional right here may be waived, and waiver must be freely
49   and voluntarily undertaken. I never waived any fundamental Rights.
50
51   The Supreme Court has already ruled that waivers of fundamental Rights
52   can never be presumed. See Ohio Bell v. Public Utilities Commission,
53   301 U.S. 292 (1937). My Right to due process of law is a fundamental
54   Right under the Guarantee Clause and the Seventh and Tenth Amendments.
55
                MEMO to Chief Judge Mary M. Schroeder, Ninth Circuit,
                         December 26, 2002 A.D.: Page 4 of 7
 1   Having first learned about General Order 345 only this morning, I also
 2   reserve my fundamental Right to challenge it also for violating
 3   Article III, and to introduce it into appeal #02-15269 as “newly found
 4   evidence” admissible in the context of the APPLICATION FOR WRIT IN THE
 5   NATURE OF QUO WARRANTO recently filed by the United States ex rel.
 6
 7   Without the consent of all parties, Mr. Drozd usurped jurisdiction
 8   over matters that mandate an Article III judge presiding upon an
 9   Article III court of competent jurisdiction. 60 Stat 440.
10
11   I wanted to give you one last chance to prove me wrong, and/or to
12   indicate any errors or omissions you might find in my discussion
13   above, before executing a criminal complaint against Dale A. Drozd --
14   this time for obstruction of justice -- as required by 18 U.S.C. 4.
15
16   Mens rea did exist because Mr. Drozd has also knowingly failed to
17   produce a certificate of oath properly indorsed upon his license to
18   practice law in the State of California, as required by section 6067
19   of the California Business and Professions Code.      Again, see Local
20   Rules 83-180(a) (“signing the prescribed oath”), Local Rule 83-180(e)
21   (“comply with the standards of professional conduct”), with section
22   6067 and 28 U.S.C. 631(b)(1). Who’s breaking the rules here, anyway?
23   The attorneys are, that’s who! See Miranda v. Arizona (no rulemaking
24   or legislation can ever abrogate rights secured by the Constitution).
25
26   Lacking a certificate of oath properly indorsed upon his license to
27   practice law in the State of California, Mr. Dale A. Drozd was never
28   qualified to occupy the office of United States magistrate judge, in
29   the first instance. Let us proceed now to an historic Quo Warranto.
30   I continue to proceed on the premise that my 372(c) COMPLAINT OF
31   JUDICIAL MISCONDUCT against Dale A. Drozd remains assigned to you.
32
33   Thank you, Judge Schroeder, for your independent and unbiased judicial
34   scrutiny of these matters, which are obviously important to me and to
35   many others who now monitor the progress of this case very closely.
36
37   Sincerely yours,
38
39   /s/ Paul Andrew Mitchell
40
41   Paul Andrew Mitchell, B.A., M.S.
42   Private Attorney General and Plaintiff/Appellant
43
44   U.S. Mail:
45      c/o MBE PMB #332
46      501 West Broadway, Suite “A”
47      San Diego 92101
48      CALIFORNIA, USA
49
50   attachments:
51     “ORDER” filed by Dale A. Drozd on Nov. 15, 2001 in
52      Ninth Circuit appeal #02-15269 and 372(c) #02-89005; see:
53      EXCERPTS OF RECORD, Volume Two of Four, Tab 21 (Docket #90)
54
                MEMO to Chief Judge Mary M. Schroeder, Ninth Circuit,
                         December 26, 2002 A.D.: Page 5 of 7
1                                PROOF OF SERVICE

2    I, Paul Andrew Mitchell, Sui Juris, hereby certify, under penalty of

3    perjury, under the laws of the United States of America, without the

4    “United States” (federal government), that I am at least 18 years of

5    age, a Citizen of ONE OF the United States of America, and that I

6    personally served the following document(s):

 7
 8                   MEMO TO CHIEF JUDGE MARY M. SCHROEDER,
 9                U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT:
10                           December 27, 2002 A.D.
11
12   by placing one true and correct copy of said document(s) in first

13   class United States Mail, with postage prepaid and properly addressed

14   to the following:

15
16   Judge Alex Kozinski (supervising)    Clerk of Court (5x)
17   Ninth Circuit Court of Appeals       Attention: Cathy Catterson
18   P.O. Box 91510                       Ninth Circuit Court of Appeals
19   Pasadena 91109-1510                  P.O. Box 193939
20   CALIFORNIA, USA                      San Francisco 94119-3939
21                                        CALIFORNIA, USA
22
23   Ropers, Majeski, Kohn & Bentley      DeForest & Koscelnik
24   (failed to exhibit oaths)           (failed to exhibit oath)
25   1001 Marshall Street                 3000 Koppers Building
26   Redwood City 94063                   436 Seventh Avenue
27   CALIFORNIA, USA                      Pittsburgh 15219
28                                        PENNSYLVANIA, USA
29
30   Murphy Austin Adams Schoenfeld LLP Pillsbury Winthrop LLP
31   (failed to exhibit oaths)         (failed to exhibit oaths)
32   P.O. Box 1319                      400 Capitol Mall, Suite 1700
33   Sacramento 95812-1319              Sacramento 95814-4419
34   CALIFORNIA, USA                    CALIFORNIA, USA
35
36   Curiale Dellaverson Hirschfeld       Quinn Emanuel Urquhart Oliver
37   Kraemer & Sloan, LLP                 & Hedges, LLP
38   (failed to exhibit oaths)            (failed to exhibit oaths)
39   727 Sansome Street                   201 Sansome Street, 6th Floor
40   San Francisco 94111                  San Francisco 94104
41   CALIFORNIA, USA                      CALIFORNIA, USA
42


                MEMO to Chief Judge Mary M. Schroeder, Ninth Circuit,
                         December 26, 2002 A.D.: Page 6 of 7
 1   Office of the General Counsel         Paul Southworth
 2   (failed to exhibit oaths)             2018 N. New Hampshire Ave.
 3   University of California              Los Angeles 90027
 4   1111 Franklin Street, 8th Floor       CALIFORNIA, USA
 5   Oakland 94607-5200
 6   CALIFORNIA, USA
 7
 8   Karl Kleinpaste                       Ram Samudrala
 9   P.O. Box 1551                         UW Micro Box 357242
10   Beaver Falls 15010                    Seattle 98195-7242
11   PENNSYLVANIA, USA                     WASHINGTON STATE, USA
12
13   Laskin & Guenard                      Rivkin Radler, LLP
14   (failed to exhibit oath)              (failed to exhibit oaths)
15   1810 South Street                     1330 N. Dutton Ave., #200
16   Sacramento 95814                      Santa Rosa 95401-4646
17   CALIFORNIA, USA                       CALIFORNIA, USA
18
19   Harvey Siskind Jacobs LLP             Office of Solicitor General
20   (failed to exhibit oaths)             950 Pennsylvania Ave., N.W.
21   3 Embarcadero Center, Ste. 1060       Room 5614
22   San Francisco 94111                   Washington 20530-0001
23   CALIFORNIA, USA                       DISTRICT OF COLUMBIA, USA
24
25   Register of Copyrights                Steinhart & Falconer LLP
26   Library of Congress                   (failed to exhibit oaths)
27   101 Independence Avenue, S.E.         333 Market Street, 32nd Floor
28   Washington 20559-6000                 San Francisco 94105-2150
29   DISTRICT OF COLUMBIA, USA             CALIFORNIA, USA
30
31   Matheny Sears Linkert & Long LLP      Latham & Watkins
32   (failed to exhibit oaths)             (failed to exhibit oaths)
33   P.O. Box 13711                        633 West Fifth St., Ste. 4000
34   Sacramento 95853-4711                 Los Angeles 90071-2007
35   CALIFORNIA, USA                       CALIFORNIA, USA
36
37   Courtesy copies:
38
39   Clerk of Court                     Hon. Sandra Day O’Connor (supervising)
40   Attention: Jack L. Wagner          Supreme Court of the United States
41   501 “I” Street, Suite 4-200        One First Street, Northeast
42   Sacramento 95814-2322              Washington 20543-0001
43   CALIFORNIA, USA                    DISTRICT OF COLUMBIA, USA
44
45   [Please see USPS Publication #221 for “addressing” instructions.]
46
47
48   Dated:    December 30, 2002 A.D.
49
50
51
52   Signed:  /s/ Paul Andrew Mitchell
53            __________________________________________________________
54   Printed: Paul Andrew Mitchell, Relator/Appellant In Propria Persona
                 MEMO to Chief Judge Mary M. Schroeder, Ninth Circuit,
                          December 26, 2002 A.D.: Page 7 of 7

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:8
posted:7/1/2012
language:English
pages:7